Court File and Parties

Ontario Court of Justice

Date: 2015-05-12

Court File No.: Halton 77/14

Between:

Elsa Cerda Applicant

— And —

Juan Jose Rojas Piaggio Respondent

Before: Justice Victoria Starr

Written application – uncontested trial form 23C

Reasons for Judgment released on May 12, 2015

In Chambers – No One Appearing

STARR J.:

INTRODUCTION

[1] The Applicant has brought a support application for the child, Kayleene Valentina Cerda, born February 14, 2009, pursuant to the Inter jurisdictional Support Orders Act, 2002, as the Respondent, Juan Jose Rojas Piaggio, resides in Dorval, Quebec. As the reciprocating jurisdiction, Quebec requires a provisional order to be made by this Court, the order below will be provisional.

[2] The Respondent was served with the Application by special service on January 8, 2015 in Québec. He did not defend the proceedings by serving and filing an Answer. The matter proceeded to an uncontested trial with no one appearing and based solely upon written material.

[3] In reaching its decision, the court has reviewed the Application issued December 15, 2014, the Applicant's Affidavit for Uncontested Trial (Form 23C), sworn April 25, 2014; the Applicant's Affidavit for Uncontested Trial, sworn March 10, 2015, including the exhibits thereto, and the Supplementary Affidavit sworn by the Applicant on April 21, 2015.

THE EVIDENCE

[4] The evidence sets out the following material facts:

(a) The Respondent and the Applicant were involved in a brief relationship. They cohabited for less than one year;

(b) The Applicant became pregnant and the parties separated while the Applicant was in the first trimester of her pregnancy. The Applicant moved back to Ontario;

(c) The parties are the biological parents of the child, Kayleene Valentina Cerda, born February 14, 2009;

(d) The Applicant was awarded final custody of the child by order of Justice S. O'Connell, dated May 1, 2014. That order was made on an uncontested basis after the court noted the Respondent in default due to his failure to defend the proceedings;

(e) The Applicant and the child currently reside in Burlington, Ontario and the Respondent resides in Dorval, Quebec.

(f) The Respondent has not been an active father to the child. He has however sent occasional child support payments to the Applicant;

(g) The Respondent provided the following documents to the Family Support Worker for the Region of Halton, Ontario:

i. His 2011, 2012 and 2013 Income Tax Returns;

ii. Pay stub from his current employer, Delmar International Inc., dated January 15, 2015; and,

iii. International money transfer to the mother of his child (a different child) in Peru to the attention of Tracey Pottruff, Family Support Worker for the Region of Halton.

[5] The Respondent's acknowledgement that he has a responsibility to support the child is evident from copies of various e-mail communications exchanged between Ms. Tracey Pottruff (Family Support Worker for the Region of Halton, Ontario) and the Respondent.

[6] All of the documents referred to above as having been provided by the Respondent are attached as exhibits to the Affidavit for Uncontested Trial of the Applicant, sworn March 10, 2015.

FINDINGS OF FACT

[7] Based on the court's review of the evidence including the forgoing documentation, the court makes the following factual findings with respect to the Respondent's circumstances:

(a) The child is a minor and a dependant;

(b) The Respondent is the biological father of the minor child and as such, has a financial obligation to support the child;

(c) In 2011 the Respondent's line 150 income was $30,510;

(d) In 2012 the Respondent's line 150 income was $32,959;

(e) In 2013 the Respondent's line 150 income was $26,250;

(f) In 2014 the Respondent began working for his current employer, Delmar International Inc. a company located in Lachine, Quebec;

(g) His paystub dated January 15, 2015 shows that the Respondent works 70 hours bi-weekly at a rate of $20.87 per hour, yielding gross bi-weekly earnings of $1,461.54. This amount prorated over a 52 week period would yield a gross annual income of $38,000.04; and,

(h) The Respondent has a child from a different relationship who resides in Peru with the child's mother. The Respondent has made payments to assist in the support of this child directly to the child's mother in Peru.

ANALYSIS

[8] This hearing was conducted pursuant to the procedure set out in Part II -- New Orders of the Act (Claimant in Ontario).

[9] Section 7(1) of the Act reads as follows:

7(1). If the claimant reasonably believes that the respondent ordinarily resides in a reciprocating jurisdiction that requires a provisional order, the Ontario court may, on the claimant's application and without notice to the respondent, make a provisional order taking into account the legal authority on which the claimant's application for support is based.

[10] Child support is calculated in Ontario using the Ontario Child Support Guidelines, O. Reg. 391/97 ("the Guidelines"). The Guidelines provide that the basic amount of child support to be paid (the table amount) depends on the Respondent's income and the number of children. The Applicant does not seek contribution from the Respondent towards any expenses that would qualify as special or extraordinary expenses under section 7 of the Guidelines, which would have required an analysis of the applicant's income.

[11] When determining income Ontario courts generally use the most recent income information [See Vanos v. Vanos, 2010 ONCA 876].

[12] The year-to-date pay stub produced by the Respondent is for a very short timeframe. I accept the Applicant's submission that his income should be determined by prorating his earnings during that two-week period over a 52 week period, particularly given that his hours of work and pay rate appear to be regular. Further, it would not be appropriate to determine his income on the basis of his declared income for 2013 as he had a change of employment in early 2014. This Court finds that the Respondent's current income is $38,000.00. The Guideline table amount for one child based on the Respondent's current income of $38,000 is $336 per month.

[13] There is a presumption in section 3 of the Guidelines that the table amount of support will be ordered by the court. In fact, the court's discretion to award an amount that is different from the Guideline table amount is limited to those situations described in sections 3(2) (children over the age of majority), 4 (income over $150,000), section 8 (split custody), section 9 (shared custody), and section 10 (undue hardship). On the evidence before me, the only possible section under which this Court could exercise its discretion to award an amount other than the table amount would be under section 10. Before the court is able to exercise its discretion it must first find that the Respondent would otherwise suffer undue hardship. There is insufficient evidence for this court to make such a finding. Consequently, the presumption that the Respondent shall pay the Guideline table support of $336 per month prevails.

[14] The Applicant suggests a start date of April 1, 2015 for the Respondent's child support obligation. I find that this is fair since the Respondent has had notice of the Applicant's request for child support from, at least, the date he was served with this Application. That was, according to the Affidavit of Service sworn January 9, 2015, on January 8, 2015.

THE ORDER

[15] For the forgoing reasons this court orders that a provisional order will go on the following terms:

(a) The Respondent shall pay the Applicant child support of $336 per month on the first day of each and every month commencing on April 1, 2015, for the child, Kayleene Valentina Cerda, born February 14, 2009. This is the Guideline table amount for one child based on his current annual income of $38,000.

Released: May 12, 2015

Signed: "Justice Victoria Starr"