ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-09-67548-00
DATE: 2012-03-01

B E T W E E N:

WENBIN MA APPLICANT

• and -
  HONG LU RESPONDENT

IN PERSON
HAIYUN WANG, Counsel for the Respondent

HEARD: February 7, 8, 9 and March 1, 2012

Reasons for judgment

C.J. CONLAN J.

1The parties were married in China in 1995. Their daughter, Yu Xuan Ma, was born on January 14, 1996. The family came to Canada in 1996. The parties separated in late 2008.

2In November 2009, Mr. Ma commenced this Application seeking sole custody of the child; equalization of net family property; and sale of the matrimonial home in Mississauga with the net proceeds divided equally between the parties.

3Ms. Lu sought sole custody of the child with access to Mr. Ma; and child support including contributions from Mr. Ma to section 7 Federal Child Support Guidelines expenses.

4Bielby J. of this Court decided the custody and access issues before Trial by an Order on April 27, 2010 which granted sole custody to Ms. Lu with access to Mr. Ma.

5Lemon J. of this Court granted a divorce on January 24, 2011. Mr. Ma has re-married. Ms. Lu has not. She lives with the young lady, Yu Xuan.

6The matrimonial home had already been sold prior to Trial, with the net proceeds (approximately $164,000.00) being held in trust by the real estate lawyer.

7On consent of the parties, this Court Orders that the net proceeds of sale of the matrimonial home be released from trust forthwith and distributed to the parties on an equal basis .

WHAT SHOULD MR. MA BE ORDERED TO PAY FOR CHILD SUPPORT INCLUDING SECTION 7 EXPENSES?

8Mr. Ma does not oppose paying base child support for his daughter. In fact, he was adamant at Trial on more than one occasion that he wants to pay child support and wants to contribute to her education. That is refreshing. I was generally impressed with Mr. Ma in that he is a loving Father who works hard. The real question is how much child support should he pay which depends on a determination of Mr. Ma’s income. The other issues are whether the Court should Order ongoing child support and/or child support arrears on a periodic or lump sum basis and the apportionment of section 7 expenses between the parties.

9This Court’s overriding concern is what is best for the child. What the parties want plays second fiddle to that paramount consideration.

10Ms. Lu wants this Court to impute income to Mr. Ma, a self-employed businessman in the transportation industry. It is Ms. Lu’s burden to establish on balance that the amount she suggests is a reasonable figure for Mr. Ma’s income. This exercise may be closer to an art than a science.

11In final submissions, Mr. Ma argued that he should pay monthly child support in an amount to be determined by this Court. He did not suggest any specific quantum, nor did he recommend any amount for his income. On the issue of section 7 expenses, Mr. Ma’s position is that he and Ms. Lu should contribute to those equally, 50-50, although he indicated that there would be some unspecified items that he would pay extra for regardless of any Court Order.

12In closing arguments, counsel for Ms. Lu submitted that Mr. Ma should be ordered to pay $5964.00 in child support arrears for the year 2010 based on an imputed income of $53,700.00 and the Guideline table amount of $497.00 per month; $9456.00 arrears for the year 2011 based on an imputed income of $88,700.00 and the Guideline table amount of $788.00 monthly; $9924.00 arrears for the year 2012 based on an imputed income of $93,700.00 and the Guideline table amount of $827.00 per month. In the end, Ms. Lu seeks an Order for lump sum child support in the amount of $45,192.00 for the years 2010 through 2014 plus an Order for periodic child support in the amount of $827.00 per month from the year 2015 onwards. Regarding section 7 expenses, Ms. Lu’s position is that Mr. Ma should be ordered to pay in to Court as security towards his share of the child’s anticipated post-secondary education costs the sum of $33,692.00.

13This Court is not making any Order for lump sum child support with one exception for the first three months of the year 2012, explained further below. That request was not pleaded by Ms. Lu in her Answer at tab 2 of the Respondent’s Trial Record. Parties should generally be held to what they have pleaded, especially here because Mr. Ma acts for himself. Further, the jurisprudence is clear that lump sum child support awards are the exception and not the rule. There are no exceptional circumstances here to justify a lump sum award. The decision cited by Ms. Lu’s counsel, Valenti v. Valenti , 1996 8082 (ON SC) , [1996] O.J. No. 522 (Ontario Court General Division – Metivier J.) is distinguishable in that the payor in that case was found to likely refuse to pay periodic child support. Here, Mr. Ma has always indicated in his testimony and his submissions that he wants to pay child support and will obey a Court Order for same on a periodic basis. Finally, although an award for lump sum child support may be attractive here given the hostility and resentment between the parties and the prior assaultive incident for which Mr. Ma was found guilty, I find that it will likely be a hollow Order as Mr. Ma will not have the means to pay it.

14Mr. Ma’s own evidence at Trial was that his gross business income for the year 2010 was $53,700.00. Thus, this Court Orders that Mr. Ma pay the Guideline table amount of $497.00 monthly in child support arrears for the year 2010 while the child was residing with Ms. Lu. Those payments shall commence on April 1, 2012 .

15Mr. Ma’s own testimony at Trial was that he believes his gross business income for the year 2011 will be $30-40,000.00 more than it was in the year 2010. This Court therefore imputes a gross income to Mr. Ma of $83,700.00 for the year 2011. This Court Orders that Mr. Ma pay the Guideline table amount of $788.00 per month in child support arrears for the year 2011 while the child was living with Ms. Lu. Those payments shall commence on April 1, 2012 .

16Although Mr. Ma testified that he expects his business to expand in 2012, he also said that with expansion comes increased expenses and unknown revenues. There is no reliable evidence on which this Court can impute an income to Mr. Ma for the year 2012 any higher than that for 2011 - $83,700.00. This Court Orders that Mr. Ma pay the Guideline table amount of $788.00 per month in child support arrears for the months of January, February and March 2012. Those payments shall be made in one lump sum on April 1, 2012, totaling $2,364.00 .

17Going forward, this Court Orders that Mr. Ma pay child support in the amount of $788.00 per month commencing April 1, 2012 . That will continue until this Order is varied on a material change in circumstances or terminated when the child, now 16 years old, is independent.

18For clarity, on April 1, 2012, Mr. Ma is required to pay $4437.00 calculated as follows : $497.00 as the first monthly payment towards the 2010 arrears plus $788.00 as the first monthly payment towards the 2011 arrears plus $2,364.00 as the lump sum payment for the months of January through March 2012 plus $788.00 as the payment due on a monthly basis for ongoing child support. A Support Deduction Order shall issue accordingly.

19This will undoubtedly be a lot of money for Mr. Ma. But the child shall not suffer by ordering some ridiculously low amount towards the arrears from 2010 and 2011, especially given that Ms. Lu has no present ability to work (confirmed by a medical report from a few months ago filed as an Exhibit at Trial) and nil current income.

20The only section 7 expense advanced in closing submissions by counsel for Ms. Lu is the child’s anticipated post-secondary education. At this stage, that expense is speculative. I see no basis to Order that Mr. Ma pay more than $33,000.00 in to Court as security in the event that his daughter goes to college or university. That request was not pleaded. It will be difficult enough for Mr. Ma to obey the child support ordered above.

21This Court Orders that Mr. Ma pay two-thirds of the cost of any mutually agreed upon education expenses for the child. The expense must be reasonable. It must be agreed upon by the parties in advance. Mr. Ma and Ms. Lu need to cooperate in this regard for the betterment of their daughter.

22I wish to thank the parties, Ms. Wang and the Mandarin interpreters for their assistance throughout the Trial. The future is bright for young Yu Xuan, and continued cooperation between her parents will only foster her potential.

23The parties shall prepare for the Court’s consideration a draft Final Order in accordance with these Reasons for Judgment.