ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-10-70444-00
DATE: 2012-05-24
B E T W E E N:
Myriam Beatriz Lanza (also known as Myriam Lanza)
Sarah E. Mott-Trille, for the Applicant
Applicant
- and -
Oscar Alfredo Lanza (also known as Fredy Lanza
Respondent
HEARD: May 23, 2012
ENDORSEMENT
Justice Thomas A. Bielby
[ 1 ] This endorsement relates to the Respondent’s motion to vary the interim support order of Ricchetti J., dated December 16, 2010. The order in issue required the respondent to pay to the applicant spousal support of $2,250.00 per month, on an imputed income of $60,000.00, commencing December 1, 2010.
[ 2 ] In the matter before me, the applicant was represented by counsel and the respondent represented himself with the assistance of an accredited Spanish interpreter.
[ 3 ] The last affidavit filed by the respondent is dated September 8, 2011. The motion was originally returnable on September 14, 2011.
[ 4 ] At the hearing of this motion, the respondent advised that his driver’s licence has been suspended by the Family Responsibility Office for the non payment of support. He submits therefore that he is unemployed and without an income. The Court infers that the license suspension is the reason why the respondent is now pressing his motion to vary.
[ 5 ] Justice Ricchetti gave a written and reasoned decision in making the interim support order. The order was not appealed. I cannot look behind the order or substitute my own views with that of Justice Ricchetti. Accordingly, a variation of support is dependent on the finding of a material change of circumstances occurring since the order of Justice Ricchetti was made.
[ 6 ] It is my opinion that the loss of licence in and of itself is not a material change of circumstance that would warrant a support reduction, notwithstanding the fact that the respondent’s primary occupation, at least recently, is that of a truck driver.
[ 7 ] It is ludicrous to suggest that the respondent can rely on his own default as a material change of circumstances.
[ 8 ] The parties married each other on November 28, 1978 and separated in January 2009 after the applicant alleges she learned the respondent was having an affair. The respondent removed himself from the matrimonial home.
[ 9 ] Justice Ricchetti, in the endorsement in issue, found that the evidence raised serious questions as to the veracity of the respondent. The learned judge spoke of contradictory evidence and the respondent’s failure to disclose relevant information.
[ 10 ] Justice Ricchetti found that the respondent had not disclosed all of his sources of income for 2009 and 2010. At paragraph 29 of his endorsement, the learned judge arrived at the conclusion that the respondent had undisclosed income and was of the opinion, as suggested by counsel for the applicant, that an income of $60,000.00 should be imputed to the respondent.
[ 11 ] Justice Ricchetti referenced the Spousal Support Guidelines, which suggest a range for spousal support from $1,875.00 to $2,387.00, when fixing the monthly support at $2,250.00.
[ 12 ] I also note that the same endorsement requires the respondent to maintain his life insurance with Transamerica and Unity Life Insurance Companies and I accept that he has failed to do so.
[ 13 ] Commencing at paragraph 27 of his endorsement, Justice Ricchetti reviews the respondent’s submissions as to his level of income. The respondent’s evidence was that in 2010 he would earn a gross employment income of $27,101.00 and that his net would be $20,561.00. The respondent submitted that in 2009 he only earned $17, 398.00.
[ 14 ] At the time, the respondent was employed as a truck driver by Tri-NACC Construction Ltd., the employer he would be now working for if his licence was not suspended.
[ 15 ] In his affidavit of September 8, 2011, the respondent submitted that he is only an hourly employee of Tri-NACC and that he is employed for nine months of the year. He further submitted that his gross per week is $670.00 and that he expects to earn in 2011 a gross salary of $20,574.75. It is noted that in each year since separation the respondent travels to Argentina every winter for a few months.
[ 16 ] The respondent also deposes that, in June of 2011, he consented to the applicant receiving the net proceeds from the sale of the matrimonial home totally, approximately $101,146.00. The applicant indicates that the release of these funds, half of which were presumably hers, paid up the arrears of support to June 2011.
[ 17 ] The applicant also submits that, beyond that, the respondent has not made any voluntary support payments.
[ 18 ] The respondent, in his submissions before this court, tried to submit some income figures received subsequent to his affidavit and, on the objection of the applicant, was not permitted to do so. It was clear, however, that he was simply trying to reiterate the position that he took in 2010 that he was only an hourly employee hired to drive a truck.
[ 19 ] The respondent stated that he could not afford the support order and that he had the right to live in dignity and support himself. He said nothing about the dignity and rights of the applicant. It seems he does not understand any ongoing obligation to the applicant.
[ 20 ] The applicant submits that credibility is an issue, given the history of the file. It is submitted that the respondent has had many different occupations in the past and has skills other than that of a truck driver. It is submitted that the respondent is able to work 12 months a year but would rather take extended vacations to Argentina.
[ 21 ] The applicant asks the court to consider section 14(23) of the Family Law Rules which says that a party who does not obey an order that was made on motion is not entitled to any further order from the court unless the court orders otherwise. The section then goes on to provide for additional remedies.
[ 22 ] The applicant submits the motion for a reduction in spousal support ought to be dismissed.
[ 23 ] I am of the opinion that the respondent’s motion ought to be dismissed. The simple fact is there has not been a material change in circumstances since the order of Ricchetti J. in December 2010. The respondent argued then, as he did before me, that his level of income is that of an hourly truck driver working nine months of the year.
[ 24 ] Given the credibility issues and conclusions found by Justice Ricchetti, the respondent has not persuaded me to conclude otherwise. His real argument is, as he said, he cannot afford to pay the support ordered. It is the same argument he made in December 2010.
[ 25 ] I conclude by saying that this matter needs to move ahead as quickly as possible to a trial. There have been multiple motions creating a file that fills two banker boxes. I am advised by counsel that the only remaining issue for trial is spousal support. Counsel for the applicant assured me she would, within a reasonable period of time, arrange a combined settlement/trial management conference with the view of setting a trial date.
[ 26 ] The respondent’s motion to vary the spousal support order of Ricchetti J., dated December 16, 2010, is dismissed.
[ 27 ] Costs of this motion are awarded to the applicant but I will leave the matter of the quantum of those costs to another judge on June 11, 2012, when there is before the court a motion with respect to the costs relating to a number of hearing dates related to various motions.
Bielby J.
Released: May 24, 2012
COURT FILE NO.: FS-10-70444-00
DATE: 2012-05-24
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Myriam Beatriz Lanza (also known as Myriam Lanza Applicant - and – Oscar Alfredo Lanza (also known as Fredy Lanza Respondent ENDORSEMENT Bielby J.
Released: May 24, 2012