COURT FILE AND PARTIES

COURT FILE NO.: 99-FP-253815-000
DATE: 20120821
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Raoul Andres Perez Rivas, Applicant

AND:

Carmen Susana Galleguillos Espinosa, Respondent

BEFORE: Aston J.

COUNSEL:
F. Hernandez, for the Applicant

Respondent, self represented

HEARD: August 13, 2012

ENDORSEMENT

[ 1 ] Both parties have brought motions to change the support provisions in a Divorce Judgment pronounced July 27, 2000. They both seek retroactive revision of the terms of that order. A decision on those motions will follow shortly. This endorsement is to address the applicant’s more immediate motion found at Tab 6 of the Trial Record, the motion which prompted Justices Czutrin and Kiteley to expedite the hearing of the matter.

[ 2 ] The twelve year old support order requires the applicant to pay $661 in child support for his two daughters and $930 spousal support to the respondent, their mother.

[ 3 ] On March 9, 2012, the applicant’s employment with Econolite was terminated by his employer. The confirming letter is found at Exhibit D of Tab 2 of the Trial Record. He was then earning a base salary of $65,000 per year according to that exhibit. [1]

[ 4 ] On his own admission, the applicant was substantially in arrears in his support obligations at that time, though he seeks a retroactive order that would eliminate or severely reduce accumulated arrears under the July 27, 2000 Order.

[ 5 ] After a period of approximately two months during which he had no income other than his $7,500 severance pay, the applicant began to receive employment insurance on May 13 th this year in the amount of $485 per week, which is the equivalent of $25,220 per annum.

[ 6 ] When the respondent found out the applicant had lost his job, she brought a motion to require him to deposit his passports with the court based primarily on her fear that he would leave the country while owing her a very substantial amount of money for arrears of child and spousal support. The applicant filed material on the motion denying that he had any intention of leaving Ontario but agreed to deposit his passports as requested, without conceding that there was any need for him to do so. The order of Paisley J. dated March 20, 2012 was expressly made “on a without prejudice basis”. No finding was made to the effect that the applicant had any intention of leaving Ontario.

[ 7 ] In March, the applicant applied for various jobs in Canada as outlined in paragraph 11 of his affidavit at Tab 2 of the Trial Record. On March 12, 2012 (after his dismissal from Econolite but before he had notice of the motion to restrict him from leaving Canada) he signed up for a three year cell phone contract.

[ 8 ] The applicant has been unsuccessful in finding a new employment opportunity in Canada in his field of telecommunications. In his oral testimony he explained that he is competing in the job market in Canada and internationally with thousands of other similarly qualified employees who have been laid off, including those laid off by major companies in the industry such as RIM and Nokia. He is competing with young and recent college and university graduates. Significantly, he does not have any LTE training or experience in what is now the new standard for mobile phone technology.

[ 9 ] By expanding his job search, Mr. Perez was able to secure an offer of employment on June 16, 2012 from a company called KNS Communications Consultants, a company which may be loosely connected to his former employer. The job offer would have required him to relocate to California and would have paid an initial salary of $45,000 plus benefits including a contribution towards a retirement plan and the potential for up to $4,000 in annual bonuses. In order to accept this employment offer, Mr. Perez brought a motion to release his passports. The respondent opposed the motion, citing fears he would relocate to Chile. That motion could not be determined before July 9, 2012, the date by which Mr. Perez had to accept the employment offer which is found at Tab 4A of the Trial Record.

[ 10 ] Mr. Perez testified that he is still looking for employment in Canada but may have to move to the United States to find suitable employment. He testified he has sent out approximately 400 resumes since losing his job last March.

[ 11 ] I accept the evidence of Mr. Perez and find that he has made a bona fide attempt to get suitable employment, that he is motivated to be gainfully employed and that his employment opportunities in Canada are limited in today’s economic climate. In my opinion, Mr. Perez should not be restricted from looking outside of Canada for suitable employment based on the speculation or fear of the respondent that it might make it difficult or impossible for her to enforce the payment of support for herself and the children. During the time that he was residing in Chile, between March 2008 and April 2010 Mr. Perez did make more or less regular payments, albeit for less than the court ordered amount. I am not satisfied that on a balance of probabilities the respondent has established the likelihood Mr. Perez will flee the jurisdiction to avoid his support obligations. He has lived in Canada for many years. His daughters will continue to reside here.

[ 12 ] The motion at Tab 4 for an order that the applicant’s Canadian passport be returned to him is granted. His motion to temporarily reduce child support and suspend the payment of spousal support pending his obtaining new employment is also appropriate, particularly because he could be working now in California but for the respondent’s insistence that he not leave the country. The applicant was terminated from his employment as of March 9 th but received $7,500 in severance pay, the effect of which is that he lost his employment income effective as of the third week in April.

[ 13 ] A temporary order is granted that the spousal support be temporarily suspended as of April 30, 2012 and that the child support be temporarily varied to $376 per month commencing May 1, 2012, the table amount for two children based upon an income of $25,220, the annualized amount of his current Employment Insurance.

[ 14 ] The costs of this motion and other relief requested will be addressed in the context of the decision on the motions to change which were heard simultaneously with the motion for temporary relief. Paisley J. reserved the costs of the motion before him to the disposition of the motions to change, so those costs will also be addressed later in the decision on the main motions.

Aston J.

Date: August 21, 2012

[1] His salary for six weeks is confirmed as $7,500, which projects to an annual income of $65,000 per annum. This is consistent with what the respondent claims the Court should find the applicant’s income to be in 2011 and into 2012.