SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS 09-348634
DATE: 2012-09-21

RE: JIN LU , Applicant

AND:

ALICE ZHAO , Respondent

BEFORE: WHITAKER, J.

COUNSEL:
JIN LU, Applicant on his own behalf
HAIYUN WANG, for the Respondent

HEARD: September 17, 2012

ENDORSEMENT

Overview

1 . This is an application for a divorce, an equalization payment for a Chinese property and access. At the outset of the trial, the applicant abandoned a claim for the equalization of debt.

2 . The respondent brings a cross application for child support and arrears.

Facts

3 . The applicant and respondent met in 1995 and began to live with each other in China. During this period, the applicant was married to his first wife.

4 . In 1996 a condominium apartment property was purchased by the respondent in Guang Dong province in China. The property is registered in the name of the respondent and it was purchased with funds from her own personal bank account. There is no evidence other than the applicant’s assertion, to support the conclusion that the applicant has any interest in the property.

5 . On August 25, 1997 a daughter was born. She is now 15.

6 . From 2000 to 2008 the applicant owned an import/export business. During this period he would spend time in Canada and China.

7 . The applicant had as overhead, payroll, premises and inventory. The business operated on a cash transaction basis for the most part. Much of the income from the business went undeclared and was available to the applicant for his own use.

8 . The parties married in China on August 22 of 2005, following the applicant’s divorce from his first wife

9 . The applicant sponsored the respondent and daughter for their move to Canada in December 2005.

10 . The parties agree the separation date is August 20 of 2007.

11 . The respondent and the daughter became landed in December 2007.

12 . The applicant has made no attempt to contact the child since October 2008.

13 . By order of Paisley J. dated August 31, 2009 and on consent, the respondent was granted sole custody of the child.

14 . By order of Mesbur J. dated February 29, 2012 the applicant was granted access to the child once a month in a public place. The applicant has not made any effort to see the child in the interim.

15 . I am told that the child does not wish to see or have contact with the applicant.

16 . The respondent claims extraordinary expenses of violin lessons, tutoring and orthodontic services. The respondent claims $170 per month for violin lessons and tutoring and $2000 as a lump sum payment for orthodontic services already rendered. It is anticipated that a further $2000 expense will be incurred for the orthodontics.

17 . In June of 2008, the applicant offered to pay the respondent child support of $300 dollars a month.

18 . The applicant’s total income from his Notices of Assessment filed are:

2003 $31,826
2006 $00.00
2007 $00.00
2008 $7,188
2009 $24.390
2010 $27,469
2011 $31,795

19 . For 2012, the applicant filed pay stubs from his job at Yutech Machine Works. The stubs indicate that he was earning typically $1200 every two weeks for an estimated annual income of $31,200.

20 . The respondent suggests that the applicant be imputed income for 2007 and 2008 from his import/export business which continued to operate with premises, inventory and staff for these two years before being wound up.

21 . Both parties agree that a divorce is appropriate.

22 . There is no final order dealing with child support.

Outcome

23 . A divorce is granted.

24 . There is no factual basis for an equalization payment with respect to the applicant’s request concerning the condominium property in China. This request is denied.

25 . There is no issue as to the respondent’s entitlement to child support and the only issue is quantum. There is no challenge to the request for arrears payable from the date of separation in August 20, 2007.

26 . I am prepared to impute income to the applicant for the years 2007 and 2008 in the amounts of $30,000 and $20,000 respectively.

27 . Income for purposes of calculating the child support table amounts for the six years since separation are ;

2007 $30,000
2008 $20,000
2009 $24,390
2010 $27,469
2011 $31,791
2012 $31,200

28 . I am satisfied that the expenses for a tutor and violin lessons are exceptional. The applicant shall pay $100.00 a month as a portion of the expenses.

29 . The respondent is entitled to receive arrears of child support and exceptional expenses retroactive to the date of separation.

30 . The current ongoing monthly child support will be $260.00, and the total with the exceptional expenses is $360.00.

Orders

31 . The divorce is granted.

32 . The applicant is entitled to arrears based on application of the Ontario child support guidelines to the amounts of yearly income described in paragraph 27 of this endorsement. Arrears are for the period from the date of separation to today.

33 . The parties are to attempt to agree on the quantum of arrears owing by the respondent in accordance with the application of the child support guidelines to my findings set out in paragraph 27 above, Failing agreement, the parties may each provide me with their respective proposed calculations within two weeks.

34 . The monthly child support payments inclusive of the extraordinary expenses are 360.00.

35 . Future orthodontic expenses up to a limit of a further $2000 shall be paid by the applicant on receipt of a statement of expense from the respondent.

36 . The applicant shall provide the respondent with his Notice of Assessment on an annual basis.

37 . The respondent is entitled to her costs fixed at $3000 inclusive of taxes and disbursements.

WHITAKER, J.