SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-11-71244-01
DATE: 2014 12 18
RE: ARLINDO RESENDES SOARES and SUSETE SOARES
BEFORE: LEMON J.
COUNSEL:
Ms. Marie Davison, for the Applicant
Mr. Pawel Wojtis, for the Respondent
HEARD: December 11, 2014
ENDORSEMENT
The Issue
[1] Mr. Soares moves to vary his support as ordered, on consent, by Justice Mossip, September 30, 2011. At that time, he was ordered to pay child support in the amount of $931 per month for three children, now ages 15, 10 and 7. This order was based on an annual income of $47,255. Since that time, he says that his income has reduced. He has not paid all of the required support and is presently $13,404 in arrears.
Positions of the Parties
[2] Mr. Soares submits that he made $32,006 in 2012, $28,103 in 2013 and will make $31,716 for 2014. Based on those figures, the child support should be reduced retroactively by rescinding his arrears.
[3] Ms. Soares submits that neither the support nor the arrears should be varied. She says that Mr. Soares earned cash income prior to the separation and she believes that he is still earning cash income. She also points out that since separation, he has twice quit his employment and has made very little effort to find new employment. She has significant doubt about Mr. Soares’ income since he has been very slow to provide what documentation he has and has produced no documentation to support some of his figures.
[4] Both parties requested that I make my ruling based on the evidence set out in the record. Neither wished to call or cross-examine witnesses.
Analysis
[5] I share some of Ms. Soares’ suspicions of Mr. Soares’ evidence given his delay in providing the necessary information. However, I cannot find that he has unrecorded cash income simply because Ms. Soares says so. There is an onus upon her to prove that proposition and there is no evidence to support it.
[6] In many cases, where there is unreported cash income, the payor has a lifestyle that is not consistent with the reported income. Here, Mr. Soares has few assets and has gone bankrupt. His apparent lifestyle is consistent with his reported income.
[7] Mr. Soares has explained the various entries in his bank account. Although he has no documentation to support the amounts that he said were paid to him in cash as gifts from family, those entries are as consistent with his alleged financial circumstances as they are with attempting to hide income. In any event, they are, in total, insignificant amounts that would not substantially change his support obligations.
[8] Mr. Soares’ behaviour is as consistent with a man who does not want to live up to his responsibilities as a man who has no ability to do so and simply fails to come to grips with his situation. On this evidence, I am not prepared to find that he is intentionally deceiving Ms. Soares and the Court. I am satisfied that Mr. Soares has earned the income that he deposes.
[9] The real issue is whether I should vary the support given that he acknowledges that he twice quit his job because he did not like the way he was treated. Each job led to another job that paid him less. Even when he returned to his old employer, he was paid less. The question then is whether he is intentionally unemployed or underemployed as set out in paragraph 19(1) of the Child Support Guidelines.
[10] I agree with Ms. Soares that Mr. Soares was foolish to quit secure employment for minor reasons. On the first occasion, I also agree that he was slow to find new employment. Neither action was in keeping with his obligations to support his children. If he did not like his working conditions, his answer was to apply for a new job, not leave secure employment. But for those decisions, Mr. Soares would still be earning the same, if not more, than as set out in the 2011 order. There is no basis to vary the order. See: Drygala v Pauli, 2002 41868 (ON CA), 61 O.R. (3d) 711. [2002] O.J. No. 3731 (C.A.).
Result
[11] The motion to vary is therefore dismissed.
Costs
[12] If the parties cannot otherwise agree upon costs, written submissions may be made to me. Ms. Soares shall make her submissions within the next 21 days. Mr. Soares shall make his submissions within 21 days thereafter. Each submission shall be no more than three pages, not including any offers to settle or bills of costs.
Lemon J
DATE: December 18, 2014
COURT FILE NO.: FS-11-71244-01
DATE: 2014 12 18
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SOARES AND SOARES
BEFORE: LEMON J.
COUNSEL: Marie Davison, for the Applicant
Pawel Wojtis, for the Respondent
ENDORSEMENT
LEMON J
DATE: December 18, 2014