Michele Gesualdi v. Marnie Lynn Cope, 2016 ONSC 3086

Court File and Parties

COURT FILE NO.: 35362/13 DATE: 2016-05-09 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MICHELE GESUALDI, Applicant AND: MARNIE LYNN COPE, Respondent

BEFORE: Gray J.

COUNSEL: Thomas Marshall, Q.C., Counsel for the Applicant Shawn M. Philbert, Counsel for the Respondents

HEARD: March 23, 2016

Endorsement

[1] This matter was tried before me for a determination of two issues:

a) What percentage of time does the child of the relationship spend with each parent? b) What should the applicant’s income be considered to be, effective January 1, 2017?

[2] I heard the evidence of both parties on March 23, 2016. Counsel agreed to submit written submissions, which have now been filed.

[3] As to the first issue, counsel for the applicant submits that the child spends 38 per cent of his time with the applicant. The respondent submits that the appropriate figure is 37.2 per cent.

[4] In order that s. 9 of the Child Support Guidelines have application, it is necessary that the child spend time with each parent at least 40 per cent of the time. The parties are in agreement that that threshold has not been reached. Accordingly, whether I accept the applicant’s figure or the respondent’s, the result is the same: s. 9 of the Guidelines does not apply.

[5] As far as the second issue is concerned, the applicant was formerly employed by Applewood Air Conditioning. He left his employment in October, 2014, and started his own business in January, 2015. He says he has earned very little money since starting his own business.

[6] His annual earnings until 2014, as reflected in his tax returns, were as follows:

2009 $50,576 2010 $61,624 2011 $66,604 2012 $74,614 2013 $77,886 2014 $49,782

[7] In 2015, the applicant’s tax return reflects an income of $10,662. The applicant testified that for the year 2016, he would expect to earn approximately $30,000.

[8] On cross-examination, the applicant acknowledged that he sometimes receives cash for jobs that he does. No receipts are issued in such cases.

[9] The applicant testified that after he left his job in 2014, he lived off his savings, RRSPs, and whatever he has earned in his own business. He said he decided to “kick back” and take more time with his son.

[10] In a final order of Justice Coats, issued on consent, dated March 23, 2016, it is stated that the applicant’s imputed income for support purposes shall be fixed at $76,000 for the year 2016.

[11] Counsel for the applicant submits that his anticipated income effective January 1, 2017 should be fixed at his expected income in 2016 of $30,000. Having regard to his self-employment status, this would be reasonable. Counsel relies on Quintal v. Quintal, Brain v. Brain (2000), Chatwood v. From, [2000] O.J. No. 3990 (O.C.J.); and McCormick v. McCormick, [2013] O.J. No. 468 (S.C.J.).

[12] Counsel for the respondent submits that income should be imputed to a child support payor who quits his job to start his own business, when there is no reasonable financial incentive to do so. In this case, the applicant made a decision to quit his job and live off savings and his RRSPs for the most part, so that he could “kick back” and spend more time with his son. While the objective of spending more time with the child is laudable, it cannot be done at the expense of making provision for his child when he is perfectly capable of doing so.

[13] Further, and in the alternative, counsel for the respondent submits that the applicant’s claim as to his level of income should be viewed with some scepticism, as he admits that he receives cash payments for which he does not keep written records. It is probable that he is earning considerably more than what he claims.

[14] Counsel relies on Neeteson v. Neeteson (2007), 45 R.F.L. (6th) 164 (Ont. S.C.J.); Friday v. Friday, [2013] O.J. No. 1510 (S.C.J.); MacMaster v. MacMaster, [2014] O.J. No. 5926 (S.C.J.); and Wehbe v. Wehbe, [2016] O.J. No. 1086 (S.C.J.).

[15] In my view, the applicant’s income for 2017 should be attributed at the amount of $75,000 per annum.

[16] I am not satisfied that the applicant’s reasons for leaving his well-paid job, namely, so that he could “kick back” and spend more time with his son, are sufficient so as to allow him to avoid his financial responsibilities to his son. In my view, it would be reasonable to attribute income to him at a rate that he is well able to achieve if he applies himself, and indeed he did achieve when he did apply himself.

[17] Furthermore, it is clear that the applicant earns some undefined amount from cash receipts. It is obviously impossible to know how much this amounts to, but it renders it even clearer, in my mind, that the applicant should have a reasonable income attributed to him for support purposes.

[18] For these reasons, I attribute income to the applicant, effective January 1, 2017, at the rate of $75,000 per year.

[19] I will entertain brief written submissions as to costs from each party, not to exceed three pages, together with a costs outline. Counsel for the respondent shall have five days to file submissions, and counsel for the applicant shall have five days to respond. Counsel for the respondent shall have three days to reply.

Gray J. Date: May 9, 2016