COURT FILE NO.: 35444/13 DATE: 2016 05 18 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Nicole Michelene Cassidy, Applicant AND: Paul Emil Bonilla Marion-Landais, Respondent
BEFORE: Trimble J.
HEARD: January 8, 2016 and March 3, 2016 (Written Submissions Received March 16 and 21, 2016)
COUNSEL: Maria Sirivar, for the Applicant, Nicole Michelene Cassidy Matthew Madott, for the Respondent, Paul Emil Bonilla Marion-Landais
REASONS FOR JUDGMENT
Trimble J.
[1] In the trial of this Application the Applicant Mother, Nicole Cassidy, seeks from the Father, Paul Marion-Landais, a) past and future child support from June 26, 2011, b) past and future section 7 expenses from June 26, 2011, and c) an order that he pay life insurance premiums on a life policy he took out before the child was born. All other issues have been resolved. The central issue to be determined is the Father’s income for support and section 7 purposes.
Family Facts:
[2] The parties met on October 11, 2008 when Mother was vacationing in the Dominican Republic. At the time of trial, Mother was 46 years old and Father, 28.
[3] Mother is a Canadian citizen and a public health nurse. When she met Father, Mother was already married. That marriage was dissolved by divorce in 2009.
[4] Father was a citizen of the Dominican Republic. At the time that the pair met, he was a student at UNICDA University. After a brief, long-distance courtship they married on 24 February 2009, in the Dominican Republic. On January 29, 2010, Father moved to Canada, with Mother as sponsor. He became a Canadian. The parties separated on June 26, 2011. The Application was issued on February 1, 2013.
[5] The parties have one child: Aayan Emil Marion-Landais, born in Canada on March 2, 2011. Aayan has always lived with Mother. At first, Father’s access was restricted and supervised until those issues were resolved, when access increased and became unsupervised.
[6] Pursuant to the June 21, 2013 Interim Order of Gray J., Father has paid support of $171/month based on imputed income of $21,320.00, or minimum wage. He has never contributed to child care expenses. By temporary order of June 17, 2015, Gibson J. decreased child support to $155./month based on Father’s Line 150 income of $19,461.50, and ordered that he contribute 29% toward s. 7 expenses. Father questions the amount of the expenses as reasonable.
[7] Gibson, J. fixed support arrears at $1,921.92, and payable at $50 per month. The effect of this aspect of Gibson, J.’s ruling is in dispute.
Incomes Gleaned from Evidence:
[8] By way of summary, the evidence of each party about his/her own incomes is as follows:
| Year | Mother’s Income | Father’s Income |
|---|---|---|
| 2011 [1] | 23,480 | |
| 2012 | 11,887 | 15,203 |
| 2013 | 42,561 | 12,651 |
| 2014 | 49,072 | 14,090 |
| 2015 | 37,368 [2] | $30,000 [3] |
Mother’s Evidence and Position on Father’s Income:
[9] Mother says that the Court should impute income to Father of $60,000 per year since separation. Father is only 28. He is healthy. He earns little, and certainly below the capacity of a healthy 28 year old male. He is pursuing a career as an actor and stunt man, which is not reasonable for a man with child support obligations.
[10] Father has told stories of working for a SWAT team in the Dominican Republic and being on the security detail for that country’s First Lady.
[11] Mother has little information from Father about his work in Canada. Since separation, she said that he worked for MasterCard for a short time. He provided little disclosure as to his income until he produced a Financial Statement sworn on 16 October, 2015. Just before the aborted beginning of this trial on 17 November 2015. At that time, he also made further disclosure, causing an adjournment of the trial.
[12] Mother cross examined father extensively on bank account documents he produced in November, 2015 in an attempt to establish that he had income far in excess of that claimed.
[13] With respect to the incomes referred to in Gibson, J.’s June 17, 2015 temporary order, those incomes were without prejudice to the trial judge reassessing them.
Father’s Evidence on Father’s Income:
[14] Father pleaded that he went to University. In his oral evidence, however, he said that he went to a technical school and obtained his certificate in computers. From 2006 to 2009, he worked as a security guard for the Dominican First Lady earning 5000 pesos p.a. In this role he was chief of military protocol for international relations, liaising with other governments re foreign diplomats in the Dominican.
[15] After coming to Canada, he was unemployed until January 2010 as he was learning English. He worked at a call centre from October, 2010 to June 22, 2011 working nights at $12/hr. He was hired because he spoke Spanish. His contract ended after 10 months. He did not make disclosure of information regarding his 2010 income, as ordered, so I terminated this line of evidence.
[16] From 2010 onward, Father began to pursue a career as an actor and stunt man. He also collected E.I. in 2010. In 2012 to 2013, Father worked 2 to 3 days/week at various jobs, earning little. In 2012 he had a 3 month contract at another call centre, at $500/week.
[17] Other than this work, his income from 2012 to present came from his work as an actor and stunt man. While not working actively he studied and took courses in his chosen field. He is a full member of ACTRA (the actors’ union). His pay goes to his agent, who takes 20%. If the pay is made out to the agent, Father receives the net amount. If the pay is made out to Father, it is sent to the agent, and Father must pay 20% to the agent.
[18] With respect to his income, Father stated that it was as listed in his financial statement.
[19] With respect to the incomes referred to in Gibson, J.’s temporary order, those were final decisions on income, intended to fully resolve past support issues.
[20] With respect to the transfers in and out of his bank accounts, he identified those deposits arising from his work. The remainder of the outflow was to pay bills. Other deposits were transfers from his current cohabiting partner, or their joint account.
Father’s Credibility:
[21] Father has little credibility. I say this for a number of reasons, which include:
a. Father was cross examined on his resume. He neglected to mention in chief that a) he completed three semesters at University in Hotel Management, b) he achieved the rank of Colonel in the First Lady’s security service, and c) he had military training with the U.S. Military. He exaggerated his U.S. military training involvement to the Office of the Children’s Lawyer. He exaggerated to the OCL his involvement in the Dominican security services. No evidence was provided documenting any of his supposed involvement with the US military or the Dominican Secret Service. b. Second, Father’s disclosure has been abysmal. Notwithstanding orders dated April 189, 2013, August 22, 2013, November 15, 2013, December 30, 2013, May 16, 2014, November 14, 2014, February 13, 2015, and October 9, 2015, Father made no meaningful disclosure until the first day this Application was called for trial in November, 2015, which resulted in an adjournment. That disclosure contained nothing about his employment in the Dominican Republic, and appears to be incomplete with respect to his employment in Canada.
The Law on Imputation of Income:
[22] The main case on imputation of income in a family matter is Drygala v. Pauli, 2002 ONCA 41868, [2002] O.J. No. 3731 (C.A.), which addressed under what circumstances under section 19 (1)(a) of the Federal Child Support Guidelines a person may be found to be intentionally underemployed or unemployed.
[23] In Drygala, the father was a tool and die maker. He did not like the trade and did not do well at it. He decided to become a school teacher and entered university to pursue his certification in teaching. The result was a drop in his income. The Trial Judge found that he could and should have pursued part time work while studying. He attributed to the father income of $30,000 for support purposes.
[24] The Court of Appeal looked at the meaning of “intentionally underemployed” as used in the Child Support Guidelines (“CSG”). It held that while the statute required a voluntary act in order to be “intentional” there was no requirement that the voluntary act have a bad faith component or the specific intention to defeat support. The CSG imposes on every parent the obligation to earn what s/he is capable of earning. There is intentional unemployment or underemployment when a party chooses not to work when capable of earning an income or not to work to his/her full capability. Section 19 of the CSG does not apply to situations in which the payor, through no fault of his own, cannot work (lay off, termination, or employer reduced hours). The CSG, however, provides flexibility between the obligation to support children, and the need to have “meaningful work” (see Drygala para. 35). A parent is not excused from support obligations when he wants to pursue unrealistic or unproductive career aspirations (see Drygala, para. 39). The spouse seeking to reduce support must show that the educational pursuits are reasonable, and are reasonably pursued in light of the support obligation.
[25] There is a clear line of authority which stands for the proposition that even if the payor has a reduced ability to pay support (normally a condition that qualifies as a change in circumstances under section 17(4) of the Divorce Act or section 37 of the Family Law Act) a payor cannot reduce support where the reduced income arises from the events over which the payor had some control.
[26] Most of the seminal cases involve situations where the payer’s income is reduced because of criminal convictions:
a) Luckey v. Luckey, 1996 ONSC 11217, [1996] O.J. No 1960 (Gen. Div), in which the payor was convicted of sexual assault of a co-worker, as a result of which he lost his job and entitlement to unemployment benefits. b) Myatt v. Myatt, 1993 BCSC 1144, [1993] B.C.J. No. 215 (S.C.), in which the father lost his job as a police officer because of drug issues for which he was convicted, after termination. Support was not reduced, but he was allowed to access RRSP funds to pay child support. c) Marucci v. Marucci, [2001] O.J. No. 4888 (S.C.), in which the payer left a dead end job to return to school to re-educate. The Court found that there was no reasonable excuse for the payor taking the course he took, and imputed income to him.
[27] This principle has been affirmed in other trial level decisions. Zisman J., ordered a reduction in child support where the father suffered a period of six months of unemployment following his firing for cause, and two of the three children had become independent. With respect to the job loss, Zisman J. held that the father was not entirely responsible for his being fired. The conduct which justified his firing was not new and the employer knew about it. Once he was fired, the father took all reasonable steps to find replacement work. Hence, she did not find him “intentionally unemployed” such that income should be imputed to him (see Quinn v. Quinn, 2013 ONCJ 393 (O.C.J.), para 69).
[28] French v. Williams, 2016 ONCJ 105 set out the following principles:
a) A parent’s obligation to support his or her children takes precedence over the parent’s own interests and choices. b) A parent cannot knowingly avoid or diminish, and may not ignore, his or her obligation to support his or her children. c) A parent must act responsibly when making decisions that may affect his/her ability to pay child support. d) The determination to impute income is discretionary, as the court considers appropriate in the circumstances. e) A parent will not be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations or interests, nor will it be acceptable for a parent to choose to work for future rewards to the detriment of the present needs of his or her children, unless the parent establishes the reasonableness of his or her course of action.
[29] The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed, and must establish an evidentiary basis upon which this finding can be made (see: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552 (Ont. C.A.).
[30] If the party can establish that the other parent is intentionally unemployed or under-employed, the onus shifts to the payor to prove that he acted reasonably and must show this in a compelling way (see: Riel v. Holland, 2003 ONCA 3433, 2003 ONCA 3433 (Ont. C.A.), at paragraph 23).
[31] The trial judge must determine whether the educational needs claimed by the payor are reasonable (see: Drygala, supra, paragraph 39).
[32] As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income (see: Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi, 2000 ONSC 22560, [2000] O.J. No. 453, (Ont. Fam. Ct.); Drygala, supra, paragraph 39).
[33] The court in Drygala expands on what is required to determine if the educational needs of a payor are reasonable in paragraphs 40 and 41 as follows:
[40] But, s. 19 (1) (a) speaks not only to the reasonableness of the spouse's educational needs. It also dictates that the trial judge determine what is required by virtue of those educational needs. The spouse has the burden of demonstrating that unemployment or under-employment is required by virtue of his or her reasonable educational needs. How many courses must be taken and when? How much time must be devoted in and out of the classroom to ensure continuation in the program? Are the academic demands such that the spouse is excused from pursuing part-time work? Could the program be completed over a longer period with the spouse taking fewer courses so that the spouse could obtain part-time employment? If the rigours of the program preclude part-time employment during the regular academic school year, is summer employment reasonably expected? Can the spouse take co-operative courses as part of the program and earn some income in that way? These are the types of considerations that go into determining what level of under- employment is required by the reasonable educational needs of a spouse.
[41] The burden of proof is upon the spouse pursuing education as he or she is the person with access to the requisite information. The spouse is in the best position to know the particular requirements and demands of his or her educational program. He [page721] or she will have information about the hours of study necessary to fulfill such requirements, including the appropriate preparation time. He or she is in the best position to show whether part-time employment can be reasonably obtained in light of these educational requirements.
[34] It is not reasonable for a payor to return to school and not pay support, unless it is justified by a sufficient increase in earning ability that will benefit the children (see Carter v. Spracklin, 2012 ONCJ 193).
[35] If there is no reasonable excuse for the payor’s under-employment, in imputing income, the court must have regard to the payor’s employment history, age, education, skills, health, available employment opportunities and the standard of living earned during the parties’ relationship to determine what income the party could earn if he or she worked to capacity (see: Lawson v. Lawson, 2006 ONCA 26573).
[36] The court will usually draw an adverse inference against a party for his or her failure to comply with their disclosure obligations as provided for in section 21 of the guidelines and impute income (see: Smith v. Pellegrini, 2008 ONSC 46927, [2008] O.J. No. 3616, (Ont. S.C.); Maimone v. Maimone, 2009 ONSC 25981, [2009] O.J. No. 2140, (Ont. S.C.).
[37] Justice Pazaratz said in Jackson v Mayerle, 2016 ONSC 72, added that the court cannot arbitrarily allocate an imputed income. There must be a rational basis for the amount selected and it must be grounded in the evidence. The absence of a reasonable job search will also usually leave the court with no choice but to find that the payor is intentionally under-employed or unemployed (see: Filippetto v. Timpano, 2008 ONSC 3962, [2008] O.J. No. 417, (SCJ); Gonzalez v. Garcia (supra)).
[38] The Court must remember that parents can take jobs which earn less money as long as the decision is reasonable. An employment decision results in a significant reduction of child support must be justified in a compelling way (see: Riel v. Holland, 2003 ONCA 3433, [2003] O.J. No. 3901 (C.A.); Rilli (supra); G.T.B. v. Z.B.B., 2014 ONCJ 382 (OCJ). Where a lazy, self-centred party is content to receive minimal income or to languish in underemployment because his or her needs are being met by receiving support from another family member or a new partner, income will be imputed (see: Tillmanns (supra); Stewart (supra)).
Imputation Analysis:
[39] I conclude that I should impute income to Father of $21,320 for 2013, $25,000 in 2014, $30,000 in 2015 and $35,000 in 2016.
[40] Why do I say this?
[41] Father is a fit, healthy, intelligent young man. He has military and secret police training. He has some (albeit incomplete) education in computers and the hospitality industry. He has experience working in bureaucracy. Notwithstanding that English is not his mother tongue, he spoke it excellently at trial. His ability to earn income ought to have increased along with his language skills.
[42] Rather than find permanent work commensurate with his education and skills, Father has pursued a career in acting and as a stunt man. In this pursuit, until 2015, he has earned less than full time minimum wage since 2012.
[43] Since 2013, Father has lived with Ms. Heller, his 28 ½ year old common law partner, who is a full time Youth Programs Worker. They have shared rent and expenses equally for their studio apartment. No evidence was given as to her income, but Father has benefitted by her paying half the living expenses he would have incurred fully, otherwise.
[44] Father has made a choice. Rather than pursue remunerative full time work commensurate with his education and training, he decided to pursue a career in acting or as a stunt man, to pursue training toward this goal, and to become a full member of ACTRA, the actor/stuntman’s union. I do not find this reasonable. Even if I did find it reasonable to pursue the career path the Father has chosen, the part time work he performed from 2012 to current, has been minimal. Had I found that Father’s decision to pursue his career path and training toward that end reasonable, the effort he put into working part time was not. He ought to have worked more than he did. Father chose his career path at the expense of his obligation to do all that is reasonable to meet his child support obligation. He paid no child support before Gray, J.’s order in June 21, 2013. Mother has been left with the entire responsibility of supporting the child. This is profoundly unfair to the mother and the child.
[45] Notwithstanding his pursuit of an acting career, Father estimates that he will earn only $30,000 in 2016. Given his incomes in 2012 to 2015, the reasonable course of action would have been to obtain employment while he studied to become an actor and stunt man, so that he could support his son.
[46] Father did not provide evidence to satisfy the court that his chosen employment path was a reasonable excuse for not earning income and paying child support. He is 28 years old. He has had no major or starring roles. He provided no evidence that convinces me that he might find his “big break” soon, or at all. His chosen path is highly speculative.
[47] Further, Father provided incomplete disclosure notwithstanding repeated orders to do so. He had no excuse for not doing what he was ordered to do. Even when I adjourned the trial by two months to permit his late disclosure, he had still more financial information which he gave to the Applicant only at the outset of the trial in January. I refused to receive that late evidence.
[48] Between his credibility issues and his lack of disclosure, I cannot accept that Father’s pursuit of a career in acting and as a stunt man is reasonable. To be clear, Father is free to do as he pleases. He is not free to act unreasonably and avoid or reduce his obligations in child support.
[49] I put no specific weight on the evidence concerning money that moved in and out of Father’s bank accounts. Disclosure which would have permitted any meaningful assessment of this evidence was deficient.
[50] What Income do I Impute?
[51] Mother asked the court to impute the father’s income at $60,000 per annum. There was no evidence to support this claim.
[52] I conclude that Father is capable of earning more than a minimum wage income since 2013 and more than $30,000 today.
[53] Imputing income is arbitrary and intuitive, but necessary once the Court finds that a parent is unintentionally under-employed or unemployed. So long as his language skills were rudimentary, Father’s earning potential would have been limited to minimum wage jobs. For child support purposes, it is reasonable to conclude that he would not have had meaningful, remunerative work until 2012. Therefore, for calendar 2012 and 2013, I impute income of $21,320, or minimum wage. As his language skills increased, it is reasonable to impute income to him of $25,000 in 2014, $30,000 in 2015 and $35,000 in 2016.
[54] Based on these incomes child support arrears to May 31, 2016 are $5,150 based on the following:
| Year | F’s Income | Mo. C/S | Ann. C/S | Amt. Paid [4,5,6,8] | Owing |
|---|---|---|---|---|---|
| 2012 | $21,320 | 171 | 2,052 | 0 | 2,052 |
| 2013 | 21,320 | 171 | 2,052 | 1,026 | 1,026 |
| 2014 | 25,000 | 200 | 2,400 | 2,052 | 348 |
| 2015 | 30,000 | 245 | 2,940 | 1,956 | 984 |
| 2016 | 35,000 | 303 | 1,515 [7] | 775 | 740 |
| Totals | 10,959 | 5,809 | 5,150 |
[55] I assume that F.R.O. deducted child support pursuant to the two orders regarding support. The “Amt. Paid” column in the chart, above, gives Father credit for all payments under the Gray, J. and Gibson, J. orders, to May 31, 2016.
[56] If support under the Gray, J. and Gibson, J. orders was not paid or collected by F.R.O., the sums in the chart, above, will have to be adjusted based on any amounts actually paid or collected prior to May 31, 2016.
Effect of Gibson, J.’s Order of June 17, 2015:
[57] Mother submits that Gibson, J.’s order, a consent order, was interim, only, and subject to any findings made at trial. Father says that insofar as arrears are concerned, the order was final, and fixed all arrears to that time at $1,921.92. Father also submits that the incomes stated in Gibson, J.’s order are also findings of fact, not now open to review.
[58] I conclude that the income findings made by Gibson, J. and the arrears fixed, were interim only. The heading in the order about support arrears includes the phrase “…temporary” and the incomes listed were listed as the basis of the incomes for the Father that were used to determine the support arrears. Gibson, J.’s findings are not binding on me.
Future Child Support:
[59] Based on my income findings, above, Father shall pay to the mother table child support for one child of $303.00 for 13 months beginning on June 1, 2016. F.R.O. is to collect child support. S.D.O. to issue.
[60] In the future, I hold that Father’s annual income for support purposes in 2017 and afterward will be his actual income or $40,000, whichever is greater. The parties shall make income disclosure annually by June 1, including C.R.A. assessments and tax returns for the preceding tax year, and with respect to the Father, supporting documents regarding income, deductions from income, and expenses. Monthly child support shall be table support, recalculated based on the income disclosure described above. Table child support shall be adjusted for the twelve months beginning July 1 of each year.
Section 7 Expenses:
[61] The parties agreed by Minutes of Settlement dated November 9, 2015 (subsequently made into an order) that Mother would have sole custody of the child. Therefore, decision making with respect to activities that would attract extraordinary expenses is Mother’s responsibility, although under the Minutes of Settlement, she is obliged to inform Father of extra-curricular activities in which she enrolls the child.
[62] Day Care: Mother claims that she was off work for her maternity leave. She returned to work in February 2013, and required child care thereafter. She only works 3 days a week. She used baby sitters and a nanny until a spot became available at a day care that was good, close to her work or home, was clean, had good programs, offered education in Spanish (Father’s mother tongue), and accommodated her commute to work in Toronto. Since November 22, 2015, she has paid $645/month for such daycare. She must still make arrangements for 3 hours of babysitting before daycare. Mother applied for a daycare subsidy shortly before trial. If she is accepted, daycare, going forward, would be $75/month.
[63] Father says Mother is not entitled to any past section 7 expenses. He takes this position notwithstanding that he has contributed nothing to section 7 expenses until Gibson, J. ordered him to on June 17, 2015.
[64] Father said that Mother chose extraordinary day care and child care facilities, far beyond what is reasonable. In addition, she did not seek his input into daycare arrangements. She simply presented him with the claim for expense. Further, Father says Mother is underemployed, working only 3 days per week, and did not need the day care she chose. Adverse inferences should be drawn because she did not call any of those who provided day care in order to substantiate the cost, including her own mother. Instead, she produced a few cheques as proof of payment. He says that she did not apply for the $7000 tax deduction available for child care expenses. Because of all of this, it is impossible to determine the net amount that she actually paid for day care expenses.
[65] Father invites the Court to fix a flat amount for section 7 expenses under section 7(1) of the Divorce Act. His real submission, however, is that Mother has failed to prove her case on day care.
[66] Dental Expenses: There is no real issue on these.
[67] Past section 7 Expenses: Mother says that she incurred section 7 expenses for child care and dental expenses for the child totalling $15,511.95 for 2013, $6,951.37 for 2014, and to October 16, 2015, of $5,378.
[68] Father is correct that Mother did not lead the best evidence respect to her day care claim. However, there is sufficient evidence for me to find that her claim for past section 7 expenses is proved. Part of the reason for my finding this is Father’s refusal to pay section 7 expenses until order to do so by Gibson, J. in June 2015. Further, Father has the onus to establish the lower level of section 7 expenses that he claims. Father criticized Mother, roundly, about buying a “Rolls-Royce” daycare plan. He said that he made phone calls and found out that there was much cheaper day care available. This evidence, however, was hearsay. Father brought forward no admissible evidence about the less expensive day care available. I discounted this evidence wholly, in part because it was hearsay, and in part because it was Father’s effort, expended only between the aborted trial date in November 2015 and the commencement of the trial in January, 2016, to create a defence to this aspect of Mother’s claim. The Father admitted that he only made the inquiries about cheaper day care between the first trial date in November, 2015, and the resumed trial in January, 2016.
[69] Accepting Mother’s calculation of day care and dental expense for the period from January 1, 2013 up to and including October 15, 2015, Father’s arrears are as follows:
| Year | Father’s Income. | Mother’s Income | Father’s % | s. 7 Expenses total | Father’s arrears |
|---|---|---|---|---|---|
| 2013 | 21,320 | 49,561 | 35 | 15,511.95 | 5,429.18 |
| 2014 | 25,000 | 49,072 | 35 | 6,951.37 | 2,432.97 |
| 2015 | 30,000 | 37,368 [9] | 45 | 5,378.00 | 2,420.01 |
| 2016 [10] | 35,000 | 37,368 | 48 | ||
| Total: | 10,282.16 |
[70] For the period of October 15, 2015 to July 1, 2016, the total arrears is $3,495.70 [11]. Father is entitled to a credit of $756.36 [12] for section 7 expenses paid pursuant to Gibson, J.’s order. Therefore, the total day care and dental expense arrears to date are $13,021.50.
[71] Life Insurance: After Mother became pregnant, but before the child was born, the parties each took out life insurance policies of $700,000.00. The premium for each policy is $39.69 per month. Father has not paid a premium since separation on June 26, 2011. Mother has maintained the premiums on his policy.
[72] Premium arrears to June 1, 2016 are $2,341.45.
[73] The total net arrears for all section 7 expenses (daycare, dental and insurance premium) is $15,362.95. F.R.O. shall collect as support an additional $256.00/month for 60 months beginning on July 1, 2016 on account of section 7 arrears. After 60 payments of $256.00, the F.R.O. deduction for arrears to July 1, 2016 shall cease.
[74] I order that effective June 1, 2016, F.R.O. will collect as support an additional $39.69/month for this future insurance premium. This is subject to increase if and when the premium actually increases. Mother shall advise F.R.O. and Father immediately upon learning of any premium increase.
[75] Father and Mother shall maintain the policy until the child ceases to be a child of the marriage. The premium is to be added to child support and collected by F.R.O. so long as the child remains a child of the marriage. If Mother elects to maintain the policy after the child ceases to be a child of the marriage, the continued premium for that policy is hers to pay.
[76] For the 12 month period beginning July 1, 2016, Father shall pay 48% of section 7 expenses, within 30 days of being presented with the invoice for or proof of payment of the expense.
[77] Father’s contribution to future section 7 expenses shall be determined based on the incomes of the parties as determined in accordance with these reasons. Since Father has no say with respect to section 7 expenses incurred, his obligation to pay should be subject to a reasonable cap. The largest section 7 expense is daycare for the child. Mother has applied for a daycare subsidy which will reduce her day care expense to $75/mo.
[78] Father’s contribution to future section 7 expenses shall be capped as follows:
a. If Mother is accepted for a daycare subsidy, so long as the subsidy is in effect, and so long as Father’s imputed annual income for support purposes (as calculated, above) is $40,000 or less, Father’s contribution toward future section 7 expenses is capped at $150/mo. b. If Mother does not qualify for the daycare subsidy, so long as Father’s imputed annual income for support purposes (as calculated, above) is $40,000 or less, Father’s contribution toward future section 7 expenses is capped at $400/mo. c. If Father’s imputed annual income for support purposes (as calculated, above) exceeds $40,000, Father’s contribution toward future section 7 expenses is capped at $500/mo.
[79] Section 7 expenses for every twelve month period beginning July 1 in any given year, beginning July 1, 2017, shall be shared based on the incomes of the parties. Father’s income shall be the greater of his actual income and $40,000.
[80] Father shall pay his share of section 7 expenses, within 30 days of being presented with the invoice for or proof of payment of the expense.
[81] If Father and/or Mother becomes entitled, through employment, to health, dental or other insurance (other than life insurance), each party so entitled shall obtain it naming the child as a beneficiary, and maintain that insurance so long as it is available to the party so long as the child remains a child of the marriage. The section 7 expense which is to be shared by the parties shall be the amount not covered by both policies of insurance. In this respect, each shall provide to the other a copy of the current membership information with respect to the work related medical/dental plan.
Other Orders:
[82] The Divorce is severed from the corollary relief and may proceed in the normal course.
Costs:
[83] The parties may address who should pay whom costs, and in what amount, in written submissions not to exceed 5 pages in length, exclusive of cases and bills of costs. Mother’s are due 3 weeks after the release of these reasons, and Father’s five weeks after the release of these reasons.
Trimble J.
Date: May 18, 2016
COURT FILE NO.: 35444/13 DATE: 2016 05 18 ONTARIO SUPERIOR COURT OF JUSTICE RE: Nicole Michelene Cassidy, Applicant AND: Paul Emil Bonilla Marion-Landais, Respondent BEFORE: Trimble J. HEARD: January 8, 2016 and March 3, 2016 COUNSEL: Nicole Michelene Cassidy, Self-Represented Paul Emil Bonilla Marion-Landais, Self-Represented Reasons for Judgment Trimble J. Released: May 18, 2016
[1] As stated in para. 3.3 of Gibson, J.’s Temporary Order of June 17, 2015. [2] The Mother’s pay stub for the 20th pay period in 2015 (see Mother’s Financial Statement, Trial Record, T. 4, last page) indicated total year to date earnings of $28,744.58 which /20 x26 = 37,368. [3] Father’s Trial estimate. [4] 6 months @ 171 per Gray, J.’s order of June 21, 2013. [5] 12 months @171 per Gray, J.’s order of June 21, 2013. [6] 6 months @ 171 per Gray, J.’s order of June 21, 2014 plus 6 months @ 155 per Gibson, J.’s order of June 17, 2015. [7] 5 months. [8] 5 months @155 per Gibson, J.’s order of June 17, 2015. [9] The Mother’s pay stub for the 20 th pay period in 2015 (see Mother’s Financial Statement, Trial Record, T. 4, last page) indicated total year to date earnings of $28,744.58 which /20 x26 = 37,368. [10] Based on trial evidence and findings above. [11] $5,378.00 equates to $134.45 per week x 26 weeks between October 15, 2015 and July 1, 2016 = $3,495.70. [12] $63.03 x 12 months.