CITATION: Hernandez v. Pena, 2017 ONSC 5722

COURT FILE NO.: FS-13-77325

DATE: 20170929

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Debbie Zenaida Hernandez

L. Simeone, for the Applicant

Applicant

• and -

Juan Carlos Pena

Self-Represented Respondent

Respondent

HEARD: September 18, 2017

REASONS FOR JUDGMENT

McSweeney J.:

1I conducted a trial on the issue of ongoing child support, payable by Mr. Pena (“the Respondent”) to Ms. Hernandez (“the Applicant”). The parties have two daughters: G.A., born December 2003, and R.V., born October 2011.

2By consent agreement reached on June 19, 2017, the parties resolved the following issues: custody and access; equalization; spousal support; and arrears of child support.

Disclosure ordered on June 19, 2017

3On June 19, 2017, Mr. Pena was assisted by a lawyer, Mr. Simone. At that time, he agreed to produce supporting documentation regarding his employment and his health. My consent order of June 19, 2017 indicated as follows:

“Within 30 days of today’s date, the Respondent shall provide the Applicant with the following disclosure:

a. 2015 T1 Income Tax Return;

b. 2016 T1 Income Tax Return

c. 2016 Notice of Assessment;

d. Documentation from Carpenter’s Union/Verdi Alliance regarding termination of employment;

e. Comprehensive medical documentation regarding his ability to pursue employment including records and reports from medical specialists for all health issues he wishes to rely on;

f. All bank and credit statements from all accounts from January 1, 2015 to present.

The Respondent shall serve and file his Affidavit by August 1, 2017.”

4On September 18, 2017, the day of the trial, Mr. Pena attended court without counsel. Although Mr. Pena did not advise the court of this fact until he was cross-examined, the same lawyer, Mr. Simone, also came to court on the morning of trial and offered to assist Mr. Pena at trial. Mr. Pena declined that offer.

5At the start of trial, Mr. Pena confirmed that he had not provided any of the disclosure or filing required of him by the June 19, 2017 order. Mr Pena advised that he would like to proceed to trial without that documentation, and without filing any materials. Ms. Hernandez likewise asked to proceed with the trial.

6Notwithstanding that both parties wished to proceed, I told Mr. Pena that I would stand court down to permit him to review the Memorandum to Self-Represented Litigants (trial exhibit “A”), and/or to meet with duty counsel. He declined my offer, and advised he was prepared to proceed. The trial proceeded.

Evidence at trial

The Applicant’s evidence:

7Both parties testified at trial. Ms. Hernandez supported her testimony with documentary evidence. I find the following facts based on her testimony and supporting evidence.

8The parties married on August 25, 2001, and separated on November 11, 2012. Ms. Hernandez has had primary care of both children since separation. She testified that she worked and went to school intermittently during the parties’ relationship, but was a “stay-at-home” mother from 2009 until after separation. She attended a one-year college social work program in 2009, and has recently completed a certificate in Office Administration at Humber College. She is currently working part-time hours as a server in a coffee shop. She also receives and relies on Ontario Works social assistance. In 2016, her total income was $21,035.00.

9Ms. Hernandez testified that she would like to work full-time hours, but is limited in doing so because of the age of the parties’ younger daughter, who will turn 6 this October, and due to the support required for their older daughter, who suffers from significant anxiety issues. She described as a regular occurrence receiving phone calls from her older daughter’s school and being asked to come and pick her up during the day because her anxiety had become so acute.

10An aggravating stressor for Ms. Hernandez and the children, specifically for the older daughter, is that the subsidized housing in which they currently live is a dangerous environment. Ms. Hernandez testified that recently, a fatal shooting had taken place near the entrance to their apartment building. She stated that her elder daughter saw the dead body on her way home, and was extremely frightened and upset. Ms. Hernandez desires to move the children to a safer environment, but is unable to do so for financial reasons.

11With respect to section 7 expenditures, Ms. Hernandez would require child care for the younger daughter from the end of school until the end of a regular working day, if she is to earn income in excess of her current part-time hours. She testified that such after-school care costs $25.00 per day. On cross-examination, Ms. Hernandez acknowledged that she receives some child care help from her boyfriend, but reiterated that she needs regular after-school care for the younger daughter if she is to pursue full-time employment in the future.

12With respect to extra-curricular programs, Ms. Hernandez she testified that both girls enjoy art and have asked to take lessons. It costs $33.00 per child, per month, to have lessons at the local community centre. She cannot afford this amount on her own.

Respondent’s evidence:

13The Respondent testified as follows in chief. He worked as a carpenter for Verdi Alliance on a range of high-rise building construction projects before and after separation. After the parties separated, he got injured at work, was off on short term disability for three months. He also suffered from depression relating to the stresses he was under. He testified that those stresses included his work injuries, the end of the parties’ relationship, and being separated from his children.

14Mr. Pena testified in chief that he lost his job with Verdi Alliance in December 2015, because a co-worker reported to “the boss” that he had described having suicidal thoughts. Mr. Pena testified that he was dismissed because his employer saw him as a risk in the workplace. He telephoned his employer on several occasions after his dismissal, asking to be rehired, however was unsuccessful.

15Mr. Pena testified that he received employment insurance after he lost his job, and then in 2017, started receiving Ontario Works social assistance. He is currently living with his brother in Richmond Hill. His family doctor is treating him for depression and has referred him to mental health specialists. He stated that he is still seeking further help for his depression and is on medication.

16On cross-examination, the Respondent confirmed that he was a member of a union at Verdi Alliance, but that he had not grieved or otherwise challenged his dismissal as mental health discrimination. He admitted that other workers were laid off when he was, and that his employer had a lack of work at the time of those lay-offs.

17On cross-examination, Mr. Pena also confirmed the accuracy of the income figures he had filed in 2015 (in support of his motion to vary support).

Income Analysis

18Ms. Hernandez’s income was not disputed. I find it to be $21,035 per year.

19Mr. Pena, however, provided no documentation to support his testimony regarding his current income, his loss of employment, his health issues, or his efforts to search for work. The evidence I do have is that Mr. Pena is trained as a carpenter, is skilled at that trade, and earned an hourly wage of $30.00 when he worked for Verdi Alliance. He agrees that he earned the following annual income between 2010 and 2015:

a. $77,967.00 in 2010;

b. $73,328.00 in 2011;

c. $87,518.00 in 2012;

d. $81,996.00 in 2013;

e. $90,705.00 in 2014;

f. For 2015, an extrapolated annual income based on the year-to-date income on Mr. Pena’s February 21, 2015 pay stub, comes to an annual income of $93,703.86. I find this to be his income for 2015 on the evidence.

20I note with respect to the above salary figures, that Ms. Hernandez testified that Mr. Pena worked long and overtime hours when they were together. Mr. Pena confirmed her testimony in this regard.

21The parties’ evidence regarding Mr. Pena’s overtime hours of work from 2010 to 2015 is supported by the following calculation: at a $30/hr wage rate, the annual income for a 40 hour work week would be approximately $60,000. For the years 2010 to 2015, in which his income was significantly more than that, I find on the evidence that Mr. Pena worked significant overtime hours.

22With respect to his current income, Mr. Pena testified that he had provided to Ms. Hernandez’s counsel a payment stub from Ontario Works, showing a monthly payment of approximately $706.00. Although this payment stub was not put into evidence, Ms. Hernandez’s counsel acknowledged receiving it. Based on Mr. Pena’s testimony and this information, I conclude that the Respondent is currently in receipt of social assistance.

23Ms. Hernandez asks that I find on the evidence that the Respondent is currently capable of working as a carpenter, and earning an income at the same levels he did from 2010 to 2015. She asks that I impute to him an annual income for child support purposes based on his 2015 earnings of $93,703.86.

Should I impute income to the Respondent?

24Section 19 of the Federal Child Support Guidelines provides that the court may impute such income as it considers appropriate in the circumstances. Those circumstance include where a parent “is intentionally under-employed or unemployed”. The Ontario Court of Appeal decision in Drygala v. Pauli, 2002 41868 (ON CA), [2002] O.J. No. 3731 has established the analytical framework for intentional unemployment as follows:

• An important objective of the Child Support Guidelines is to ensure that children benefit from the financial means of both parents after separation [para 31];

• Imputation of income does not require a finding that a parent has deliberately avoided his or her support obligation [para 29];

• Intentional unemployment is found where a parent “chooses not to work when capable of earning an income” [para 28]; and

“Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, a parent must earn what he or she is capable of earning.” [para 32]

Application of Imputation law to facts

25The evidence establishes that Mr. Pena is a skilled carpenter who has an ability to earn an income in that trade. He has failed to comply with the court order of June 19, 2017, directing him to provide updated financial information, and so the court is left to determine his income without that evidence. Mr. Pena must earn what he is capable of earning to contribute to the support of his children. I am not satisfied on the evidence that he is unable to work as a carpenter, nor that he has been taking reasonable steps to seek employment.

26It is therefore appropriate that I impute income to the Respondent. To his credit, Mr. Pena has already resolved all retroactive claims with Ms. Hernandez. At this time I am required to impute income only for the period June 19, 2017, forward.

27I accept the Mr. Pena’s evidence that he is currently in receipt of social assistance. However, as found above, I have also determined that Mr. Pena is not currently earning what he is capable of earning.

28Although not supported by medical evidence, Mr. Pena’s testimony that he currently is challenged by mental and physical health limitations was consistent with his manner and affect when testifying. Put in plain terms, Mr. Pena is having a hard time at present. Despite that difficult reality for him, he must still take steps to earn what he is capable of earning.

29In Mr. Pena’s present circumstances, it is not reasonable to expect him to work more than full-time hours as a carpenter. I therefore decline to impute an annual income which would require that he work more than regular full-time hours of approximately 40 hours per week. I therefore impute to Mr. Pena a full-time carpenter salary of $60,000 per year: the evidence suggests that with his skills and experience, he is capable of earning at that level.

Section 7 expenses

30I accept Ms. Hernandez’s evidence that some child care expenses are required for care of the parties’ younger daughter. At this time, Ms. Hernandez is not working full time, so the amount of $300 per month is appropriate based on the information she provided. In addition, $33.00 per child, per month, for art programs, is a modest investment in the girls’ development, which is aligned with their interests and reasonable for this family.

31I therefore find that $366.00 per month is the total for s. 7 expenditures. This amount is to be shared proportionate to each parent’s income. That proportion, based on Ms. Hernandez’s income of $21,035.00, and the Respondent’s imputed income of $60,000.00, is 26% payable by Ms. Hernandez and 74% by Mr. Pena. Mr. Pena’s proportionate share of the children’s monthly section 7 expenses is $270.84.

32I agree with Ms. Hernandez that, in light of the difficulties between the parties and the fact that she has sole custody of the children, it is appropriate that this amount be collected and enforced by the Family Responsibility Office, along with table support, without proof of expenditures being required to be provided in advance.

Costs

33Costs of an attendance before Bloom J. earlier this year, and of the June 19, 2017 attendance referenced earlier, were reserved to trial. Ms. Hernandez was successful at each attendance and at this trial, and is entitled to her costs. Ms. Hernandez’s counsel’s costs are reasonable as to the rate and hours billed to prepare and attend on each date. I fix party and party costs at a total of $11,000.00, inclusive of disbursements and HST. At Ms. Hernandez’s request, this amount is to be paid to her counsel in trust.

34IT IS THEREFORE ORDERED THAT:

1. An annual income of $60,000 is imputed to the Respondent, Juan Carlos Pena.

2. Commencing June 19, 2017, the Respondent, Mr. Pena, shall pay to the Applicant, Ms. Hernandez, monthly child support in the amount of $892.00 table support and $270.84 for section 7 expenses, a total of $1,162.84.

3. Child support in the amount of $1,162.84 shall be collected from the Respondent, Mr. Pena, and remitted to the Applicant, Ms. Hernandez, by the Family Responsibility Office.

4. A Support Deduction Order shall issue.

5. Commencing July 1st, 2018, and by July 1 of each following year for as long as child support is payable, the Applicant, Ms. Hernandez, and the Respondent, Mr. Pena, shall make disclosure to each other of their income from the previous year. Such disclosure shall include a full copy of their annual tax return and all schedules, and the Notice of Assessment received from the Canada Revenue Agency.

6. Future child support for each 12 months, beginning July 1, 2018, and on July 1 of each subsequent year, shall be calculated based on the previous year’s line 150 income. The Respondent, Mr. Pena’s, income for any given year shall be the greater of $60,000.00 and his actual income, and table support shall be calculated pursuant to the Child Support Guidelines.

7. The level of imputation of income to the Respondent may be reviewed at the request of either the Applicant or the Respondent without a material change in circumstances, on or after July 1st, 2018.

8. Costs are fixed at $11,000.00. This amount to be paid by the Respondent, Mr. Pena, to “Wood Gold LLP in Trust”.

9. Formal approval of this Order by the Respondent, Mr. Pena, as to form and content shall be and is hereby dispensed with.

10. Order to issue.

McSweeney J.