CITATION: Sarmiento v. Ortiz, 2017 ONSC 7570

OTTAWA COURT FILE NO.: FC-03-1229-4

DATE: 2017/12/20

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Carmenciata Sarmiento

Applicant

– and –

Gerardo Ortiz

Respondent

Fan MacKenzie, for the Applicant

John Guest, for the Respondent

HEARD: November 21, 2017

REASONS FOR JUDGMENT

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[1] The Applicant, Ms. Sarmiento, has brought a Motion to Change the Order of Justice de Sousa dated April 12, 2005 in respect of child support for the two children of her relationship with Mr. Ortiz, Carl Ortiz, born August 20, 1990 and Jerico Justin Ortiz, born June 23, 1998.

[2] Justice de Sousa’s order provided that Mr. Ortiz would pay to Ms. Sarmiento $322.00 per month in support of the children representing the Federal Child Support Guidelines table amount for two children on an annual income of $23,064.00. The order also included a provision that: “Mr. Ortiz will provide to Ms. Sarmiento a copy of his Income Tax Return and Notice of Assessment by June 1st each year, commencing June 1, 2005.”

[3] These facts are not controversial; until the filing of Ms. Sarmiento’s motion to change, Mr. Ortiz had never provided her with copies of his Income Tax Returns. His income increased over the years, and he continued to pay $322.00 per month in support.

[4] There was no evidence before me to suggest that Mr. Ortiz ever advised Ms. Sarmiento of increases in his income. Indeed, in her motion to change filed January 18, 2017, Ms. Sarmiento stated: “Nothing has been updated and I have reason to believe that his income has changed.”

[5] Ms. Sarmiento is seeking an order for the following:

• retroactive support from January 1, 2006 to August 31, 2011 for Carl;

• retroactive support from January 1, 2006 to December 31, 2016 for Justin;

• retroactive section 7 expenses from January 1, 2006 to December 31, 2016;

• on-going support for Justin commencing January 1, 2017 in accordance with the FCS Guidelines; and,

• a proportionate sharing of on-going section 7 expenses.

[6] Ms. Sarmiento would also like income imputed to Mr. Ortiz for 2016 on the basis that he was “voluntarily” unemployed or underemployed that year.

[7] Mr. Ortiz is in agreement with an ongoing child support order for Justin from January 1, 2017 in accordance with his income pursuant to the Guidelines, and with a proportional sharing of the on-going s. 7 expenses. He is, additionally, prepared to pay retroactive support for Justin from June 1, 2014, being three years prior to what he says was the first discussion the parties had regarding support. Mr. Ortiz disputes that he should be required to pay retroactive support (including section 7 expenses) from 2006 to 2014 for Justin, and he disputes that he should be required to pay any retroactive support (including section 7 expenses) for Carl. He does not agree that income should be imputed to him for 2016.

[8] Mr. Ortiz also brought a cross-motion seeking to strike certain paragraphs and/or Exhibits from Ms. Sarmiento’s affidavit materials. I heard the motion to strike first and delivered an oral decision in relation thereto. This endorsement is with respect to the main motion.

[9] For the reasons that follow, I find that Mr. Ortiz is required to pay retroactive child support for both children from January 1, 2009 to August 31, 2011, and for Justin from September 1, 2011 to December 31, 2016. I also find that Mr. Ortiz is required to pay his proportional share of section 7 expenses for the same periods. For these purposes, I do impute income to Mr. Ortiz for 2016. There will also be an order terminating support for Carl as of September 1, 2011, to which both parties agree, and an order for on-going child support and proportional section 7 expenses for Justin.

[10] The issues to be determined are:

1. Is Mr. Ortiz required to pay retroactive child support and to contribute to retroactive section 7 expenses?

2. Should income be imputed to Mr. Ortiz for 2016?

3. What is the quantum of retroactive child support and section 7 contributions payable?

4. What is the quantum of on-going child support and section 7 contributions for Justin?

Issue #1 – Is Mr. Ortiz required to pay retroactive child support and to contribute to retroactive section 7 expenses?

Background Facts

[11] The parties were married on February 5, 1992, separated in 2001 and divorced on February 6, 2004. The aforementioned two children, Carl and Justin, were born of their relationship.

[12] The parties entered into a separation agreement dated March 5, 2002, in which Mr. Ortiz agreed to pay Ms. Sarmiento $400.00 per month in support of the children. Within two years of that agreement, Mr. Ortiz fell into arrears of child support and Ms. Sarmiento registered the agreement with the Family Responsibility Office for enforcement.

[13] The parties came before the court in 2005 and as I indicated above, Justice de Sousa made an order dated April 12, 2005, which provided that Mr. Ortiz would pay Ms. Sarmiento $322.00 per month in child support on his annual income of $23,064.00; that he would additionally pay $53.00 per month towards the outstanding arrears; and, that he would provide Ms. Sarmiento with a copy of his income tax return and notice of assessment by June 1st every year, commencing that very year.

[14] Mr. Ortiz indicated in his affidavit that he was in court that day and he remembers the Judge reading the decision to him and that he was given a copy of the order. He indicated, however, that he filed it away and never thought of it much thereafter. He did not provide Ms. Sarmiento with a copy of his income tax return or notice of assessment for 2004 by June 1st of 2005.

[15] Between 2000 and 2008, Mr. Ortiz was working for a company called “Filtran”. He was laid off in 2008 when Filtran was bought by an American company which closed the Ottawa operation. In 2006, Mr. Ortiz's income was $26,344.00; in 2007 it was $39,395.00 and in 2008 it was $29,709.00.

[16] In late 2008, Mr. Ortiz was hired by Aerogold, a security company which had the contract for the Canadian Air Transport Security Authority (CATSA) to provide security at the Ottawa International Airport. In 2009, Mr. Ortiz made $42,238.00. In 2010, he made $45,295.00 and in 2011, he made $47,287.00.

[17] In November of 2011, a security company called “Garda” was successful in obtaining the contract for CATSA, and rather than being laid off, Mr. Ortiz was hired by Garda, and his income was thereafter as follows:

• 2012 - $44,367.00;

• 2013 - $50,154.00;

• 2014 - $45,948.00; and,

• 2015 - $50,827.00;

[18] In May of 2016, Mr. Ortiz decided to take a trip to the Philippines. According to his affidavit, his reason for doing so was because his mother was ill. Mr. Ortiz was entitled to three weeks of vacation from Garda, however, he booked a trip for four weeks, from May 6 to June 5, 2016. His evidence was that he was arranging to have his shifts during the last week of May 31 to June 6 covered by colleagues. Regardless of what Mr. Ortiz thought he was doing, his evidence was clear that he did not have management approval to take the additional week off. Upon his return from the Philippines, Mr. Ortiz was fired from Garda for cause. His union grieved his dismissal and ultimately he was allowed to return to work on a “last chance” basis in October of 2016. Mr. Ortiz had to requalify for a number of certifications and did not actively start back to work until December of 2016. In his affidavit evidence, Mr. Ortiz stated that he had applied to “many” different security guard jobs in the interim, between June and October of 2016, but he provided no proof of this. He also stated he had one interview and applied for one job as a machine operator in the high tech sector. Mr. Ortiz’s income in 2016 was $32, 158.00.

[19] In his affidavit, Mr. Ortiz states that he held a genuine belief that his support payments were being adjusted in accordance with his income by the Family Responsibility Office. He held this belief because 1) he contacted FRO whenever he changed jobs such that his support could continue to be enforced by them, and 2) he thought that the Revenue Canada Agency (RCA) was sharing his annual income with FRO. Mr. Ortiz indicated that he did not pay attention to what was being deducted from his pay stubs, but he assumed that it was child support in the appropriate amounts.

[20] When Mr. Ortiz lost his job in June of 2016, he contacted FRO to tell them, and he states that he was informed that he had been overpaying support for Carl, as support for him should have ended in August of 2011.

[21] Ms. Sarmiento stated in her affidavit evidence that as a result of Mr. Ortiz ceasing to pay any support in September of 2016, she contacted FRO and was also told that Mr. Ortiz had overpaid support by over $6000.00. FRO wrote a letter to Mr. Ortiz dated October 17, 2016, which indicated that enforcement of support for Carl was terminated as of August 20, 2011, and support for Justin was adjusted to $203.00 per month as of September 1, 2011. Mr. Ortiz had a credit of $6657.06 which was the equivalent of 32.8 months of support at $203.00 per month, and therefore, he would not be required to recommence paying support until approximately May of 2019. It was a result of this situation that Ms. Sarmiento filed her motion to change.

[22] Ms. Sarmiento says that she had asked Mr. Ortiz for money from time to time over the years, but that he had never provided it. Mr. Ortiz states that when Ms. Sarmiento asked him for money, it was for specific things, such as soccer registration. He did not recall any discussion wherein Ms. Sarmiento was asking for increased child support from him.

Position of the Parties

[23] Ms. Sarmiento says that Mr. Ortiz knew or ought to have known of his obligations to share his income information and update the amount of his child support payments pursuant to the order of Justice de Sousa dated April 12, 2005. Most significantly from her perspective, Mr. Ortiz was required by that order to share his income tax returns and notices of assessment with her by June 1st of every year. To her, this implied that Mr. Ortiz was under a corresponding duty to adjust the support he was paying in accordance with his income.

[24] Mr. Ortiz’s position is that he held an honest belief that he was fulfilling his child support obligations, and if Ms. Sarmiento felt otherwise, it was incumbent upon her to provide him notice that it ought to be increased. She never did so, and she should therefore be barred by application of S. (D.B.) v. G. (S.R.), 2006 SCC 37 (S.C.C.) (hereinafter referred to as D.B.S.) to seek retroactive support going back more than three years.

Analysis

[25] In D.B.S., the Supreme Court of Canada identified that there are a number of factors that a court should consider before making a retroactive child support award. They are:

• Reasonable excuse as to why support was not sought earlier;

• Conduct of the payor parent;

• Circumstances of the child; and,

• Hardship occasioned by a retroactive award.

Reasonable Delay

[26] With respect to the first factor, the court stated at paragraph 100 of the decision: “The circumstances that surround the recipient’s choice (if it was indeed a voluntary and informed one) not to apply for support earlier will be crucial in determining whether a retroactive award is justified.” One of the reasonable excuses identified at paragraph 101 in D.B.S. is where the “recipient parent lacked the financial or emotional means to bring an application.” Ms. Sarmiento asserts that this was just her situation. The submission of her counsel was that Ms. Sarmiento firstly is of limited means and has had a valid reason for shying away from the court process, in that when the application was brought in 2005, Ms. Sarmiento ended up with a lower child support payment from Mr. Ortiz than the $400.00 per month previously agreed to, and she ended up with some legal fees. As a result, Ms. Sarmiento was not inclined to commence a further court action unless she was sure it was worth her while to do so. Ms. Sarmiento states that she had no knowledge of Mr. Ortiz’s substantial increase in income, as he had never informed her about it, and she, therefore, never knew if it was worth her while to attempt to seek more child support.

[27] Ms. Sarmiento, secondly, states that she was left with providing the fulltime primary care to Carl and Justin with little help of any kind from Mr. Ortiz, who has seen very little of the children over the years. Justin, in particular, has suffered from serious mental health issues which have resulted in his hospitalization, and being closely followed by professions. Ms. Sarmiento states that she has been forced to take vacation time and leave without pay to accommodate Justin’s needs. Ms. Sarmiento’s emotional or psychological resources were being used to attend to Justin’s issues and meet the needs of the children. She simply didn’t have the energy required to take on Mr. Ortiz.

[28] Third, Ms. Sarmiento submits that she was intimidated by Mr. Ortiz making statements either to her or to her son, Carl, to the effect that he would quit his job and move to the Philippines or go to jail before he would pay any higher support to Ms. Sarmiento (all of which statements Mr. Ortiz denies making).

[29] It is for all of these reasons that Ms. Sarmiento only filed her motion to change once she had no other choice, namely at the point that FRO was advising the parties of a perceived overpayment of support by Mr. Ortiz.

[30] In D.B.S., the court states at paragraph 102: “Notably, the difference between a reasonable and unreasonable delay often is determined by the conduct of the payor parent. A payor parent who informs the recipient parent of income increases in a timely manner, and who does not pressure or intimidate him/her, will have gone a long way towards ensuring that any subsequent delay is characterized as unreasonable.”

[31] Mr. Ortiz did not inform Ms. Sarmiento of income increases, in either a timely manner or at all. Based on this fact, and on Ms. Sarmiento’s other stated reasons, I find that she has reasonable excuse for delay.

Conduct of Payor Parent

[32] With respect to the second factor, conduct of the payor parent, the Supreme Court of Canada found at paragraph 105 of D.B.S. that “the payor parent’s interest in certainty is least compelling where (s)he engaged in blameworthy conduct.” The court went on to find at paragraph 106 that the court should take an expansive view of blameworthy conduct and not hesitate to take it into account when determining whether there should be a retroactive award. Bastarache J. stated in that paragraph that “a payor parent cannot hide his/her income increases from the recipient parent in the hopes of avoiding larger child support payments…And a payor parent cannot mislead a recipient parent into believing that his/her child support obligations are being met when (s)he knows that they are not.”

[33] Mr. Ortiz would take issue with a characterization that sees him misleading Ms. Sarmiento on the basis that he had a genuinely held belief that he was fulfilling his obligations. However, at paragraph 108 of D.B.S., when discussing the subjectiveness of blameworthy conduct Justice Bastarache stated:

For instance, the existence of a reasonably held belief that (s)he is meeting his/her support obligations may be a good indicator of whether or not the payor parent is engaging in blameworthy conduct. In this context, a court could compare how much the payor parent should have been paying and how much (s)he actually did pay; generally, the closer the two amounts, the more reasonable the payor parent’s belief that his/her obligations were being met. Equally, where applicable, a court should consider the previous court order or agreement that the payor parent was following. Because the order (and, usually, the agreement) is presumed valid, a payor parent should be presumed to be acting reasonably by conforming to the order. However, this presumption may be rebutted where a change in circumstances is shown to be sufficiently pronounced that the payor parent was no longer reasonable in relying on the order and not disclosing a revised ability to pay.

[34] Mr. Ortiz’s income had fluctuated somewhat between 2005 and 2008, but by 2009 it had become, and thereafter consistently stayed at, nearly double what it had been at the time of the 2005 order. Yet, at no time did Mr. Ortiz inform Ms. Sarmiento of this development. By 2011, Mr. Ortiz had secure employment with Garda at more than two times the salary he had at the time of the order in 2005. If Mr. Ortiz had a genuinely held belief that he was fulfilling his child support obligations prior to 2009, it became completely unreasonable for him to do so after 2009. Mr. Ortiz’s evidence, moreover, that he thought the Canada Revenue Agency was updating FRO as to his increases in income completely lacks credibility as his deductions from his paychecks, however confusing they may have seemed, remained the same until he was terminated by Garda in June of 2016. Additionally, there is nothing in the evidence before me that demonstrates that Mr. Ortiz’s conduct could militate against a retroactive reward. While he may have paid for one or two activities of the children (he recalls giving Ms. Sarmiento $300.00 in cash for Justin’s soccer in 2015), or given them $50.00 from time to time (both of which are disputed by Ms. Sarmiento), neither behaviour is sufficient to demonstrate that Mr. Ortiz has contributed to his sons’ support in such a way as to negate a retroactive reward.

The Children’s Circumstances

[35] Ms. Sarmiento has stated in her affidavit sworn August 10, 2017, that she has had to raise the children on solely her income, which has been roughly the equivalent of Mr. Ortiz’s, but for his contribution of $322.00 per month in support payments. She states that she and the children have struggled together and continue to struggle.

[36] Ms. Sarmiento states that, although asked, Mr. Ortiz did not contribute to a graduation present for Carl, did not help with any of Carl’s prom expenses, driving lessons or college expenses. Nor has he paid for Justin’s driving lessons or many years of soccer registration. She notes additionally, that Mr. Ortiz has never bought gifts for Justin’s birthdays or for Christmas.

[37] Ms. Sarmiento also states that although Carl in now an adult, she continues to provide for him financially as he has only been able to obtain part-time work as a trainer/motivator.

[38] Carl is now 27 years old and, in fact, has himself had a baby this past year. Mr. Ortiz disputes that any retroactive award should be made for support of Carl, given his current circumstances.

[39] In paragraph 113 of D.B.S., the court stated: “Because the awards contemplated are retroactive, it is also worth considering the child’s needs at the time the support should have been paid. A child who underwent hardship in the past may be compensated for this unfortunate circumstance through a retroactive award.”

[40] Clearly, Carl underwent some hardship prior to September of 2011, and I can see no reason why he should not be compensated with support that would have been payable between January of 2009 and August of 2011. Of course, Mr. Ortiz overpaid support for Carl from September of 2011 and June of 2016, and his overpayments will have to be taken into account in making the appropriate adjustments.

Hardship

[41] Mr. Ortiz claims that any retroactive payment beyond three years from June of 2016 will cause him hardship. But for his trips to the Philippines, Mr. Ortiz appears to live frugally, renting a room in shared housing. He claims to owe the Government of Canada a debt relating to the sponsorship of his second wife from the Philippines, Ma Christina Ortiz, which as of November 3, 2015 was $1,300.00. Mr. Ortiz also states that he has given money to his mother for living expenses in the Philippines and that he pays for medication that she requires at about $50.00 per month.

[42] Ms. Sarmiento states that although Mr. Ortiz may have a debt relating to Ma Christina Ortiz, he benefitted from two people sharing the expenses of living for many years while she struggled on her own salary with two children, one with significant special needs. In fact, during Mr. Ortiz’s marriage to Ma Christina Ortiz, he removed Carl and Justin as dependents from his extended benefits plan with his employer, and replaced them with Ms. Ortiz. Only in October of 2015 did Mr. Ortiz place Justin back onto the plan as his dependent.

[43] Additionally, Ms. Sarmiento states that Mr. Ortiz travels to the Philippines annually. Certainly, Mr. Ortiz took extended trips to the Philippines in both 2016 and 2017, one of which caused him to lose his job. Mr. Ortiz states that the reason for his trips is to support his ailing mother, and that he borrows against a line of credit or additionally uses his credit cards to do it, both of which he pays down later. Regardless of the reason, Mr. Ortiz has put his own interests ahead of those of his children in so doing.

[44] Blameworthy conduct of a payor is explained in paragraph 106 of D.B.S. to mean: “anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support”. In paragraph 166, while examining hardship, the court held: “While hardship for the payor parent is much less of a concern where it is the product of his/her own blameworthy conduct, it remains a strong one where this is not the case.” Mr. Ortiz’s loss of income in 2016 was a result of his own blameworthy conduct, and his debt resulting from the trips he has taken to the Philippines is also the result of his own blameworthy conduct.

[45] Based on all of the above, I find that Mr. Ortiz is required to pay retroactive support and his proportionate share of retroactive section 7 expenses from January 1, 2009 to December 31, 2016.

Issue #2 – Should Income be imputed to Mr. Ortiz for 2016?

[46] Mr. Ortiz’s income for 2015 was $50,827.00. However, it was reduced in 2016 to $32,158.00 due to Mr. Ortiz’s dismissal from his job with Garda in June of 2016. As I have already indicated above, Mr. Ortiz was reinstated with Garda in October of 2016 after his union grieved his termination, and recommenced working in December of 2016.

[47] Ms. Sarmiento argues that Mr. Ortiz’s income for 2016 should be imputed to $50,000.00, based on his termination having been “voluntary”, resulting in him, therefore, being unemployed from June to November of 2016. Mr. Ortiz’s position is that income should not be imputed to him for 2016 because his termination was involuntary, and he was not, therefore, purposefully unemployed for those seven months of 2016.

[48] It is clear, as I have mentioned above, that Mr. Ortiz was entitled to three weeks of annual vacation, and that he did not have management approval to take the fourth week of May 31 to June 5 of 2016. It is equally clear from Mr. Ortiz’s own material that he was terminated by Garda for cause, that being absenteeism. Mr. Ortiz attached a copy of his “Last Chance Agreement” with Garda dated October 17, 2016 as an Exhibit to his affidavit sworn on October 22, 2017. In it, there are several perambulatory clauses, two of which provide:

WHEREAS The Employee has a serious problem of absenteeism at work such as absences without permission being granted (individual “Employee’s Action” and collectively “Employee’s Actions”);

WHEREAS The Employee’s Actions are incompatible with the maintenance of his employment relationship with the Employer and constitute a serious breach of the collective agreement and rules and procedures of the Employer:

[49] Based on this agreement that Mr. Ortiz signed with his employer, there can be no doubt that his termination was as a result of his own actions. Simply put, had Mr. Ortiz complied with his collective agreement, he would not have been terminated. His decisions to 1) book an extra week vacation without approval, and 2) go on it without approval were, in that sense, entirely voluntary. Mr. Ortiz knew or ought to have known the potential consequences of doing so, however unreasonable he may have felt his employer to be.

Analysis

[50] The onus is on Ms. Sarmiento, as the person seeking to have income imputed, to establish an evidentiary basis that Mr. Ortiz was intentionally under-employed or unemployed. (Homsi v. Zaya, 2009 ONCA 322, 65 R.F.L. (6th) 17, at para. 28).

[51] A spouse is intentionally underemployed if he or she chooses to earn less than he or she is capable of earning having regard to all of the circumstances (Drygala v. Pauli (2002), 61 O.R. (3d) 771 (C.A.), at para. 28). A spouse’s capacity to earn income can be influenced by his or her age, education, health, work history, and the availability of work that is within the scope of his or her capabilities (Marquez v. Zaipola, 2013 BCCA 4333, 344 B.C.A.C. 133, at para. 37);

[52] A spouse can be found intentionally under-employed or unemployed if he or she quits employment for selfish or bad faith reasons, or engages in reckless behaviour that results in a reduction of his or her income earning capacity (Scott v. Chenier, 2015 ONSC 7866, at para. 48).

[53] A factor to take into consideration in arriving at an amount of income to be imputed is evidence of a spouse’s previous income as was done by the Court of Appeal decision of Lawson v. Lawson (2006), 2006 CanLII 26573 (ON CA), 81 O.R. (3d) 321, at para. 38.

[54] I find based on the facts outlined above, that Mr. Ortiz engaged in reckless behaviour that resulted in a reduction of income earning capacity in June of 2016, and that an income of $48,976.00 should be imputed to him for 2016. This sum is the average of Mr. Ortiz’s incomes for the previous three years of 2013, 2014 and 2015.

Issue #3 - What is the quantum of retroactive child support and section 7 contributions payable?

[55] Given my above finding that Mr. Ortiz should pay retroactive child support for both Carl and Justin from January 1, 2009 to August 31, 2011, and for Justin from September 1, 2011 to December 31, 2016, the quantum of support owing for these periods are as follows:

(a) From January 1 to December 31, 2009, Mr. Ortiz shall pay $639.00 per month based on his 2009 income of $42,238.00;

(b) From January to December of 2010, Mr. Ortiz shall pay $685.00 per month based on his 2010 income of $45,295.00;

(c) From January 1, 2011 to August 31, 2011, Mr. Ortiz shall pay $716.00 per month on his 2011 income of $47,287.00;

(d) From September 1 to December 31, 2011, Mr. Ortiz shall pay $437.00 per month on his 2011 income of $47,287.00;

(e) From January 1 to December 31, 2012, Mr. Ortiz shall pay $400.00 per month on his 2012 income of $44,367.00;

(f) From January 1 to December 31, 2013, Mr. Ortiz shall pay $452.00 per month on his 2013 income of $50,154.00;

(g) From January 1 to December 31, 2014, Mr. Ortiz shall pay $415.00 per month on his 2014 income of $46,401.00;

(h) From January 1 of December 31, 2015, Mr. Ortiz shall pay $458.00 per month on his 2015 income of $50,827.00; and,

(i) From January 1, to December 31, 2016, Mr. Ortiz shall pay $441.00 per month on his 2016 imputed income of $48,976.00.

[56] Mr. Ortiz shall also pay his proportionate share of section 7 expenses for the period of January 1, 2009 to December 31, 2016.

Issue #4 - What is the quantum of on-going child support and section 7 contributions for Justin?

[57] Mr. Ortiz acknowledges that he is required to pay child support and contribute to section 7 expenses for Justin in accordance with his current income for 2017 and on a go-forward basis. Mr. Ortiz acknowledges that his income to November 1 of 2017 was $46,634.00. Ms. Sarmiento submits that his gross income for all of 2017 will be approximately $52,000.00. She basis this on his year to date income of $37,825.36 as of his September 16, 2017 paystub and 7.5 more pay periods at $1,991.46 to the end of the year. He will therefore be required to pay $469 per month on his estimated income of $52,000 per year from January to November of 2017, and $479.00 per month as of December 1, 2017 in accordance with the increase in the 2017 Federal Child Support Guidelines.

[58] The parties will be required to share section 7 expenses proportional to their incomes for 2017, and on a go-forward basis.

Order

[59] My order shall be as follows:

Child Support

1. The Respondent shall pay to the Applicant Table Guideline support for the children, Carl Ortiz, born August 20, 1990, and Jerico Justin Ortiz, born June 23, 1999 as follows:

a) For the period of January 1, 2009 to December 31, 2009, the amount of $639.00 per month based on the Respondent’s 2009 income of $42,238.00;

b) For the period of January 1, 2010 to December 31, 2010, the amount of $685.00 per month based on the Respondent’s 2010 income of $45,295.00; and

c) For the period of January 1, 2011 to August 31, 2011, the amount of $716.00 per month based on the Respondent’s 2011 income of $47,287.00;

2. On September 1, 2011, the child support for Carl Gerald Ortiz shall be terminated.

3. The Respondent shall pay to the Applicant Table Guideline child support for Jerico Justin Ortiz, born June 23, 1999 as follows:

a) For the period September 1, 2011 to December 31, 2011, the amount of $437.00 per month based on the Respondent’s 2011 income of $47,287.00;

b) For the period January 1, 2012 to December 31, 2012, the amount of $400.00 per month based on the Respondent’s 2012 income of $44,367.00;

c) For the period January 1, 2013 to December 31, 2013, the amount of $452.00 per month based on the Respondent’s 2013 income of $50,154.00;

d) For the period January 1, 2014 to December 31, 2014, the amount of $415.00 per month based on the Respondent’s 2014 Line 150 income of $46,401.00;

e) For the period January 1, 2015 to December 31, 2015, the amount of $458.00 per month based on the Respondent’s 2015 Line 150 income of $50,827.00;

f) For the period January 1, 2016 to December 31, 2016, the amount of $441.00 per month based on the Respondent’s 2016 imputed income of $48,976.00;

4. The Respondent shall pay to the Applicant his proportionate share of the section 7 expenses in the amount of $1,338.59 from January 1, 2009 to December 31, 2016.

5. The Respondent shall be given credit for child support payments from January 1, 2006 to date. The Family Responsibility Office shall adjust their records accordingly.

6. Commencing on January 1, 2017, and on the first day of each month thereafter, the Respondent shall pay to the Applicant child support for Jerico Justin Ortiz, born June 23, 1999, in the amount of $469.00 per month based on an estimated 2017 income of $52,000.00 in accordance with the 2011 Federal Child Support Guidelines.

7. Commencing December 1, 2017, and on the first day of each month thereafter, the Respondent shall pay to the Applicant child support for Jerico Justin Ortiz, born June 23, 1999, in the amount of $479 per month on an estimated 2017 income of $52,000.00 in accordance with the 2017 Federal Child Support Guidelines.

8. Commencing on January 1, 2017, the parties shall proportionately pay Justin’s section 7 expenses.

9. Pursuant to section 7(1) of the Guidelines, section 7 expenses shall include:

a) portion of the medical and dental insurance premiums attributed to Justin;

b) health-related expenses that exceed insurance reimbursement by at least $100.00 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;

c) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

d) expenses for post-secondary education; and

e) extraordinary expenses for extracurricular activities.

10. If there is a material change to the Respondent’s income, the Respondent shall inform the Applicant in writing with disclosure. The parties shall agree on a change to the child support amount to prevent any significant overpayment or underpayment.

11. Commencing on June 1, 2018 and by June 1st of every year thereafter, the parties shall abide by the provisions of section 25 of the Federal Child Support Guidelines which imposes a continuing obligation to provide income information in order to review the child support arrangements and contributions towards Justin’s special expenses. The parties shall provide the following documentation to the other including:

a) any document required pursuant to section 21(1) of the Federal Child Support Guidelines, than have not already been provided;

b) current expense information with respect to any special or extraordinary expenses a party alleges is a special or extraordinary expense;

c) copy of a party’s complete Income Tax Return and Notice of Assessment (or Re-Assessment) including copies of all attachments;

d) all income statements (i.e. T4, T5, etc.);

e) last paystub(s) from all employers the previous year; and

f) complete details of all business activities in which a party is involved including, but not limited to, copies of the financial statements of those business and tax returns.

12. The parties shall vary the Respondent’s Table Guideline amount each year on or before July 1st of each year/ The first variation shall take place on July 1, 2018. Commencing on June 1st of each year, the Respondent shall pay the Table Guideline amount based on his prior calendar year’s income.

13. Up to December 31, 2016, there shall be no child support arrears or section 7 expenses other than what is specified above.

Benefits and Security

14. The Parties shall each maintain or obtain any medical and dental coverage for Justin available through his/her employment as long as Justin qualifies for such coverage.

15. The Respondent shall seek reimbursement from his insurer within fourteen (14) days of receiving a receipt for Justin’s medical or dental expense. Within seven (7) days of receiving a reimbursement, the Respondent shall provide/transfer the reimbursement to the Applicant.

16. The Respondent shall obtain and maintain a life insurance policy with a face amount of not less than $25,000.00 and designate the Applicant as the sole irrevocable beneficiary for child support payable.

17. Within 30 days, the Respondent shall provide proof of such life insurance coverage and designation.

18. If the Respondent dies without this insurance in effect, the Respondent’s obligation to pay support shall survive his death and shall be a first6 charge on the Respondent’s estate.

Miscellaneous

19. Unless the support order is withdrawn from the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall direct them to the person to whom they are owed. A support deduction order will be issued.

20. The Respondent shall provide to the other party and the Director of the Family Responsibility Office notification of any change in address or employment including full particulars about the change within ten (10) days of the change taking place.

21. This order bears interest at the post-judgment interest rate set out in the Courts of Justice Act of _____% per year effective from the date of this Order. A payment in defaults bears interest only from the date of default.

[60] Failing agreement by counsel by January 15, 2018 as to the liability for costs of this Motion to Change, counsel will make written submissions to me at intervals of 10 days and I will make an order.

Madam Justice Tracy Engelking

Released: December 20, 2017

CITATION: Sarmiento v. Ortiz, 2017 ONSC 7570

OTTAWA COURT FILE NO.: FC-03-1229-4

DATE: 2017/12/20

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Carmenciata Sarmiento

Applicant

– and –

Gerardo Ortiz

Respondent

REASONS FOR JUDGMENT

ENGELKING J.

Released: December 20, 2017