Court File and Parties

COURT FILE NO.: FS-18-001659 DATE: 20190215 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Tamara Martinez Vila Applicant – and – Jose Angel Hernandez Respondent

Counsel: Federico Hernandez Eric Buzzin, student at law, for the Applicant Self-represented, for the Respondent

HEARD: January 23 and 24, 2019

Nakonechny, e.l., j.

[1] The parties attended on a trial before me for a day and a half. Each party was assisted by a Spanish interpreter.

[2] The issues for the trial were:

1 – Equalization of net family property, and 2 – Child and spousal support, including the Applicant’s claim for support retroactive to the date of separation.

Background

[3] The parties met in Cuba at their workplace. They began cohabiting in 1992. They married on September 15, 2000. The parties separated on October 3, 2016. In April 2017, the parties physically separated when the Applicant moved out of their rental apartment.

[4] The parties have two children: L, born November 9, 1993, age 25, (“L”) and J, born December 6, 2001, age 17 (“J”). L now has a child, the parties’ granddaughter. L and her daughter reside with the Applicant. J also resides with the Applicant and attends high school full time.

[5] The Applicant states she was a full time homemaker and essentially the sole caregiver to the children for most of the marriage. The Respondent lived away from the family for extended periods of time to work: first in Spain as a civil engineer while the Applicant and the children remained in Cuba; then in Alberta in construction after the parties moved to reside in Canada. The Applicant and the children remained in Ontario when the Respondent worked in Alberta.

[6] The parties had a relationship of about 24 years. The Applicant was 45 years old and the Respondent was 54 years old at the date of separation.

[7] The Applicant acknowledges that when the Respondent worked away from the family he regularly sent money back to her in Cuba and then Ontario. There is a dispute as to the amounts he provided.

[8] The Respondent states that he sacrificed his time with his wife and children to provide a good life for his family. He says that they were his focus and he always worried about them when he was away.

[9] When L was of school age, the Applicant returned to work in various jobs, both full and part time to contribute to the support of the family. She worked until she was 7 months pregnant with J. He was born while the Respondent was working in Spain. She stopped working then to care for both children full time on her own. She did not return to work until after the parties moved to Canada.

[10] The Respondent came to reside in Canada in 2001. The Applicant and the children followed in March 2006.

[11] The Applicant states that when she came to Canada the parties’ relationship changed. She says the Respondent became difficult and their relationship was strained.

[12] The Respondent states that when the Applicant came to Canada he told her this was a good, safe country where the family could move forward and succeed. He says the Applicant did not agree and the marriage started to crumble. The Applicant began to disrespect and yell at him.

[13] In 2007 the Respondent was in a car accident. He suffered serious injuries and could not work. There was no detailed evidence presented but both parties agree that at that time the Applicant returned to work to help with the family expenses. The Respondent was recuperating at home and attending physiotherapy. He says he did household chores as he was able, took the children to and from school and drove the Applicant to and from work.

[14] The Applicant agrees in part but says that she still had to do all of the housework and cooking when she got home from work. She states that she had to leave her English classes at that time because she had to work and care for the Respondent, the children and the home.

[15] In 2013 the Respondent went to work in construction in Alberta. He was employed there for three years. The Applicant states that at that time she considered separation but was not brave enough to leave the Respondent despite the fact that she knew the children were being adversely affected by the problems in the marriage.

[16] The Respondent states that while he was in Alberta he deposited all of his earnings into the parties’ joint bank account in Ontario for the Applicant to use for her and the children’s expenses. All of his living expenses in Alberta were paid for by his employer.

[17] In 2014 the Respondent received an insurance payment for damages relating to his 2007 accident. I have no evidence as to the amount paid but both parties agree that the funds were used for the expenses of the family to travel to Cuba about three times, to pay credit card debt (although the amounts are disputed, and no documents are in evidence) and, in 2016, to purchase a car in Cuba to be used as a taxi business.

The Taxi Business in Cuba

[18] The Respondent states that the car had to be purchased in the name of a Cuban resident as non-residents cannot own property or hold bank accounts in that jurisdiction. The taxi business is both an income and a property issue in this trial.

[19] The Respondent states that the income earned from the business was about $2,200 per year. He says he had expenses for the repair and maintenance of the taxi, a 1951 Pontiac, which reduced the income. When the car was under repair it could not be driven and there was no income.

[20] The income from the taxi was given by the driver to the Respondent’s sister in law. The car was registered in her name. She held the money for use by the parties and the children when they came to visit Cuba. The Respondent believes that the driver kept some of the income for himself. No income from the business ever returned to Canada.

[21] The taxi was sold in March 2018. The sale price is $12,500 (CUC) (Cuban Convertible Peso) or about $16,600 Cnd. The sale price is being paid to the third-party owner in Cuba in installments of $800 CUC for 15 months and $500 CUC for the 16th month. The Respondent states the payments have not been consistent and only about $1,000 CUCs have been paid to date.

The Income of the Parties

[22] The Respondent works in the construction of high rise buildings and currently earns $37.32 per hour. He does not work when the weather is cold or inclement. There were periods in 2018 that he did not work due to weather. He estimates his 2018 employment income will be $48,000 to $50,000. He says he did not receive any Employment Insurance (EI) in 2018.

[23] The Respondent testified that he earned about $600 cash every two weeks for cleaning jobs during periods he was unemployed and receiving Employment Insurance. He testifies that the last time he received cash income was in 2017.

[24] The Respondent’s 2016 Notice of Assessment shows employment income of $50,619, other employment income of $285 (which may be the cash income) and EI benefits of $11,947 for a total Line 150 income of $62,851.

[25] The Respondent’s 2017 Income Tax Return shows employment income of $50,161, other employment income (which may be the cash income) of $1,027 and EI benefits of $5,973 for a total Line 150 income of $57,162.

[26] The Applicant’s Income Tax Returns show Line 150 income of $32,512 in 2014, $37,825 in 2015, $17,349 in 2016 and $17,172 in 2017. She states that her ability to earn income is hampered by her lack of English language skills. She is reluctant to take work in the evening because she is concerned about leaving J without supervision.

[27] The Applicant has recently obtained full time employment as a cleaner. She earns $15 per hour and works 44 hours per week. This translates to gross annual income of about $33,000.

Analysis

Equalization of Net Family Property

[28] The Applicant has filed a Net Family Property Statement. The Respondent has not. The Applicant’s Net Family Property Statement shows a net family property (“NFP”) of zero for the Applicant and $22,563 for the Respondent.

[29] There are two issues to be decided in determining whether equalization is owing between the parties.

[30] The first issue is whether the Respondent had retained earnings from his taxi business in Cuba at the date of separation. In the Respondent’s assets on the NFP Statement, the Applicant lists $35,606.91 as “Retained Earnings from business in Cuba”. The Applicant entered no evidence that the Respondent had retained earnings in this amount. The Respondent denied he had any retained earnings from the business. I do not accept that the Respondent had any retained earnings from the taxi business at the date of separation.

[31] The second issue is whether the taxi itself is excluded property under s. 4(2)(3) and (5) of the Family Law Act. The Applicant’s NFP Statement lists the value of the taxi as an asset on the Respondent’s side of the equation in the amount of $16,032 (about the sale price of the car in Canadian dollars). The parties both gave evidence that the taxi was purchased with proceeds paid to the Respondent for personal injury suffered by him in the car accident.

[32] Pursuant to s. 4(2)(3) and (5) of the Family Law Act, I find that the taxi is excluded property owned by the Respondent on the date of separation as it can be traced to a payment of damages received by the Respondent for personal injury. As such, the value of the asset, $16,032, must be excluded from the Respondent’s NFP.

[33] As I do not accept the Applicant’s claim that the Respondent had retained earnings of the taxi business at the date of separation, $35,606.91 must be deleted from the Respondent’s assets. Because I find that the taxi is excluded property under s. 4(2)(3) and (5) of the Family Law Act, $16,032 must be subtracted from the Respondent’s NFP for the excluded asset. This deletion and exclusion brings the Respondent’s NFP to zero.

[34] As I find that both parties have a net family property of zero, the equalization is zero and there is no equalization payment owing from one party to the other.

Retroactive Child Support

[35] Only J is a child of the marriage as defined in the Divorce Act. Only he is eligible to receive child support.

[36] Both parties agree that after physical separation the Respondent deposited $200 weekly into the joint account for the Applicant’s use. The Respondent asks to be credited for this payment against any retroactive support owing.

[37] Mesbur, J., made a final Order on consent on June 8, 2018, that the Applicant have sole custody of J and that the Respondent pay child support for J in the amount of $505 per month commencing June 1, 2018 (“the Mesbur, J., Order”). The support Order is not in arrears.

[38] The Applicant seeks retroactive child support for J for the period from October 3, 2016 to May 1, 2018. In calculating support the Applicant asks that I impute additional income to the Respondent in an amount equal to the annual minimum wage. This, she argues, is because the Respondent admits to earning undeclared cash income while he was receiving EI and to account for the income from the taxi business in Cuba.

[39] Section 15 of the Child Support Guidelines provides that a payor’s annual income is to be determined in accordance with sections 16 to 20. Section 16 provides that a payor’s annual income is their Line 150 income on their income tax return, subject to sections 17 to 20 and adjusted in accordance with Schedule III.

[40] The Applicant takes the position that I should disregard the Respondent’s Line 150 income and not rely on it to determine his income for support purposes. She asks me to impute additional income to the Respondent.

[41] Section 19 of the Child Support Guidelines permits me to impute an amount of income to the support payor if I consider it appropriate in the circumstances. I have reviewed the Respondent’s income tax returns filed. I do not accept that Respondent could have earned the equivalent of the annual minimum wage in addition to his Line 150 income as shown on his income tax returns based on his hourly rate, the nature of his employment and the evidence of the time he was employed in construction.

[42] The Respondent admits he earned cash income in 2016 and 2017 but not how much he received in either year. Based on his hourly rate and the employment income he earned in each of these years, I find he worked about 8 months in construction. I accept the Respondent’s evidence that he earned cash income of $600 every two weeks during the period he received EI. I consider it appropriate to impute additional cash income of $2,400 gross per year based on the Respondent earning $600 every two weeks for about two months in each of those years.

[43] The Respondent has reported “other income” of $285 on his Income Tax Return in 2016 and $1027 on his Income Tax Return in 2017. This other income could be part of the cash income he earned. I find it is appropriate to deduct the “other income” the Respondent declared on his income tax returns from the cash income of $2,400 gross per year I have imputed. Therefore I am adding $2,115 to his 2016 Line 150 income of $62,851 for a total income in that year of $64,966. I am adding $1,373 to his 2017 Line 150 income of $57,162 for a total income in that year of $ 58,534.

[44] I find that the income from the taxi business in Cuba stayed in Cuba and was used by the family when they went to visit Cuba. I do not find it appropriate to impute any of that income to the Respondent.

[45] For the months of October to December 2016, based on the total 2016 income I have calculated of $64,966, I find that the Respondent should have paid child support of $605 per month for three months, or $1,815. He made no child support payment in this period, so this amount is owing by the Respondent to the Applicant.

[46] For 2017, based on the total income I have calculated of $58,534, I find the Respondent should have paid child support of $541 per month for twelve months, or $6,492. It is agreed he paid $200 per week from April to December, or $7,200. There is an overpayment of $708 which I will take into consideration in my later analysis.

[47] Pursuant to the Mesbur, J., Order the Respondent paid child support of $505 per month commencing June 1, 2018 based on an income of $54,742. I find this income is appropriate to use to calculate the child support owing for the months of January to May 2018.

[48] On income of $54,742, I find the Respondent should have paid child support of $505 per month for five months from January to May, 2018, or $2,525. He did pay $200 per week for five months or $4,000. There is an overpayment of $1475 which I will take into consideration in my later analysis.

[49] The total amount of retroactive child support owing by the Respondent to the Applicant is $1,815.

Retroactive and Ongoing Spousal Support

[50] Goodman, J. made a temporary without prejudice Order dated August 9, 2018, that the Respondent pay the Applicant spousal support in the amount of $270 per month commencing August 1, 2018 (“the Goodman, J. Order”). This Order is without prejudice to either party to argue a different amount and/or commencement date at trial.

[51] The Respondent argues that the Applicant is not entitled to spousal support. He says she had the ability to work full time and did not make sufficient effort to do so. He also testified that the Applicant did not make best efforts to learn English and even if she hadn’t there were jobs available to her as a cleaner with a company owned by a person known to both parties.

[52] The Applicant states she is entitled to spousal support, both needs based and compensatory, based on her role as a caregiver and homemaker throughout their marriage and her support of the Respondent’s career which impeded her own ability to earn income. She seeks spousal support retroactive to the date of separation and ongoing.

[53] The objectives of a spousal support order under s 15.2(6) of the Divorce Act are as follows:

a) recognize any economic advantages and disadvantages to the spouses arising from the marriage or its breakdown; b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; c) relieve any economic hardships of the spouses arising from the breakdown of the marriage; and d) in so far as is practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[54] I find the Applicant is entitled to spousal support, both needs based and compensatory, to re-dress the economic disadvantages and the financial hardship she suffered arising from her time out of the workforce and the traditional caregiving and homemaking role played by her in the marriage. I make this finding for these reasons: the Applicant moved from Cuba, the parties’ country of origin, to Canada to support the Respondent’s wish to live and work here. She cared for the children while the Respondent furthered his employment experience and income earning ability away from the family. Her time spent caring for the home and family limited both her ability to work full time and her ability to learn English to better her employment prospects in Canada.

[55] The Applicant commenced this Application in April 2018. The Applicant may have been entitled to spousal support prior to the commencement of the Application but I find that claim is modest and is satisfied by the overpayments of child support made by the Respondent of $708 in 2016 and $1,475 in 2017 calculated above. I am not ordering spousal support to be paid prior to the issuing of the Application.

[56] A Divorcemate calculation using the Applicant’s 2017 Line 150 income of $17,172, the Respondent’s income of $54,742, and child support of $505 shows a Spousal Support Advisory Guideline range between $57 and $408.

[57] I find that the Respondent should have paid spousal support of $270 per month commencing May 1, 2018, the first day of the month following the commencement of this Application. He paid spousal support of $270 per month commencing August 1, 2018. Spousal support of $270 per month is owing for May, June and July 2018 in the amount of $810.

[58] The Applicant has just begun a new job earning income of about $33,000. Based on a Divorcemate calculation using the Applicant’s income of $33,000, the Respondent’s income of $54,742, and child support of $505 there is no spousal support owing under the SSAG range. However, I find that the Applicant continues to have entitlement to compensatory support based on my reasons above. On this basis I am making an order that departs from the SSAGs because I am not satisfied that the spousal support paid by the Respondent to date fully compensates the Applicant for her economic disadvantages arising from the marriage and its breakdown and the financial consequences to the Applicant arising from her primary care of the children.

[59] Commencing January 1, 2019, the Respondent shall pay spousal support to the Applicant in the amount of $200 per month based on his income of $54,742 and the Applicant’s income of $33,000. The support shall be payable for an indefinite duration subject to material change.

The Divorce

[60] The Applicant made a claim for a divorce but did not give evidence on the claim at trial. If the Applicant wishes to file a Motion for a Divorce Judgment, it may be sent to my attention.

Costs

[61] There has been divided success in the outcome of this trial. Neither party was entirely successful in their claims. This will have an impact on which party pays costs. I encourage the parties to negotiate a resolution on costs to avoid the need for further court proceedings. If the parties cannot reach an agreement on costs they may make submissions as set out below.

Order

[62] This Court Orders as follows:

There shall be no equalization payable by either party.
The Respondent shall pay retroactive child support for J in the amount of $605 per month for the months of October, November and December 2016, for a total of $1,815, based on the total 2016 income I have calculated for him of $64,966.
The final Order of Mesbur, J., made June 8, 2018, which provides that the Applicant have sole custody of J and that the Respondent pay child support for J in the amount of $505 per month commencing June 1, 2018 shall continue.
The Respondent shall pay spousal support to the Applicant in the amount of $270 per month for May, June and July 2018 for a total of $810 based on an income of $54,742.
Commencing January 1, 2019 and on the first day of each month thereafter, the Respondent shall pay spousal support to the Applicant in the amount of $200 per month based on the Respondent’s income of $54,742 and the Applicant’s income of $33,000. If the Respondent has overpaid spousal support in 2019 in the amount of $270 per month pursuant to the Goodman, J., Order dated August 9, 2018, he shall be credited for any overpayment against future spousal support payments.
An SDO shall issue.
If the parties are not able to resolve the issue of costs between them by March 8, each party may make written submissions of no more than three pages (not including supporting documents and costs outline) no later than March 22, 2019.
Counsel for the Applicant may take out this Order without approval by the Respondent.

E.L. Nakonechny, J.

Released: February 15, 2019