Miolla v. Miolla, 2019 ONSC 161

NEWMARKET COURT FILE NO.: FC-12-42081-00 DATE: 20190108 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Regina Miolla, Applicant – and – Frank Miolla, Respondent

Counsel: Self-represented (for Applicant) Self-represented (for Respondent)

HEARD: November 27, 29 and 30, 2018

JUDGMENT

F. GRAHAM J.

Background and Issues

1The parties married on May 11, 2002. They separated on August 31, 2012. Their three children are currently ages 14, 11, and 9. The children live primarily with their mother.

2The issues at trial were regular child support and special and extraordinary child expenses.

Mr. Miolla’s Income

2012 to 2016

3Mr. Miolla was working as a bus driver for GO Transit when the parties separated.

4According to his Notices of Assessment, his post-separation annual incomes with GO were $75,059 (2012), $73,180 (2013), $68,007 (2014), $65,453 (2015), and $68,342 (2016).

2017

5Mr. Miolla was terminated from GO in May 2017. He testified that he started working as a self-employed non-union drywall taper in June 2017. He testified that he earned $20 per hour taping. He also received employment insurance (EI) payments in 2017.

6Mr. Miolla’s 2017 Notice of Assessment states that his line 150 income was $54,588. That amount includes $34,528 in employment income from GO, $1,200 in ‘other income’, $13,103 in EI payments, and $5,681 net business income.

7His 2017 return claims net business income of $5,681 based on gross business income of $21,483. Mr. Miolla testified, however, that the gross amount was not necessarily accurate. He also testified that he deducted from his gross income $1,372 for some printer ink and binders and an additional $3,300 for a computer and a printer which cost about $1,000.

8Ms. Miolla submitted that Mr. Miolla grossed $28,500 in business income in 2017. She calculated, based on the evidence, that he grossed $13,800 from June to October, $5,500 from October to December, and $9,200 from two side jobs, for a total of $28,500. She suggested deducting $10,000 for expenses would be reasonable. As a result, she submitted, his net business income was actually $18,500. When added to his reported $34,528 for employment income, $1,200 for other income, and $13,103 for EI the total is about $67,300.

9Mr. Miolla submitted that his 2017 income was $41,486 as reported in his income tax return.

10The court finds that Mr. Miolla’s income was at least $54,588 as stated in his Notice of Assessment. The court is also satisfied on a balance of probabilities that his gross business income was understated and his business expenses were inflated in his income tax return. The court accepts Ms. Miolla’s analysis but finds that a deduction of $11,500 for business expenses is more appropriate.

11As a result, the court finds that Mr. Miolla’s income for support purposes in 2017 was $65,800.

2018

12Mr. Miolla testified that he continued to work as a self-employed non-union drywall taper at a gross income of $20 per hour and continued to collect EI until the end of March 2018. He did not provide the total amount of his earnings or EI payments.

13He testified that in April 2018 he joined the International Union of Painters and Allied Trades (IUPAT) which has its head office at 132 Toro Road, Toronto, Ontario, M3J 2A9.

14He testified that since that time he has been working as a self-employed union subcontractor for, and is paid by, New Generation Group, 106 Corstate Avenue, Concord, Ontario, L4K 4X2.

15He stated that his gross pay when he started was half of a union journeyman drywall taper’s hourly wage of $44 per hour. He testified that his union pay rate increases every three months by between 5 to 15 percent until he earns the full union journeyman rate. He estimated that he will reach that point in about October 2020. He testified that his next pay increase was due on December 1, 2018, at which point he would be earning 65 percent of the $44 per hour earned by a union journeyman taper. He also testified that he chooses to do piece work, instead of being paid the hourly rate, and, as a result, he earns more than the hourly rate.

16Ms. Miolla submitted that the court should find that Mr. Miolla’s income for 2018 would be the same as 2017 – i.e. $67,300.

17Mr. Miolla submitted that his 2018 income would be about $50,000.

18The court finds that it is unlikely that Mr. Miolla will match his 2017 income because he earned a significant amount of income from GO in 2017. Considering: the net amount, as found by the court, that he earned as a non-union taper and the amount of EI he received during seven months in 2017; his continued non-union self-employment as a taper and receipt of EI during the first three months of 2018; and his union self-employment as a piece work taper during the balance of 2018; the court finds on a balance of probabilities that $55,000 is his income for support purposes in 2018.

2019 and Beyond

19Mr. Miolla estimated that his 2019 income will be about $60,000 to $65,000. Considering his evidence about his expected income increases, the court finds on a balance of probabilities that $65,000 will be his income for support purposes in 2019. Based on the same evidence, on a balance of probabilities, the court finds that $75,000 will be his income for support purposes for 2020 and $87,000 will be his income for support purposes for 2021 and thereafter.

Section 3 – Child Support Guidelines (CSG)

20Based on his income of $75,059 in 2012, Mr. Miolla shall pay Ms. Miolla $1,445 per month for table child support commencing September 1, 2012.

21Based on his income of $73,180 in 2013, Mr. Miolla shall pay Ms. Miolla $1,409 per month for table child support commencing January 1, 2013.

22Based on his income of $68,007 in 2014, Mr. Miolla shall pay Ms. Miolla $1,320 per month for table child support commencing January 1, 2014.

23Based on his income of $65,453 in 2015, Mr. Miolla shall pay Ms. Miolla $1,272 per month for table child support commencing January 1, 2015.

24Based on his income of $68,342 in 2016, Mr. Miolla shall pay Ms. Miolla $1,325 per month for table child support commencing January 1, 2016.

25Based on his income of $65,800 in 2017, Mr. Miolla shall pay Ms. Miolla $1,279 per month for table child support commencing January 1, 2017.

26Based on his likely income of $55,000 in 2018, Mr. Miolla shall pay Ms. Miolla $1,068 per month for table child support commencing January 1, 2018.

27Based on his likely income of $65,000 in 2019, Mr. Miolla shall pay Ms. Miolla $1,264 per month for table child support commencing January 1, 2019.

28Based on his likely income of $75,000 in 2020, Mr. Miolla shall pay Ms. Miolla $1,444 per month for table child support commencing January 1, 2020.

29Based on his likely income of $87,000 in 2021, Mr. Miolla shall pay Ms. Miolla $1,640 per month for table child support commencing January 1, 2021.

Ms. Miolla’s Income

30Ms. Miolla’s line 150 income in 2017 was $29,974 according to her Notice of Assessment.

31Based on her evidence, the court finds that her income in 2018 will likely be about $28,000.

32Based on her evidence, the court finds that her income in 2019 and thereafter will likely be about $30,000.

33In an effort to provide some guidance to the parties, the court is of the view that a reported line 150 income of between $28,000 and $33,000 on line 150 of Ms. Miolla’s tax return for 2018 or beyond would not be a material change in circumstances. On the other hand, a reported line 150 income of less than $28,000 may be a material change depending on the amount of the difference.

Section 7 Expenses – CSG

34Ms. Miolla does not seek an order for Mr. Miolla to contribute to special and extraordinary child expenses prior to 2017 beyond the amount he has already contributed voluntarily.

35Based on Mr. Miolla’s income of $65,800 and Ms. Miolla’s income of $29,974 for 2017, Mr. Miolla is responsible for 69 percent of special and extraordinary child expenses incurred during 2017.

36Based on Mr. Miolla’s likely income of $55,000 and Ms. Miolla’s likely income of $28,000 for 2018, Mr. Miolla is responsible for 66 percent of special and extraordinary child expenses incurred during 2018.

37Based on Mr. Miolla’s likely income of $65,000 and Ms. Miolla’s likely income of $30,000 for 2019, Mr. Miolla is responsible for 68 percent of special and extraordinary child expenses incurred during 2019.

38Based on Mr. Miolla’s likely income of $75,000 and Ms. Miolla’s likely income of $30,000 for 2020, Mr. Miolla is responsible for 71 percent of special and extraordinary child expenses incurred during 2020.

39Based on Mr. Miolla’s likely income of $87,000 and Ms. Miolla’s likely income of $30,000 for 2021, Mr. Miolla is responsible for 74 percent of special and extraordinary child expenses incurred during 2021 and beyond.

2017

40Ms. Miolla seeks a sharing of Dante’s hockey pre-registration fee of $485 in 2017. Mr. Miolla told the court that he would pay his share. His proportionate share is 69 percent or $334.65. He shall pay Ms. Miolla this amount within 30 days.

2018

41Ms. Miolla seeks a sharing of a number of 2018 section 7 expenses. Mr. Miolla told the court that he would pay his share of the following: $49.92 for neck guards for Dante and Anthony, $454.24 for sports equipment for Dante and Anthony, $925 for hockey registration for Dante, $1,005 for hockey registration for Anthony, $500 for Victoria’s theatre programme.

42These expenses total $2,934.16. Mr. Miolla’s proportionate share is 66 percent or $1,936.55. He shall pay Ms. Miolla this amount within 30 days.

43Ms. Miolla proved that she paid for the following additional section 7 school expenses in 2018: $75 school fee for Anthony, $345.78 for Anthony’s school uniform, $12 school fees for Victoria and Dante, $33 for gym clothes for Anthony, $20 for Grade 9 Fun Day for Anthony, $56 for Zoo Day for Victoria and Dante, $10 for fencing for Anthony, $40 Africa French Day for Anthony, $26 for CN Tower and Christmas Activity Fee, and $30 Ski Trip for Anthony.

44These expenses total $647.78. Mr. Miolla’s proportionate share is 66 percent or $427.53. He shall pay Ms. Miolla this amount within 30 days.

45Ms. Miolla did not realize that daycare was a section 7 expense until the autumn of 2018. She seeks re-imbursement for Mr. Miolla’s proportionate share of daycare expenses commencing September 1, 2018. She is entitled to this upon providing Mr. Miolla with copies of receipts as set out below.

2018 and Beyond

46On an on-going basis, Mr. Miolla shall pay Ms. Miolla his proportionate share of any special or extraordinary child expense, incurred in 2018 or later, within 30 days of being provided with a copy of the receipt. If Ms. Miolla sends a copy of a receipt by email, it will be deemed to be provided to Mr. Miolla on the date it is sent. If she provides a copy of a receipt by regular mail, it will be deemed to be provided to Mr. Miolla seven days after posting.

Health and Dental Benefits

47Mr. Miolla shall maintain each child of the marriage on his health and dental benefits and he shall provide written proof that such benefit coverage is maintained to Ms. Miolla on or before June 1 each calendar year, commencing in 2019.

Continuing Income Disclosure

48Each party shall provide the other party with a copy of their complete income tax return with all attachments on or before May 15 each year for the previous calendar year. This shall commence in 2019 with respect to 2018.

49Each party shall provide the other party with a copy of their Notice of Assessment and any Notices of Re-Assessment from the Canada Revenue Agency (CRA) year within 15 days of receipt from the CRA, commencing in 2019 with respect to 2018.

50Mr. Miolla shall provide his copies to Ms. Miolla by tracked registered mail or tracked courier, requiring a signature upon delivery. He shall obtain and keep proof of each delivery in case proof of delivery is later required by the court.

Orders

51Final order to go as follows:

1. Mr. Miolla shall pay Ms. Miolla child support in the amount of $1,445 per month commencing September 1, 2012.
2. Mr. Miolla shall pay Ms. Miolla child support in the amount of $1,409 per month commencing January 1, 2013.
3. Mr. Miolla shall pay Ms. Miolla child support in the amount of $1,320 per month commencing January 1, 2014.
4. Mr. Miolla shall pay Ms. Miolla child support in the amount of $1,272 per month commencing January 1, 2015.
5. Mr. Miolla shall pay Ms. Miolla child support in the amount of $1,325 per month commencing January 1, 2016.
6. Mr. Miolla shall pay Ms. Miolla child support in the amount of $1,279 per month commencing January 1, 2017.
7. Mr. Miolla shall pay Ms. Miolla child support in the amount of $1,068 per month commencing January 1, 2018.
8. Mr. Miolla shall pay Ms. Miolla child support in the amount of $1,264 per month commencing January 1, 2019.
9. Mr. Miolla shall pay Ms. Miolla child support in the amount of $1,444 per month commencing January 1, 2020.
10. Mr. Miolla shall pay Ms. Miolla child support in the amount of $1,640 per month commencing January 1, 2021.
11. Mr. Miolla shall pay Ms. Miolla $2,698.73 for special and extraordinary child expenses within 30 days.
12. Mr. Miolla shall pay Ms. Miolla his proportionate share of any special or extraordinary expense for any child of the marriage within 30 days of being provided with a copy of the receipt. If Ms. Miolla sends a copy of a receipt by email, it will be deemed to be provided on the date it is sent. If Ms. Miolla provides a copy of a receipt by regular mail, it will deemed to be provided to Mr. Miolla seven days after posting.
13. Mr. Miolla shall maintain each child of the marriage on his health and dental benefits and he shall provide written proof that the benefit coverage is maintained to Ms. Miolla on or before June 1 each calendar year, commencing in 2019.
14. Each party shall provide the other party with a copy of their complete income tax return with all attachments on or before May 15 each year for the previous calendar year. This shall commence in 2019 with respect to 2018.
15. Each party shall provide the other party with a copy of their Notice of Assessment and any Notices of Re-assessment from the Canada Revenue Agency (CRA) within 15 days of receipt from the CRA, commencing in 2019 with respect to 2018.
16. Mr. Miolla shall provide the documents described in subparagraphs 14 and 15 (immediately above) to Ms. Miolla by tracked registered mail or tracked courier, requiring a signature upon delivery. He shall obtain and keep written proof of each delivery in case proof of delivery is later required by the court.
17. A support deduction order shall issue. The address information set out in paragraphs 13 and 14 (above) shall be included in the support deduction order.
18. This order shall be issued without approval as to form or content from Mr. Miolla.

Costs

52If the parties are not able to resolve the issue of costs, either party may serve and file brief written submissions as to costs within 30 days. The other party may serve and file a brief written response within 30 days of service of the original submission. The original party may serve and file a very brief written reply within 15 days of service of the response. The parties should include in their submissions copies of any written offers to settle and any legal bills received.