Court File and Parties
COURT FILE NO.: 19-124
DATE: 2020-11-05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jeanine Mary Silva
Applicant
-and-
Brian Silva
Respondent
Counsel:
Ben Fortino, for the Applicant
Carmelo Runco, for the Respondent
HEARD: November 3, 2020 at Cayuga
ENDORSEMENT ON MOTION
THE HONOURABLE JUSTICE J. R. HENDERSON
[1] Both the applicant and the respondent have delivered “short” motions that are returnable today. However, these two motions will require approximately one-half day of court time for submissions. Further, there are some outstanding productions that are required for use on these motions; specifically, the respondent has not yet produced his complete financial records or the clinical notes and records of his doctor.
[2] For these reasons, I decided that I would only hear submissions today with respect to the issue of temporary without prejudice child support, and that all other requests would be adjourned to a long motions date.
[3] Regarding child support, the two children, Ava Silva born May 23, 2010 and Ella Silva born September 6, 2013, have been in the applicant’s custody since the separation in 2019. The respondent has not been paying any child support.
[4] There are some difficulties in calculating the respondent’s income for child support purposes because the respondent is a self-employed contractor, the respondent has not delivered an updated financial statement, the respondent’s ability to earn income has been affected by Covid-19, and the respondent suffers from mental health issues that caused him to be hospitalized for a period of time in 2019.
[5] For the purpose of today’s decision, I will estimate the respondent’s income for child support purposes based upon the limited financial documentation that is available. Therefore, the child support order that I make today will be a temporary order without prejudice as to quantum or retroactivity. This temporary order may be reviewed by the motions judge who hears the long motion as it is expected that the motions judge will have the benefit of more fulsome productions.
[6] The respondent’s 2019 income tax return includes an income and expense statement that shows the respondent’s gross business income for 2019 to be $36,364, with net income of $4,256.
[7] I accept that several business expenses that were deducted for tax purposes in 2019 should be added back to the respondent’s income in order to calculate his income for child support purposes. In particular, I will add back the motor vehicle expense of $5,927 and the meals and entertainment expense of $730. Also, there is a large capital cost allowance expense in the amount of $14,945. The subject of the capital cost allowance is unclear from the records, but I accept that the capital cost allowance is not an out-of-pocket expense to the respondent, and I will also add this amount back to the respondent’s income.
[8] When I add these three expenses to the respondent’s net income, I find that the respondent’s income for child support purposes in 2019 was $25,858. In rough terms, this means that in 2019 the respondent’s income for child support purposes was approximately 70 percent of the respondent’s gross business income.
[9] In order to calculate the respondent’s current income, I next reviewed some of the respondent’s business records for 2020. The only financial records available are invoices from the respondent’s business for the period from January 2020 to August 2020. During this period, the respondent sent out invoices that generated approximately $35,000 in gross income. If I prorate this amount for a full calendar year, I find that the respondent is currently earning an annualized gross income of $52,500. In my view, this figure makes sense when compared to the respondent’s 2019 gross income as the respondent did not work a full year in 2019 because of his health issues.
[10] Using the same analysis as set out above for 2019, I conclude that the respondent’s current income for child support purposes should be 70 percent of the respondent’s current annualized gross income. Therefore, I find that the respondent’s current income for child support purposes is $36,750 per year.
[11] For these reasons I make the following orders:
The respondent shall pay temporary child support on a without prejudice basis to the applicant for the two children, Ava and Ella, in the amount of $546 per month commencing November 1, 2020, based on the respondent’s current income of $36,750 per year.
All of the remaining matters with respect to both motions are adjourned to be heard as a long motion, for approximately one-half day, on February 8, 2021, at 2:00 p.m.
Each of the parties will deliver a factum at least 10 days prior to the date for the hearing of the long motion.
Costs of today’s motion are reserved to the judge who hears the long motion.
J. R. Henderson J.
Released: November 5, 2020
COURT FILE NO.: 19-124
DATE: 2020-11-05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jeanine Mary Silva
Applicant
-and-
Brian Silva
Respondent
REASONS FOR JUDGMENT
J. R. Henderson J.
Released: November 5, 2020