Superior Court of Justice - Ontario
COURT FILE NO.: FC-15-1680-1 DATE: 2024/02/22
RE: Cesar Quinteros, Applicant AND: Sandra Lorena Paez Diaz, Respondent
BEFORE: Somji J.
COUNSEL: Julie Gravelle, for the Applicant Respondent, Self-Represented
HEARD: February 16, 2024
ENDORSEMENT
[1] This endorsement constitutes my findings on retroactive child support for the years 2018 to present and on-going child support following an uncontested trial decision I rendered on this matter on February 22, 2023: 2023 ONSC 1277.
[2] Following the uncontested trial, I made a Temporary Order on retroactive child support adjustments for 2018, 2019, and 2020 based on the Respondent mother’s income tax filings that had not previously been disclosed. Those retroactive adjustments indicated that the father had overpaid child support. For the years 2021 to present, I made an order for child support based on the mother’s 2020 income given she did not attend trial or disclose to the Applicant father her income tax returns for 2021 to present. I adjourned the matter for continuation and ordered the mother to provide financial disclosure.
[3] The facts relating to this matter are set out in my February 2023 decision, and I will not repeat them here. The parties have a 50/50 parenting arrangement for two children ages 12 and 13 and agree that retroactive and on-going child support should be calculated on a set-off basis.
[4] On February 9, 2024, the matter returned before me. The mother had still not provided the disclosure ordered. She explained that counsel’s emails and any court correspondence went to her junk mail and consequently, she was not aware of my decision. I would note, however, that the mother was aware that court proceedings were underway and, in fact, had attended court on August 26, 2022, where she was granted an adjournment to October 2022 to file her response.
[5] The mother confirmed on February 9, 2024, that she had filed her 2020 and 2021 tax returns. She reported figures based on what she could locate on her phone. Duty Counsel was requested to attend to assist the mother. The mother was directed to provide an affidavit, financial statement, and her income tax returns to the father’s counsel and return before me the following week on February 16, 2024, to finalize this matter.
[6] The mother did provide the requested materials, albeit not in their entirety. The mother reported in her affidavit dated February 14, 2024, that she had been untruthful about her employment. She no longer works at a doctor’s office, and is an on-call massage therapist. She explained that she panicked in court, and upon speaking to duty counsel, issued a correction in her affidavit. The mother did not provide her statement of business activity accompanying her income tax filings or any other evidence confirming her present employment or earnings.
[7] The mother’s income tax return for 2021 indicates an income of $35,456. Based on that income and the father’s income of $29,845, the mother does not dispute that she is responsible for paying the father $81/month for the two children.
[8] The mother indicates that her income has since decreased, and for 2022, her income was $19,994. The mother reported that her household expenses are largely covered by her foster mother with whom she presently resides. The mother did not provide any clear explanation for the decrease in her income. She also does not dispute that she has the ability to work full-time.
[9] The father requests that the mother’s income be imputed at $35,000 for 2022 onward, which is equivalent to full-time employment at minimum wage. The mother does not oppose this request. Based on the evidence presented and the submissions of counsel and the mother, I find it is fair and reasonable that commencing January 1, 2022, and on-going, the mother’s income is imputed at $35,000 per year. I find there is sufficient evidence to impute this income to the mother based on full-time work at minimum wage in Ontario.
[10] The father’s income for 2022 is $35,456 and is expected to be largely the same for 2023 and going forward. Given the comparable incomes of the parties and the negligible set-off that would be payable, I find that no support is owed by either party for 2022 and 2023.
[11] There will be a Final Order that:
Paragraph 13 of the Final Order of Justice Beaudoin, dated September 6th, 2017 is hereby struck.
The father’s child support payable for 2018 is retroactively adjusted to $209/month based on the father’s income of $27,945 and the mother’s income of $16,516.
The father’s child support payable for 2019 is retroactively adjusted to $298/month based on the father’s income of $26,900 and the mother’s income of $13,395.
The father’s child support payable for 2020 is retroactively adjusted to $0/month.
The mother shall pay the father child support for 2020 in the amount of $39/month based on the father’s income of $27,345 and the mother’s income of $29,714.
The father’s child support payable for 2021 is retroactively adjusted to $0/month.
The mother shall pay the father child support for 2021 in the amount of $81/month based on the father’s income of $29,845 and the mother’s income of $35,456.
The father’s child support payable for 2022 and 2023 is retroactively adjusted to $0/month.
Commencing January 1, 2022, and on-going, the mother’s income is imputed to $35,000. The court finds there is sufficient evidence to impute this income to the mother based on full-time work at minimum wage. The resulting set-off is that no support is owed by either party as a result of the father’s 2022 income of $35,456.
Neither party shall pay the other child support for 2022 and 2023 given their comparable incomes for each of these years resulting in a negligible amount of set-off child support.
The Family Responsibility Office will credit the father for any overpayment of child support for the years 2018 to end of 2021.
For the purposes of on-going child support effective January 1, 2024, the mother’s income is imputed at $35,000.
The parties shall exchange their Income Tax Returns and Notices of Assessment annually by July 1st every year including, where applicable, their statements of professional activities.
Unless the support order is withdrawn from the Office of the Director of the Family Responsibility Office, it shall be enforced by the Director and any amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.
Costs of the February 22, 2023, proceedings were fixed in the amount of $1000 payable by the mother to the father.
Costs of the February 9 and 16, 2024, proceedings are hereby fixed in the amount of $1000 payable by the mother to the father.
The costs award relates to support within the meaning of section 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 and a such, is enforceable by FRO.
[12] Given the adjustments to retroactive child support, the parties will contact Trial Coordination to for an appearance in FRO court within the next six months so that the parties and the court can review the statement of adjustment/arrears updated by FRO and determine any outstanding issues related to the calculation and enforcement of child support arrears. The parties shall provide a confirmation form three days before the FRO hearing to update the presiding judge on the matter.
Somji J.
Date: February 22, 2024
COURT FILE NO.: FC-15-1680-1 DATE: 2024/02/22
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Cesar Quinteros, Applicant AND: Sandra Lorena Paez Diaz, Respondent
BEFORE: Somji J.
COUNSEL: Julie Gravelle, for the Applicant Respondent, Self-Represented
HEARD: February 16, 2024
ENDORSEMENT
Somji J.
Released: February 22, 2024