Abbas v. Albohamra, 2020 ONCA 740

Court of Appeal for Ontario

CITATION: Abbas v. Albohamra, 2020 ONCA 740 DATE: 20201123 DOCKET: C68083

Feldman, Simmons and Harvison Young JJ.A.

BETWEEN

Yahya Abbas Applicant (Appellant in Appeal)

and

Methaq Albohamra Respondent (Respondent in Appeal)

Counsel: Ronald B. Moldaver Q.C., for the appellant Elaheh Aiaseh, for the respondent

Heard: November 4, 2020 by videoconference

On appeal from the order of Justice McSweeney of the Superior Court of Justice, dated January 28, 2020.

REASONS FOR DECISION

1This is the second level of appeal of an order for child support made by the trial judge by imputing income to the payor father based on inferences drawn from his lifestyle, which indicated that he must have had sources of income beyond the amount declared based on his income tax T4.

2The trial judge’s calculation method was to use the quantum of the voluntary monthly support payments that the father had made over a number of years to the mother as the basis for discerning from the Child Support Guidelines how much income he would had to have been earning to be required to make such payments. The appellant father’s position on the appeal is that this method was impermissible and constituted an error of law.

3The first level appeal judge used her own method of calculating the amount of income to be imputed in order to perform a check on the acceptability of the trial judge’s method, by grossing up the appellant’s stated expenses and the voluntary payments for income tax. The amount the first level appeal judge arrived at was somewhat lower than the trial judge’s amount, but close enough to satisfy her that there was no unfairness in the circumstances where the payor was found not to have disclosed his true income and ability to pay at the trial.

4In our view, the trial judge and the first level appeal judge made no error, based on the record, in imputing income to the father for the purpose of awarding child support. We agree with the appeal judge that the amount of the award is a matter of discretion to which deference is owed.

5While it would have been preferable for the trial judge to use the method of grossing up expenses to draw inferences about the imputed income amount, we are not satisfied that the appeal judge made a reviewable error by endorsing the decision of the trial judge and dismissing the appeal. The appellant did not challenge the method used by the first level appeal judge or her calculations. His position was that there was no evidentiary basis to impute any income to the appellant. We reject that position.

6The appeal is dismissed with costs fixed at $7,500. The parties are still waiting for the costs award from the trial judge.