Court File and Parties
Court File No.: D81475/15 Date: 2016-05-24
Ontario Court of Justice
Between:
R.S.
Lauren Israel, for the Applicant
APPLICANT
- and -
M.S.M.
Wiri Kapurura, for the Respondent
RESPONDENT
Rita Liang, for the assignee, The City of Toronto
Heard: May 20, 2016
Justice: S.B. Sherr
Endorsement
Part One – Introduction
1The applicant (the mother) has brought a motion seeking temporary orders for child support and spousal support and a temporary restraining order against the respondent (the father).
2The mother asks the court to impute the father's income at $62,500 per annum for support purposes. She asks that the support orders start as of June 15, 2015.
3The father asks the court to dismiss the mother's motion for spousal support and a restraining order. He proposes to pay ongoing temporary child support based on an annual income of $35,000. [1]
4The issues for this court to determine on this motion are:
a) What is the father's income for the purpose of temporary child and spousal support?
b) Is the mother entitled to temporary spousal support?
c) If so, what amount of temporary spousal support should the father pay?
d) When should temporary support start?
e) Should a temporary restraining order be made against the father?
Part Two – Background Facts
5The mother is 35 years old. The father is 37 years old.
6The parties are first cousins.
7The parties were married in Pakistan on March 20, 2005.
8The father moved to Canada about one month after the marriage and has continued to live here. He went back to Pakistan several times to visit his family.
9The mother stayed in Pakistan and lived with the father's parents.
10The parties have one child together (the child). He was born in Pakistan in 2007. He has always lived with the mother.
11The father sponsored the mother and the child to come to Canada. They arrived in Canada on February 15, 2015 and lived together with the father.
12The parties separated on June 14, 2015. The mother took the child and they went to a shelter.
13The parties have remained separated.
14The mother issued her application on August 25, 2015.
15The parties consented to a temporary order on November 30, 2015. The mother has custody of the child and the father has access to the child, supervised at the Toronto Supervised Access Centre. On a without prejudice basis, the father pays child support of $183 per month to the mother, based on his represented income of $22,900 per annum. The start date for support was September 1, 2015. The parties also agreed to a detailed financial disclosure order for the father. The father was given leave to bring a motion regarding temporary access.
16The father did not bring a motion to increase his access. He did not comply with the financial disclosure order by the return date of March 31, 2016. The mother was given leave to bring this motion and was given permission to move to strike the father's pleadings if his financial disclosure was not provided within 14 days. The court also endorsed that the father would be required to pay the costs of the March 31, 2016 court appearance – the issue of quantum and repayment to be determined on the return date.
17The father subsequently changed counsel and provided the financial disclosure ordered.
18The mother is in receipt of social assistance. She has assigned her interest in support to the City of Toronto (the assignee).
Part Three – Assessment of the Father's Income
19The father's evidence about his income was not reliable or credible.
20The father claims that he is employed as a general labourer in an automotive garage.
21In his first financial statement, sworn on November 6, 2015, the father deposed that he earns $19,800 per annum. He attached a letter from his present employer in support of this. He deposed that he did not own any property. He did not declare any rental income.
22The father provided notices of assessment stating that his gross income in the three prior years was as follows:
a) 2014 - $17,328
b) 2013 - $22,750
c) 2012 - $21,880
23At the first case conference held on November 30, 2015, the father represented his income was $22,900 per annum. The temporary support order was based on this representation.
24The mother subsequently learned that the father had purchased a home in 2015, with a down-payment of about $100,000. Although the father had been living in this property when he swore his first financial statement, he used a different address on his court papers. It is a reasonable inference that he did not want the mother or the court to know about this property.
25The mother produced the sponsorship application of the father dated July 1, 2012. The father represented in his application that he is employed as a mechanic. He claimed an annual income of $45,000 working for one company and self-employed annual income of $19,200, for a total annual income of $64,200. The father had attached a letter from his employer confirming that he worked for them as a mechanic and earned $25 per hour on a full-time basis.
26This information bears no resemblance to the annual income of $21,880 that the father reported on his 2012 income tax return.
27The father deposed that he lied to the federal government about his income to get the mother and the child into Canada. If so, it appears that his employer also lied for him.
28The father was required to disclose his mortgage application. In this application, dated in 2015, the father represented his annual income was $35,000. There is a co-signer for this mortgage. The co-signer is someone who works with the father.
29The father submitted that he misrepresented his income to the mortgagee to qualify for the mortgage.
30The father filed a second financial statement sworn on April 13, 2016. In this financial statement, he reported his employment income at $20,400 per annum.
31The father revealed his home ownership in this financial statement. He is the sole owner of the property. He purchased it on July 27, 2015. He deposed that the current value of the property is $485,000. [2] The father also declared annual rental income from this property of $10,800.
32The father produced a letter from his employer representing that he is paid $425 per week. This letter was clearly unreliable because it also stated that the father is paid $17 per hour and works 50 hours per week. This amounts to $850 per week.
33The three employee pay stubs (all from 2016) produced by the father also made little sense. They state that the father's regular pay is 50 hours per week @ $17 per hour. This comes to $850 per week. However, the stubs also state that his net pay is $850 for the pay period (appearing to be two weeks). No deductions for tax, CPP or employment insurance are recorded on these stubs.
34The father was unable to explain these inconsistencies.
35The father claimed that he paid for his home by borrowing money from family and friends and through his own savings. Loan agreements were not produced.
36The evidence indicates that the father will represent his financial information in any manner that he feels is to his advantage. His evidence cannot be trusted. He is clearly earning or is capable of earning much more income than he has reported to the court.
37The evidence also makes the court question whether the father has an arm's length relationship with his employers. The first employer's letter in support of the sponsorship application bore no resemblance to the income reported by the father in his income tax returns. The pay stubs and employment letter from the father's current employer are internally inconsistent.
38At this preliminary stage, the court will fix the father's income at $53,300 per annum for support purposes. This is based on his employer's representation that he works 100 hours every two weeks at $17 per hour. [3] Allowing two weeks each year for vacation, this comes to an annual income of $42,500 ($850 x 50). The court has added $10,800 for the annual rental income that the father admitted he is earning to come to the total amount.
39The Child Support Guidelines (the guidelines) table amount for one child at this income is $482 per month.
Part Four – Spousal Support
4.1 Entitlement
40Section 30 of the Family Law Act (the Act) states that every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so. Subsection 33 (8) of the Act sets out the purposes of spousal support and subsection 33 (9) of the Act sets out how to determine the amount of spousal support. The court has considered these provisions in making this order.
41Spousal support is not merely a consideration of needs and means. In determining the appropriate amount of spousal support, compensatory and non-compensatory considerations should be taken into account in an effort to equitably alleviate the economic consequences of the breakdown of the relationship. See: Rioux v. Rioux, 2009 ONCA 569, [2009] 97 O.R. (3d) 102 (OCA). Entitlement can be based on compensatory, non-compensatory or contractual grounds. See: Bracklow v. Bracklow.
42In Kowalski v. Grant, 2007 MBQB 235, the court set out the following principles in dealing with temporary spousal support motions:
Interim support is to provide income for dependent spouses from the time the proceedings are instituted until trial.
The court need not conduct a complete inquiry into all aspects and details to determine what extent either party suffered economic advantage or disadvantage as a result of the relationship. That is to be left to the trial judge.
Interim support is a holding order to maintain the accustomed lifestyle if possible pending final disposition as long as the claimant is able to present a triable case for economic disadvantage.
Interim support is to be based on the parties' means and needs assuming that a triable case exists. The merits of the case in its entirety must await a final hearing.
43In Robles v. Kuhn, 2009 BCSC 1163, the court added the following considerations:
On interim support motions, needs and ability take on greater significance.
On interim motions, the need to achieve self-sufficiency is of less importance.
Interim support should be ordered within the Spousal Support Advisory Guideline (SSAG) range unless exceptional circumstances dictate otherwise.
Interim support should only be ordered where a prima facie case for entitlement has been set out.
44It must be kept in mind that an interim support award is a temporary order only and inevitably imperfect. See: Cardoso v. Cardoso, 2013 ONSC 5092. It is meant to provide "a reasonably acceptable solution to a difficult problem until trial". See: Chaitas v. Christopoulos, [2004] O.J. No. 907 (S.C.J.).
45The mother established her entitlement to temporary spousal support based on both a compensatory and non-compensatory basis.
46The mother has a compensatory claim for spousal support based on the roles she has assumed during the marriage. She is the sole caregiver for the child. The father only exercises supervised access. This role will likely compromise the mother's ability to earn income. She will be the parent who needs to be available to meet with the child's teachers, take the child to medical appointments and arrange his activities. It will likely affect the jobs she can take and the hours she can work.
47The mother also has a non-compensatory claim for spousal support based on her need for support and the father's ability to pay it.
48Although an immigration sponsorship agreement is one factor to be considered in assessing spousal support, it is not determinative of the issue. It was found to be a strong factor in favour of ordering spousal support in Camilleri v. Camilleri, [2001] O.J. No. 2602 (Ont. Div. Ct.); Carty-Pusey v. Pusey, 2015 ONCJ 382; Javed v. Kaukab, 2010 ONCJ 606[4]; Gutierrez v. Petten, 2011 ONCJ 549 and this court's decision in Kuznetsova v. Flores, 2016 ONCJ 203, 2016 O.J. No. 1912 (OCJ).
49The father promised to support the mother for three years and signed an undertaking to Citizenship and Immigration Canada to do this once she became a permanent resident.
50Here, the mother and child have become economically vulnerable due to having being sponsored to come to Canada by the father and the relationship breaking down. The mother speaks limited English. The parties had a traditional relationship. She stayed at home with the child. She has no family support in Canada. She and the child are in receipt of public assistance. There is no evidence that she has the ability to be self-supporting on a temporary basis.
51At this stage, the evidence points to the father contributing to the mother's economic disadvantage by his perpetration of domestic violence. [5]
52The father has the ability to support the mother and the child. His previous employer wrote that the father was employed as a mechanic. The father earns a good income. He has no other support obligations or unusual expenses.
4.2 Amount of Spousal Support
53The Court of Appeal in Fisher v. Fisher, 2008 ONCA 11 stated that the Spousal Support Advisory Guidelines, (SSAG), while only advisory, are a useful starting point to assess the quantum of spousal support once entitlement is established. They have been endorsed as ideal for use on temporary support motions. See D.R.M. v. R.B.M., 2006 BCSC 1921, [2006] B.C.J. No. 3299, (B.C.S.C.).
54A software analysis, based on the mother being on social assistance and the father's annual income of $53,300, indicates that the SSAG low range of support is $961 per month. The mid-range of support is $1095 per month and the high range of support is $1232 per month.
55In a short marriage, with young children, most of the primary caregiver's disadvantage lies ahead of her, not behind her, namely the labour market consequences for the parent of ongoing child care. This is a strong consideration in ordering support towards the higher end of the SSAG ranges. See: Ideas of Spousal Support Entitlement (2015), 34 Can. Fam. L.Q. 1, by Professor D.A. Rollie Thompson.
56The existence of a sponsorship agreement can be a factor in ordering support at the high end range of the SSAG. See: The Spousal Support Advisory Guidelines, A New and Improved User's Guide to the Final Version, Department of Justice Canada, March 2010, Chapter FV 7(b) by Carol J. Rogerson and D.A. Rollie Thompson, where the authors write:
Short Marriages: Immigration Sponsorship Cases
One category of short marriages, those involving immigration sponsorship agreements, raise some unique issues under the without child support formula. These are cases where a marriage breaks down while a sponsorship agreement is in place. Most spousal sponsorship agreements now run for a period of 3 years, but in the past the duration was as long as 10 years. In some cases involving very short marriages, courts have used the duration of the sponsorship agreement as the appropriate measure for the duration of spousal support, thus extending duration beyond the durational ranges generated by the Advisory Guidelines. As well, in such cases, some courts have also ordered support in an amount beyond the high end of the range to generate an amount of support that will meet the recipients' basic needs and preclude resort to social assistance. See Gidey v. Abay, [2007] O.J. No. 3693 (Ont.S.C.J.); and T.M. v. M.A.G., 2006 BCPC 604 (B.C.P.C.).
Some of the identified exceptions may be relevant in these cases to justify a departure from the formula ranges:
the compensatory exception in short marriages
the exception for compelling financial circumstances in the interim
the basic needs/hardship exception
However, it does appear that the sponsorship agreement may be an independent factor in short marriages, leading to either an amount or a duration outside the formula ranges.
57The father submits that his support obligation should be reduced because the parties only lived together for 4 months, despite being married for over 11 years. The court gave this factor limited weight at this stage. The evidence indicates that the mother and the child have been wholly dependent on the father (and his family) for the entirety of the marriage. He sponsored them to come to Canada, recognizing in his sponsorship application that the mother and child would continue to be dependent upon him.
58The evidence supports making an order towards the high end range of the SSAG on a temporary basis for the following reasons:
a) The mother has a prima facie compensatory claim for spousal support.
b) The mother is in a particularly vulnerable economic position at this time. This was a traditional marriage. The mother stayed at home with the child and was supported by the father and his family. The mother speaks no English. She has no family in Canada and is isolated. She has spent most of her time in Canada in a shelter. It appears that she is a victim of domestic violence.
c) The father sponsored the mother to come to Canada. The father undertook in the sponsorship application to provide for the basic requirements of the mother and the child and to provide food, clothing, shelter, household supplies and other goods and services and health needs for them. The father agreed that his undertaking remains in effect no matter what may change in his life – for example, if he becomes divorced. His undertaking sets out that he will be in default if a government makes a payment that he has promised to pay – for example, if the mother or the child receive social assistance, he is in default of his undertaking.
d) The mother needs support towards the high end range of the SSAG range to meet her basic needs.
e) The mother is on social assistance. The taxpayer should not be supporting the mother, to the extent that the father is able to do so.
59The father shall be required to pay the mother temporary spousal support of $1,150 per month. The software analysis shows that this payment, together with the child support payment, will provide the mother and the child with 50.9% of the family's net disposable income – the father with 49.1%.
4.3 Start Date of Support
60This court has jurisdiction to make a temporary retroactive support order. Subsection 34 (f) of the Family Law Act reads as follows:
Powers of Court
- (1) In an application under section 33, the court may make an interim or final order,
(f) requiring that support be paid in respect of any period before the date of the order;
61The leading case on retroactive child support is D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 (referred to as DBS). At paragraph 133 of DBS, the Supreme Court of Canada held that in determining whether to make a retroactive award, a court will need to look at all of the relevant circumstances in front of it. The payor's interest in certainty must be balanced with the need for fairness and flexibility. The court listed the following factors for consideration and provided that there is no priority among them; none are decisive and all should be considered:
Has the applicant provided a reasonable excuse for delay in applying to court?
Conduct of the payor
Circumstances of the child
Hardship for the payor
62The Supreme Court in Canada in Kerr v. Baranow, 2011 SCC 10, [2011] SCJ 10 decided that DBS factors apply, as modified, for spousal support (circumstances of spouse are relevant as opposed to circumstances of the child). The court found that there is no presumptive entitlement to spousal support and, unlike child support, the spouse is, in general, not under any legal obligation to look out for the separated spouse's legal interests. Thus, concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support. The court found that DBS emphasized the need for flexibility and a holistic view of each matter on its own merits and that the same flexibility is appropriate when dealing with retroactive spousal support. [6]
63Where retroactive financial support is sought on the interim motion, the motions court is not making the ultimate decision as to whether the party is entitled to retroactive financial support in the Application. That is for the trial judge to determine on a complete evidentiary record. The issue for the motions judge is to consider the factors in D.B.S. based on the motion materials and then proceed, if necessary, to ascertain whether and the extent it is fair and appropriate to both parties that such relief is granted on an interim basis in the circumstances of the evidentiary record of the motion. See: Orsini v. Orsini, 2016 ONSC 3332.
64Many courts have ordered temporary retroactive spousal support where the "circumstances of the case justify immediate relief with some retroactive award of support." See: Lakhani v. Lakhani, at para. 16); Dickie v. Dickie, 17 R.F.L. (5th) 304 (Ont. SCJ); Elgner v. Elgner, 2010 ONSC 794; Trombetta v. Trombetta, 2011 CarswellOnt 318 (SCJ); Turk v. Turk, 2008 CarswellOnt 512 (SCJ); Samis (Guardian of) v. Samis, 2011 ONCJ 27.
65Other courts have been disinclined to back-date temporary support to a date prior to the filing of the motion because of the limited evidence available in proceedings for temporary relief, which are based on affidavit evidence. In Gore-Hickman v. Gore-Hickman, 2005 SKQB 383, the court writes at par. 23.8:
Retroactive support can arise on an interim application. Interim applications, by their very nature, are meant to put in place temporary measures pending trial or settlement. They are not meant to determine the ultimate issues between the parties. Courts on interim applications, for the most part, are dealing with affidavit evidence that is often incomplete and contradictory. There is no opportunity for either party to cross-examine the other or adduce further information that may very well sway the ultimate determination. If parties do not proceed with their application beyond the interim order stage, one must assume they are satisfied with the terms of that order. The fact some people never proceed further is not justification for courts to decide ultimate issues of retroactive support on interim applications. Requests for retroactive orders are more properly dealt with at trial or after a hearing where all relevant evidence can be adduced. Variation applications result in final orders and judges dealing with such applications can order the parties be cross-examined on their affidavits or can order viva voce evidence.
66The mother moved promptly to court to obtain support. Her delay in moving for temporary spousal support is understandable since the father represented that he was earning a minimum-wage level income that would not justify making a temporary spousal support order. Once she had financial disclosure, the mother moved promptly for relief.
67The father has engaged in blameworthy conduct. He has misrepresented his income and assets. He delayed in delivering full financial disclosure. He has paid an inadequate amount of support.
68The circumstances of the mother and the child have been disadvantaged due to the father's failure to pay adequate support. They are on public assistance, have spent most of their time in Canada living in a shelter and have been living a subsistence lifestyle as a result of receiving inadequate support from the father.
69It does not appear that the father will suffer hardship if the court makes a retroactive order. The retroactive relief sought by the mother is minor. [7] The father has equity in his home. It is likely that he can obtain funds to pay the arrears created by this order.
70This is a case where a retroactive order on a temporary motion is justified. The period of retroactive support sought is short, the mother and the child require the support now and the mother has an overwhelming case for retroactive support based on the DBS factors.
71Support shall start as of June 15, 2015.
Part Five – Restraining Order
5.1 Legal Considerations
72Justice Robert J. Spence, in McCall v. Res, 2013 ONCJ 254, reviewed the legal principles with respect to restraining orders. This court adopts his analysis, which is set out in paragraphs 27-31 as follows:
The Statutory Scheme
27The statutory authority for the making of a restraining order emanates from section 35 of the Children's Law Reform Act ("CLRA") and section 46 of the Family Law Act ("FLA"). Section 35 of the CLRA provides [my emphasis]:
Restraining Order
- (1) On application, the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody. 2009, c. 11, s. 15.
Provisions of Order
(2) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:
Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant's lawful custody.
Restraining the respondent from coming within a specified distance of one or more locations.
Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.
Any other provision that the court considers appropriate.
Section 46 of the FLA provides [my emphasis]:
Restraining Order
- (1) On application, the court may make an interim or final restraining order against a person described in subsection (2) if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody. 2009, c. 11, s. 35.
Same
(2) A restraining order under subsection (1) may be made against,
(a) a spouse or former spouse of the applicant; or
(b) a person other than a spouse or former spouse of the applicant, if the person is cohabiting with the applicant or has cohabited with the applicant for any period of time. 2009, c. 11, s. 35.
Provisions of Order
(3) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:
Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant's lawful custody.
Restraining the respondent from coming within a specified distance of one or more locations.
Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.
Any other provision that the court considers appropriate. 2009, c. 11, s. 35.
28Although the legislation permits the court to make a restraining order prohibiting or restricting the father's contact with the mother or the child, it does not permit the court to make a restraining order which extends to "family""friends" and "acquaintances" of the mother, which the mother has requested in this case. Accordingly, that particular request for relief by mother cannot be granted.
Case Law
29Before the court can grant a restraining order, it must be satisfied that there are "reasonable grounds [for the mother] to fear for her own safety or for the safety of [her child]". In Fuda v. Fuda, 2011 ONSC 154, 2011 CarswellOnt 146 (Ont. S.C.), Justice McDermot had this to say, at paragraph 31 [my emphasis]:
It is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent's actions or words. A court must be able to connect or associate a respondent's actions or words with an applicant's fears.
30In Azimi v. Mirzaei, 2010 CarswellOnt 4464 (Ont. S.C.), Justice Ruth Mesbur made the following comments, at paragraphs 7 and 9 [my emphasis]:
More importantly, Horkins J made specific findings of fact that the applicant had physically and verbally abused the respondent, with psychological abuse being more frequent. It is telling that today, when the respondent raises the issues of her ongoing psychological fear of the applicant, the applicant simply suggests she should get counselling. [In this case] I accept that the respondent has reasonable grounds to fear for her own safety and the safety of the child who is in her custody. This fear extends to both their physical safety and psychological safety.
31What I take from these cases is:
The fear must be reasonable
The fear may be entirely subjective so long as it is legitimate
The fear may be equally for psychological safety, as well as for physical safety
5.2 Findings
73The mother seeks an order that the father be restrained from molesting, annoying or harassing her or the child or coming within 500 meters of anywhere that she and the child may reasonably be expected to be.
74The evidence supports, on a balance of probabilities, findings that:
a) The mother's fear of the father is reasonable.
b) Even if the extent of the mother's fear of the father is subjective, it is legitimate.
c) The mother fears for her psychological safety as well as her physical safety.
d) The terms of the restraining order sought by the mother are reasonable and proportionate.
75The mother alleged that the father has been violent, threatening and controlling with her.
76The mother said that when she came to Canada, the father would threaten to deport her and take the child from her. When enraged, he threw objects across the room and would swear at her. She said that these episodes took place in front of the child. She said that the father's outbursts escalated and she fled to a shelter with the child.
77The mother claimed that the father controlled her in Canada by not letting her communicate with her friends and family in Pakistan.
78The mother said that the father threatened that if she did not leave Canada quietly that he would make sure she left Canada alive or dead.
79The mother did not move immediately for a temporary restraining order.
80At the case conference on March 16, 2016, the mother sought leave to bring a motion for a temporary restraining order. She claimed that the father was threatening her through family members.
81The mother deposed that the father's harassment of her has escalated since March 16, 2016.
82The mother provided evidence of a false Facebook account created in her name. Her face was photo-shopped on the body of a woman in her bra only. This Facebook page was sent to all of the mother's family. This was particularly humiliating to a traditional Muslim woman.
83The father denied creating the Facebook account. The mother had been advised by her brother that the father blamed his brother for doing this.
84The mother deposed that the child recently refused to see the father at the supervised access centre. The father's brother then called her brothers in Pakistan threatening that the mother would "see the consequences".
85The mother said that she was advised by her brother that the father contacted him and told him that the mother owed him five million rupees for all the expenses associated with her.
86The mother said that last month her father was taken to a police station in Pakistan at the behest of her father-in-law, who had claimed he was withholding property. Her father-in-law allegedly told her father"you took away our grandson, what if we kidnap your grandson?"
87The mother alleges that the father recently contacted her brother and told him that "I will not spare her; I will punish her; I will punish anyone who takes her side; and I will show her how I can take her child from her."
88The mother deposed that she is now receiving pressure from her family to either return to live with the father or return to Pakistan - due to the threats of the father and his family.
89The father denies that he has threatened the mother. [8] He believes that the mother never had any intention to live with him and has concocted these allegations to be able to remain in Canada with the child.
90The court recognizes that there are limitations with the mother's evidence. She did not provide affidavits from her family members. These allegations are denied and untested by cross-examination. They are based on oral statements – there is no documentation to support them. The veracity of her allegations is primarily based on an assessment of the mother's credibility against the father's.
91The father also submitted that the mother's failure to provide any shelter or police records that would indicate she reported abuse undermines her credibility. The court is not prepared to draw that conclusion. Domestic violence is complicated and a victim's actions, or lack of action must be looked at in context. Here, the mother is very alone in Canada. She speaks limited English. If her evidence is accurate, she has been controlled by the father and his family for a long time. She is afraid of them. There is a significant power imbalance between them. She is afraid they have the power to deport her and the child. She and the child are economically vulnerable. She is humiliated by what has happened. She is likely concerned about a government's ability to protect her and the child. It would not be easy for a woman in these circumstances to come forward and report what has happened to her.
92The court prefers the evidence of the mother to the father at this stage.
93The father is not a credible witness. He misrepresented his income to the court. He did not initially reveal that he owned a home or received rental income. He provided the court with an incorrect address, likely to hide the fact that he is a homeowner. It appears that he has colluded with one or both of his employers to provide inaccurate financial information.
94The father has a history of being dishonest. He admitted that he lied to the federal government about his income in his sponsorship application and that he lied about his income to his mortgagee to obtain a mortgage. His representations of his income to Revenue Canada appear to have no relationship to his actual earnings.
95This propensity to dishonesty gives the court no confidence in the father's evidence.
96The court is also very concerned about the escalation in threats after this motion was scheduled.
97The father argues that he cannot control what happens in Pakistan. The evidence indicates that it is more probable than not that the father is instigating this harassment to put pressure on the mother to resolve this court case to his satisfaction. It is confirmatory evidence of the controlling behaviour that the mother alleged.
98This behaviour needs to be stopped now. The father needs to know that he will be held responsible for this behaviour if it continues.
99A separate endorsement for the temporary restraining order will be prepared.
Part Six – Conclusion
100A temporary order shall go on the following terms:
a) The father shall pay the mother child support of $482 per month, starting on June 15, 2015. This is the guidelines table amount for one child, based on an income assessed to the father of $53,300 per annum.
b) The father shall pay the mother spousal support of $1,150 per month, starting on June 15, 2015.
c) The father will be credited with all support paid to the mother since June 15, 2015, as reflected in the records of the Director of the Family Responsibility Office.
d) The Director of the Family Responsibility Office shall amend their records to be in accordance with this order.
e) A separate temporary restraining order endorsement shall be issued.
101If the mother wishes to seek costs, she shall serve and file written submissions by June 7, 2016. The father shall then have until June 14, 2016, to serve and file any written response. The submissions shall not exceed three pages, not including any bill of costs or offer to settle. The submissions should be delivered to the trial coordinators office on the second floor of the courthouse.
102The court thanks counsel for their excellent presentation of this motion.
Released: May 24, 2016
Justice S.B. Sherr
Footnotes
1The father submitted that he was prepared to pay support at this income level even though he was only earning about $31,000 per annum.
2This valuation of the property is probably low. The mortgage application values the property at $485,000. The property value has likely increased since this application was made.
3The father acknowledged that he is working 50 hours each week at $17 per hour.
4In Javed, the court writes at paragraph 24:
24 The case law is clear that any agreement can be considered. It does not matter whether the agreement is between the sponsor and the immigrant, or whether, as in this case, it is between the sponsor and the government. It is also noted that the precise wordings of the agreements may vary, although in most cases, as in this case, the text of the sponsorship agreement was not provided. Clause 33(9)(m) of the Family Law Act (reproduced in full above) specifically directs the court to consider "any other legal right of the dependant to support" in determining the amount and duration of support. Thus, far from negating his obligation to pay spousal support, the existence of a sponsorship agreement actually strengthens the obligation.
5The details of the father's domestic violence are set out below.
6This is discussed in Paragraphs 207-211 of the decision.
7The mother is seeking retroactive relief from June 15, 2015, until she issued the application on August 25, 2015. Any support claimed after an application is issued is prospective support, not retroactive support. See: Mackinnon v. Mackinnon, 2005 13 R.F.L. (6th) 221 (Ont. C.A.).
8The father stated that the mother was not afraid of him or his family and was making up her abuse allegations. He did not specifically deny the alleged actions of his family members set out by the mother. He submitted that what happens in Pakistan is not relevant to the case.
