Court Information
Ontario Court of Justice
Date: June 12, 2018
Court File No.: Toronto DFO 17 15451
Between:
Khadra Omar Egeh Applicant
— And —
Dereje Kassa Respondent
Before: Justice E.B. Murray
Heard on: June 4, 2018
Reasons for Judgment released on: June 12, 2018
Counsel
Jennifer Ryan — counsel for the applicant
Joseph Osuji — counsel for the respondent
Decision
MURRAY, E.B. J.:
Introduction
[1] This is my decision after an uncontested trial based on documentary evidence as to the Applicant Mother's claim for child and spousal support, retroactive to the parties' final date of separation, October 1, 2015. The parties have three children, H., 17, J., 14 and K., 13, who live with Mother. On January 5, 2018 a final order was made on an unopposed basis providing that Mother have custody of the children.
[2] The major issues in the case are determination of Father's income and Mother's entitlement to spousal support. Father, although represented by counsel, has failed to comply with the Rules and with orders made throughout the case.
He failed to serve and file an Answer within the time allowed. After 5 months had elapsed and times had been extended, he served an Answer on November 7, 2017, but without the required financial statement.
On January 5, 2018 I struck Father's pleadings, but provided that they could be restored if he served and filed a financial statement with the documents required by s. 21 of the Guidelines by March 15, 2018. I also made an extensive disclosure order.
Father served and filed a financial statement on February 15, 2018, but it was wholly inadequate. The statement did not have the personal or corporate notices of assessment required by the Guidelines. The statement failed to acknowledge Father's ownership of Hyatt International.
In addition, Father failed to comply with the disclosure order except in very minor respects.
[3] For oral reasons given on April 5, 2018, I did not restore Father's pleadings and scheduled a hearing with respect to the issues of child and spousal support claimed by Mother retroactive to the date of separation.
[4] Despite striking Father's pleadings, in the hearing conducted on June 6, 2018, I considered the affidavits and financial statement filed by Father during the case and I allowed his lawyer to make submissions.
Father's Income
[5] Mother argues that Father's income is between $100,000 - $150,000 annually. She refers to the partial records she has obtained about his income from truck driving. She produces both historical tax returns for Father as well as more recent records of remittances to Hyatt International for long haul trucking which she says demonstrate that Father has and can continue to earn at least $100,000 annually from trucking.
[6] Mother refers to banking records from 2010-2012 which she found in the family home after Father left showing large sums of money deposited in 4 accounts owned by Father, with substantial payments out to a variety of individuals and businesses. Those records appear to show deposits of about $300,000. She says that she personally saw a driving school owned by Father in Addis Ababa, Ethiopia in 2015, and refers to information she has received from Father's brother and his accountant about a construction business and high rise building owned by him in Ethiopia.
[7] Father has since coming to Canada in 1996 worked as a truck driver. For many years he drove a car carrier for rental companies such as Budget and Avis. Recent records indicate he works as a long haul driver of trucks carrying cars within the U.S. and Canada.
[8] Father has made conflicting statements about his income.
In July 2017 when this case was first in court, he estimated his income at $55,000 annually, and agreed to temporary child support of $1068. (The order has not been complied with.)
In his financial statement of February 15, 2018, Father stated his income is $33,800 annually.
In his 2017 tax return Father stated his income was $12,051 annually. This was reported as self-employed income, with gross business income of $18,000.
In March 2018 Father provided a letter from a Wimala Appiah of National Auto Transit stating that Father was an employee paid $500 weekly. No affidavit or pay stub or other record of payment was provided. (National Auto is a firm which does long haul transportation of vehicles for personal or commercial purposes.)
[9] Father's lawyer acknowledges that his failures to disclose compromises his evidence about income. He suggested that perhaps $65,000 annually was a reasonable amount to impute to him.
[10] Father acknowledged that at one time he had investments in Somalia, purchased with capital received from a personal injury claim related to a 2006 accident. He said that the businesses had been purchased and had been placed in Mother's name, and had failed. He denied Mother's claim that he has investments or businesses now in Somalia and Ethiopia.
[11] I start by saying that I draw an adverse inference against Father because of his inadequate financial statement and his non-disclosure of the bulk of what was ordered. As I said above, Father failed to disclose his personal corporation. He failed to disclose documents which would have been easy to produce, such as bank records or the portion of his passport that would show out-of country travel[1].
[12] With respect to the allegation as to business interests in Somalia and Ethiopia, I do not have sufficient evidence to find that Father currently has significant income from this source. The evidence on this issue is far from clear.
It is clear that in 2010 Father had accounts with balances in excess of $235,000.
Father says that some of the large cheques on the account went to a foreign funds transfer company owned by a relative of Mother's. She does not deny this.
Both he and Mother say that at least some of this money was invested in Somalia by him, and that at least some of the money was used to buy land put in Mother's name. Father says that the money was used to build a hotel/restaurant on the land, managed by Mother's relatives, which failed.
Mother says that she gave Father authorization to sell this land, and that he pocketed the money. Father denies selling the land or pocketing any funds belonging to Mother.
Mother refers to statements made by Father's accountant and brother to her to establish that Father has current business interests in Somalia and Ethiopia. She did not move to obtain an order for third party questioning of these men. She cannot rely on hearsay evidence on this important issue.
Mother did not proceed with a questioning of Father, although this was permitted.
[13] I am not satisfied that Father has current investments or businesses in Somalia that yield significant income. Based on Mother's evidence that Father took her to a driving school in Addis Ababa in the summer of 2015 and advised her that he owned the school, I do accept that he has an interest in this business. However, I have no evidence that would assist in estimating income from that business.
[14] I am satisfied, however, that Father is working or has the ability to earn annual income of $100,000 or more from trucking. Although Father's lawyer suggested in argument that his 2006 accident impaired his ability to work in some way, no medical evidence of any impairment was provided and the evidence provided by Mother[2] showed that he continued to work in trucking in the years following the accident.
[15] With respect to the quantum of Father's income, I note the following.
Tax records show that in 2007 Father earned $73,222 and in 2008 he earned $78,770. During these years he was out of the country in Ethiopia or Somalia for at least 2 months each year. If he had worked full time, his income each year would have been approximately $90,000.
In 2009 Father chose to stop working in trucking in August.[3] His records of employment from the two trucking firms he worked at that year show income of $60,404 for 7 months. If annualized, that would yield an annual income of $103,549.
A cheque to Hyatt International from Galaxy Freight Line Inc. sent to the family home in November 2015 showed a payment of $3500 for 5 trips to Baltimore. Father's business records found by Mother in the family home after his departure show regular bi-weekly payments from Galaxy to Hyatt International beginning in July 2012 for a series of 10 long-haul trips every two weeks. Without taking into account Father's business expenses, such as fuel, this work could yield income in excess of $180,000 annually. Father did not provide any evidence about his business expenses at Hyatt International.
[16] A reasonable conclusion based on this evidence is that since separation and currently Father either is earning at least $100,000 annually, or that he is able to earn this amount.
Child Support
[17] In S. (D.B.) v. (G.S.R.), 2006 SCC 37, the Supreme Court of Canada set out factors to be considered when determining a claim for retroactive child support: the needs of the recipient, the conduct of the payor, the reasons for the delay in seeking support, and any hardship retroactive award may cause for the payor.
[18] With respect to Mother's retroactive claim, her evidence is that Father paid support by depositing funds in H.'s account up to November 2016, and that H. turned over the funds to her. After that date no payments were made. Mother does not state the amount of the deposits – whether it was more or less than what might be required by the Guidelines.
[19] To pay nothing towards support after November 2016 is clearly blameworthy conduct. Mother asked Father to pay support immediately after separation. Her delay in commencing the application is not significant[4]. Need is clear. Mother has supported the children and herself with social assistance payments and child tax benefits. The hardship which a retroactive award will cause Father is difficult to assess, given his faulty disclosure. In any event, any hardship occasioned is his own doing and will be managed by an order with respect to payment of arrears occasioned by this order.
[20] Based on his annual income of $100,000, I order that Father pay support for his three children:
In an amount of $1,920 monthly, commencing Dec. 1, 2017[5];
From Dec. 1, 2016 to and including Nov. 1, 2017, in an amount of $1,845 monthly.
[21] Mother claimed s. 7 expenses related to medical expenses for H. However, her evidence indicates that after application of the tax credit, no amount would be owing from Father on this account.
Spousal Support
[22] I find that Mother is entitled to spousal support on a compensatory and needs-based basis. In reaching that conclusion, I note the following.
The parties cohabited for 17 years. During their relationship, Mother was entirely responsible for maintenance of the household and care of the parties' 3 children. Father was away from the home and unavailable to the children for extended periods of time, both because of his trucking work and because of trips to Ethiopia and Somalia, which meant that the burden of childcare could often not be shared and fell on Mother alone.
Mother's assumption of these responsibilities allowed Father the time to pursue his career in trucking and to explore business opportunities.
H. had a medical condition which led to several surgeries, and Mother was required to be available several times a day to administer necessary medications. The child still suffers from this condition.
Mother did not finish secondary school before giving birth to the party's first child.
Mother is currently 53 years old.
Except for a 3 month period in 2010 when Mother attempted to run a clothing store, she did not work outside the home. The business failed. The time required to care for the children and the household did not permit outside employment.
Given her lack of education and work experience, Mother cannot expect to obtain employment now that pays more than minimum wage.
Mother has chronic medical conditions – arthritis and bursitis – which limit the type of unskilled work she can perform. Despite regular codeine shots, she is still unable to stand or walk for extended periods.
[23] Mother has an obligation to endeavor to support herself to the extent that she is able to do so, taking into account her health and her childcare responsibilities.
[24] There is no evidence that Mother has recently sought employment of any type. She does not say that she is entirely unable to work, only that her employment opportunities are limited.
[25] In my view, it is reasonable to impute income to Mother of $15,000 annually, an amount which represents part-time work at minimum wage. Counsel for Mother suggests that an award in the middle of the Spousal Support Advisory Guidelines is appropriate, and I accept that submission.
[26] With respect to the claim for retroactive spousal support, the Supreme Court held in Kerr v. Baranow, 2011 SCC 10, that "similar considerations to those set out in the context of child support are also relevant to deciding the suitability of a retroactive award of spousal support". The Court held that these factors must be considered in the light of the different legal principles that apply to spousal as opposed to child support. The Court observed that, unlike child support, there is no presumptive entitlement to spousal support; because of that, "delay and misconduct generally carry more weight in relation to (retroactive) claims for spousal support".
[27] With those principles in mind, I find that in this case spousal support should be paid retroactively for the same reasons which grounded the retroactive child support order. As I said above, delay in commencing the claim is not significant. Any failure by Mother to contribute to her own support during the retroactive period are dealt with by imputation of income to her.
[28] I order that Father pay spousal support in an amount of $1,000 monthly commencing December 1, 2016. This amount may be varied if there is a material change in circumstances.
Arrears and Support Deduction Order
[29] The arrears created by the orders for child and spousal support shall be payable in an amount of $250 monthly, commencing July 1, 2018.
[30] A support deduction order shall issue. Counsel need not attend the scheduled return date in this matter on June 14, 2018.
Released: June 12, 2018
Signed: Justice E.B. Murray
Footnotes
[1] Relevant because of Mother's allegation that he has travelled frequently to Ethiopia and Somalia to attend to his business interests.
[2] Tax returns and self-employed business records left in the family home by Father.
[3] It is unclear what he did the balance of the year. Mother's evidence is that he went to Somalia and Ethiopia to invest the funds received from his accident settlement.
[4] Mother commenced the application on March 28, 2017.
[5] Pursuant to the Guidelines as amended on Nov. 22, 2017.