minicounsel

DATE: 2022 05 27 COURT FILE No.: D30063/19

BETWEEN:

AMINA MOHAMED ISSE Applicant

— AND —

ALI ABDI MOHAMUD Respondent

Before: Justice Melanie Sager

Heard on: April 25-29, 2022

Reasons for Judgment released on: May 27, 2022

Counsel: Jacqueline Ozor, counsel for the applicant(s) Ali Abdi Mohamud, on his own behalf

Sager, J.:

1A trial proceeded in this matter over five days between April 25-29, 2022, to determine the Respondent’s (father) child and spousal support obligations and whether the Applicant (mother) can travel with the parties’ five minor children without the father’s prior consent.

Background of the parties

2The parties were married in a customary wedding ceremony in Somalia in February 1992. In or around 1994, the civil war in Somalia caused the parties to flee to Kenya. In Kenya they had their first of seven children, Foosia born […], 1994. The mother was pregnant with the parties’ second child Aisha born […], 2001, when she arrived in Canada around November 2000. The father and Foosia remained in Kenya.

3The mother was able to sponsor the father and Foosia to come to Canada in 2007. Shortly after arriving in Canada, the father moved to Alberta to pursue employment opportunities.

4The father returned to Toronto on occasion to visit the mother and their children. The parties had their third child, Sumaya on […], 2008, their fourth child Mohammed on […], 2008, twins Muaad and Mubeen on […], 2009, and their seventh child Muawiyah on […], 2012.

5The father remained in Alberta throughout the parties’ relationship where he currently owns and operates a trucking business. The business is incorporated, and the father is the sole shareholder. The mother did not work during the relationship as she was solely responsible for the care of the parties’ seven children. She continues to live in Toronto with all seven children, but Foosia is no longer dependent on her parents for her support.

6The mother says the parties separated in December 2011 while the father claims their relationship ended when they were granted a “divorce” in Somalia in January 2017.

7In October 2016 the mother and the five youngest children travelled to Somalia. Foosia was already in Somalia studying medicine when the mother asked the father to purchase plane tickets for her and the children to go to Somalia as the mother was suffering from depression and was worried that the Toronto Children’s Aid Society would remove the children from her care. Aisha stayed behind in Canada and did not move to Somalia. The mother referred to this trip in her evidence as a vacation.

8The mother says she did not realize that the father had purchased her a round trip ticket but had only purchased one way tickets for the children. She says she eventually returned to Canada without the children as her ticket would have expired. She returned to Somalia on two occasions but could not bring the children back to Canada with her as she could not raise the money to purchase plane tickets for them.

9The father says that the mother asked him to relocate the children to Somalia permanently which he did.

10The father took a new wife in Somalia in 2016. The mother says she did not know that the father had married again until she arrived in Somalia with the children.

11At some point the parties’ oldest child Foosia fled with the five youngest children from Somalia to Kenya and the mother enlisted the help of Global Affairs Canada to loan her the money to purchase plane tickets to bring the children back to Canada.

12All six children returned from Somalia to Canada to live with the mother and Aisha in Toronto in December 2017.

The history of the litigation

13The mother commenced this litigation on January 23, 2019. In her Application she seeks orders for custody of the children (this is the old language under the Children’s Law Reform Act (CLRA) and is now referred to “decision making responsibility”), retroactive and prospective spousal and child support, contribution towards section 7 expenses incurred by the mother for the children, an order prohibiting the father from having direct contact with the mother, and, an order prohibiting the father from removing the children from Canada without the mother’s written consent or a prior court order.

14The father served and filed an Answer and Claim dated May 20, 2021. He did not oppose the mother’s request for orders for custody, spousal and child support or an order granting him access (now referred to as parenting time in the CLRA). He did oppose the mother’s request for retroactive support. In his Claim he requests an order for “access” to the children.

15On February 11, 2019, Justice Carolyn Jones made the first order in this case on an urgent basis and without notice to the father. The order provides that the parties’ six minor children shall not be removed from Ontario or Canada without the written notarized consent of the mother or court order.

16On June 26, 2019, the parties consented to a temporary without prejudice order requiring the father to pay the mother child support for the children in the amount of $1482.00 per month based on his claim of an annual income of $50,000.00 and the Child Support Guidelines. The parties also executed a consent to exchange financial disclosure.

17The matter was adjourned several times at the parties’ request between June 26, 2019, and February 25, 2020, to allow additional time to exchange disclosure and for settlement discussions.

18The case was on adjournment from May 2020 until August 2020 due to the public health emergency caused by the Covid-19 virus. The case was then adjourned between August 2020 and March 3, 2021, at the request of the parties for various reasons.

19As the litigation progressed it became clear that the single major issue to be determined is the quantum of the father’s income for the purpose of determining child and spousal support.

20After several attempts by the Case Management Judge to refer this matter to trial, it was put on the trial list for the domestic trial sittings between April 25-29, 2022. A trial plan was prepared by the Case Management Judge and the parties were ordered to prepare their evidence in chief in affidavit and a timetable was ordered for the serving and filing of the affidavits as well as the trial record and updated sworn financial statements.

21The mother complied with the Case Management Judge’s orders, but the father did not. He did not serve and file an affidavit of his evidence in chief or an updated sworn financial statement.

22At the commencement of the trial, the court was told that there is no dispute over decision making responsibility or parenting time for the father. The only issues to be decided by the court are spousal and child support and the mother’s right to travel with the children with or without the father’s prior consent.

23Both parties gave evidence at the trial. The mother’s evidence in chief was delivered by affidavit as ordered by the Case Management Judge. As the father failed to comply with this order, he was permitted to give his evidence in chief orally.

24In addition to the parties, the mother called the parties’ eldest child, Foosia, as a witness and the father called a representative of the accounting firm who prepares his corporate financial statements and corporate and personal income tax returns who gave evidence.

The parties’ positions at trial

25The mother says that the father has failed to demonstrate for the court what his income is for the purpose of determining his child and spousal support obligation. She says that he has failed to provide adequate financial disclosure noting that some of the important disclosure was provided during the trial. The mother says that the corporate income statements and balance sheets demonstrate a mismanaged business. She expresses the most concern for the father’s inability to explain where thousands of dollars withdrawn from his corporate bank account from 2017 to 2020 went.

26The mother says she has no way of knowing if the expenses claimed by the corporation are accurate or reasonable. She also questions the timing of the significant decrease in the profit earned by the corporation which she says declined significantly after she commenced this proceeding.

27The mother asks the court to make the following orders:

(a) An order imputing an annual income to the father for the purpose of child and spousal support of $200,000.00.

(b) An order for prospective child support for the six youngest children of $5,100.00 per month from the date of the Application based on the father’s annual imputed income of $200,000.00 and Child Support Guidelines up to and including June 2019 with credits for amounts paid.

(c) An order for prospective child support of $5,100.00 for all seven children as of July 1, 2019, at which time Foosia was in school full time and residing with the mother up to and including April 1, 2020, with credits for amounts paid.

(d) An order for prospective child support for the six youngest children of $5,100.00 per month as of May 1, 2020, and on the first of each month thereafter based on the father’s annual imputed income of $200,000.00 and Child Support Guidelines with credit for amounts paid.

(e) An order that the father pay the mother retroactive child support of $4,936.00 per month based on the father’s annual imputed income of $200,000.00 and Child Support Guidelines for the six youngest children, with credit for amounts paid, for the period of January 2016 to September 2016.

(f) An order requiring the father to pay retroactive child support to the mother for Aisha for the period of October 2016 to December 2017 in the amount of $1,633.00 based on the father’s annual imputed income of $200,000.00 and Child Support Guidelines.

(g) An order that the father pay the mother retroactive child support of $5,100.00 per month based on the father’s annual imputed income of $200,000.00 and Child Support Guidelines for the six youngest children, with credit for amounts paid, for the period of January 2018 to December 2018.

(h) An order requiring the father to pay the mother spousal support of $3000.00 per month retroactive to January 2012.

(i) An order requiring the father to pay the mother $6,244.51, the amount she owes Global Affairs Canada for the cost of bringing the children back to Canada from Somalia.

(j) An order requiring the father to reimburse the mother the cost incurred by her to enrol the children in private Islamic school between 2018 and 2019.

(k) An order permitting the mother to travel with the children outside of Canada without the father’s prior consent but with advance notice.

28The father asks the court to fix his child support obligation on an income between $50,000.00 and $60,000.00 and to make no order for spousal support. The father could not advise the court when he felt the child support order should commence but he opposes any retroactive child support order in his pleadings claiming he has always supported his children.

29The father also asks the court to order the mother to obtain his consent before she can travel outside of Canada with their minor children.

The issues for the court to determine

30The following are the issues to be decided:

(a) What is the father’s income for the purpose of determining his child and spousal support obligation?

(b) Once the father’s income is determined, what amount of child support is owed by him to the mother from the date of the Application?

(c) What amount of retroactive child support if any should the father be required to pay the mother for the children for the period of January 2016 to December 2018?

(d) What amount of retroactive child support if any should the father be required to pay the mother for Aisha for the period of October 2016 to December 2017 when she remained in Canada while he supported the 6 other children in Somalia?

(e) Is the mother entitled to spousal support from the father?

(f) If the mother is entitled to spousal support, what amount is payable by the father and from what date?

(g) Should the mother be able to travel with the children without the father’s prior written consent?

Issue #1 - What is the father’s income for the purpose of determining his child and spousal support obligation?

The law

31The court must determine the father’s income is accordance with the Child Support Guidelines (the Guidelines). Section 2 of the Guidelines provides that “income” means the annual income determined under sections 15 to 20. Where the parties do not agree on what the payor’s income is, section 16 of the Guidelines states that “Subject to sections 17 to 20, a parent’s or spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III.”

32If relying on a payor’s most recent personal income tax return would not be the fairest way in which to determine their income, section 17 provides that the court can determine a fair and reasonable amount having regard to the payor’s income over the last three years and “any pattern of income, fluctuation of income or receipt of a non-recurring amount”.

33When a payor is the sole shareholder of a business, section 18 of the Guidelines also comes into play. This section gives the court discretion to attribute some or all of the pre-tax income of a corporation to the shareholder, director or officer personally or, in the alternative, to attribute an amount less than or equal to the pre-tax corporate income that is commensurate with the services that the parent provides to the corporation. Whenever section 18 comes into play the onus is on the shareholder, director or officer to show that corporate monies, whether retained earnings or pre-tax corporate income, are not available for support purposes. [1] That is because the payor parent knows more about the business than the recipient and is therefore in the best position to explain why some or all of the company’s pre-tax income is not available for support. [2]

34Finally, in appropriate circumstances, the court may impute income to the payor for reasons including those enumerated in section 19 of the Guidelines. [3]

35Section 19 of the Guidelines provides that the court may impute to a parent or spouse “such amount of income … as it considers appropriate” and provides a non-exhaustive list of such circumstances. The relevant portions of s. 19 read as follows:

19.(1) Imputing Income – The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the spouse.

(d) it appears that income has been diverted which would affect the level of child support to be determined under these guidelines.

(f) the parent or spouse has failed to provide income information when under a legal obligation to do so.

(g) the parent or spouse unreasonably deducts expenses from income.

(h) the parent or spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax.

36The above is a non exhaustive list and as such, the court has discretion to impute income based on other circumstances.

37Where a party fails to comply with his disclosure obligations as provided for in s. 21 of the Guidelines and provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them. [4]

38The failure of the payor to disclose their income will mitigate the obligation of the recipient to provide an evidentiary basis to impute income. [5]

39A self-employed person has the onus of clearly demonstrating the basis of his or her net income. This includes demonstrating that the deductions from gross income should be taken into account in the calculation of income for support purposes. This principle also applies where the person’s employment income is derived from a corporation that he or she fully controls. [6]

40The court may consider pre-tax corporate income, together with line 150 income over the previous three years to determine income if the court believes the line 150 income of the payor does not adequately reflect income. This approach is also consistent with the fundamental objective of the Guidelines, which is to ensure fairness to both spouses, and to their children, in determining what amount of money is in fact reasonably available for the payment of support. [7]

41Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. Clause 19(1)(a) of the Guidelines is perceived as being a test of reasonableness. [8]

42The determination to impute income is discretionary as the Court considers appropriate in the circumstances of the case. In exercising discretion, a court will bear in mind the objectives of the Guidelines to establish fair support based on the means of the parents in an objective manner that reduces conflict, ensures consistency and encourages resolution. [9]

43Lifestyle can provide the criteria for imputing income. [10] Where there are no other accurate indicators of income, the court has looked at the cost of the payor’s lifestyle and imputed income based on that assessment. [11]

Credibility of the parties

The mother

44The mother’s evidence in chief was delivered by affidavit. There were some gaps in her evidence regarding the date of separation, the reason for the family’s move to Somalia in 2017 and whether it was intended to be a temporary or permanent move, and the reason why she waited seven years from the date she says the parties separated to seek child and spousal support.

45Despite the gaps in the mother’s evidence, she was generally a credible witness. The father’s cross examination of the mother was very limited and did nothing to impeach her credibility.

The father

46The father’s conduct in the litigation and evidence at trial raise serious credibility issues for the court.

The father’s conduct

47The father was represented by counsel from June 2019 until April 4, 2022. He prepared pleadings, sworn financial statements and disclosure briefs with the assistance of counsel. He received legal advice for almost three years. He severed his retainer with his lawyer just prior to the commencement of this trial.

48The father failed to demonstrate what his true income is for the purpose of support. While he did serve and file a document brief of over 1000 pages, that did not demonstrate in a clear and concise manner for the mother and the court what his true income is. In fact, his disclosure raised more questions then answers.

49After deciding to represent himself, the father failed to comply with the court’s order to prepare his evidence in chief by affidavit. He failed to serve and file an updated sworn financial statement for trial; and he delivered important corporate financial documents during the trial.

50The father prepared two sworn financial statements in the litigation. On both he failed to disclose important assets and expenses. For example, he failed to disclose his interest in a business, money sent to his family in Somalia every month, and the amount he spends annually in travel to Somalia for four to six months.

51The father’s conduct in the litigation and at trial has severely impacted his credibility.

The father’s evidence

52The father’s evidence was unreliable as he could not explain discrepancies on his own sworn financial statements; he could not explain his personal income tax returns; and he claimed to have no understanding of his corporate financial statements. The father also could not explain where the tens of thousands of dollars withdrawn from his corporate bank account since 2017 have gone.

53As described below, a significant amount of money has been removed from the corporate bank account between 2017 and 2020 by “bank withdrawal”, “transfer” or “Canadian bank draft”. No reliable evidence was given explaining the destination for these funds. Despite money being “transferred” no explanation was provided for where the money was transferred. This information should have been readily available given the issues before the court.

54The father claims to have little to no understanding of his corporation’s financial affairs or the documents that explain the finances of the company.

55The court finds it difficult to accept his unsophisticated presentation in relation to his knowledge about the finances of his company given that he owns and operates a corporation that has grossed between $300,000.00 and $400,000.00 every year since 2016. He also successfully negotiated the purchase of a truck worth over $200,000.00 in 2018.

56There were also issues with the father’s oral evidence contradicted previous affidavits sworn in the course of the litigation. At trial he said he has only ever employed one additional driver who drives his truck when he is out of the country to ensure that the corporation earns income while he is away. He said there are no other employees or subcontractors hired by the company. In affidavit evidence prepared by the father during the litigation and adopted by him at trial as part of his evidence in chief, he swore that he has two friends who drive for him when needed and he does the same for them. He says in his affidavit evidence that he has no employees and one subcontractor.

57The concerns about the father’s evidence as set out above results in the court viewing his evidence with suspicion and questioning his credibility.

The evidence relevant to the determination of the father’s income for the purpose of child and spousal support

58The father owns and operates Mubiin Trucking Limited in Edmonton, Alberta. He transports goods such as oil, asphalt, and sulfur. He is the sole shareholder of the corporation. The father admits to working six to eight months a year and pays a friend to work for him the remainder of the year when he is in Somalia.

59In 2018 Mubiin Trucking Ltd purchased a truck for $233,722.65. The company put down $23,362.50 in cash and is obliged to make 60 payments of $4033.61 plus HST after which the company can purchase the truck for $1.00 plus HST.

60According to financial statements prepared for the corporation by Hamdi Accounting Services Ltd, Mubiin Trucking Limited has declared the following gross sales and pre-tax profits since 2016:

Gross Sales	Net Profit
2016	$308,892
2017	$382,117
2018	$418,087
2019	$317,806
2020	$313,823
2021	$392,446

61The father’s personal income tax returns from 2016 to 2021 declare either or both of employment income and income from dividends paid by a Canadian corporation as follows:

2016 Dividend income of $50,000.00
2017 Dividend income of $50,000.00
2018 Employment income of $55,000.00
2019 Employment income of $24,000.00 and Dividend income of $25,300.00. [12]
2020 Total income of $48,400.00 of which $16,000.00 was paid in dividends. [13]
2021 Total income of $60,000.00 of which $52,174.00 was paid in dividends. [14]

62The father and the representative from the accounting firm employed by him gave evidence that he uses his corporate bank account as his own personal bank account and at the end of the year his accounting firm determines after discussions with the father, what amount of money he accessed from the corporate bank account for personal reasons. Once this amount is determined, it is reflected on the father’s personal income tax return as either employment and/or dividend income.

63The father uses his personal credit cards for both business and personal use and the corporation pays the amount owing each month. The witness from the accounting firm said that they do not go through the credit card statements to determine what expenses were for business and what were personal.

64The father’s personal car insurance is paid out of his corporate bank account each month.

65The corporation claims a deduction each year for a home office at the father’s residence equal to 30% of his living expenses. In 2020 and 2021 this amounted to a $5600.00 deduction by the corporation.

Issues with the father’s evidence regarding his income

66The father’s sworn financial statements do not disclose his interest in Mubiin Trucking Limited.

67The father did not obtain an income analysis from a certified business valuator. Instead, he furnished the mother and the court with a document brief disclosing over 1000 pages of financial documents both corporate and personal. While a self-employed party does not have an obligation to produce an income analysis if their income is called into question, a self-employed party has an obligation to satisfy the court of their true income. [15] This may require an expert. [16]

68The father clearly does not use 30% of his two bedroom apartment he shares with a roommate as a home office. He therefore is not entitled to deduct 30% of his living expenses as a corporate expense.

69The father and his witness, who prepares his corporate financial statements, could not explain the tens of thousands of dollars withdrawn from the corporate bank account between 2017 and 2020 by way of a “transfer”, “cash withdrawal” or “Canadian bank draft”. Neither the father nor the witness from the accounting firm who he employs could explain these transactions including some of the more noteworthy ones such as:

(a) $15,000.00 transfer January 1, 2017

(b) $22,000.00 transfer on March 1, 2017

(d) $17,000.00 Canadian bank draft on August 29th, 2017

(e) $17,000.00 Canadian bank draft on September 6, 2017

(f) $14,000 in cash withdrawals on December 8, 2017

(g) $18,800.00 in cash withdrawals on February 26, 2018

(h) $9,100.00 in cash withdrawals and $8,500.00 in transfers on March 26, 2018

(i) $11,000.00 in cash withdrawals and $6000.00 in transfers on November 26, 2018

(j) $13,800.00 in cash withdrawals on December 21, 2018

(k) $4000.00 cash withdrawal on August 26, 2019 and $2100.00 cash withdrawal on October 28, 2019 and $5000.00 cash withdrawal three days later on October 25, 2019

70By the court’s calculation, there were deductions from the corporate bank account in amounts of at least $1000.00 by way of “cash withdrawal”, “transfer” or “bank draft” or more totaling over $200,000.00 in 2017, over $110,000.00 in 2018, over $70,000.00 in 2019 and over $85,000.00 in 2020. The court heard no evidence as to where these monies went.

The evidence with respect to the cost of the father’s lifestyle

71The father swore financial statements in the course of the litigation on February 26, 2021 and May 25, 2021. Both statements disclosed an annual budget of $54,780.00 not including child support payments. Both disclosed nominal credit card debts of $1950.00 and personal debts of $66,000.00 which are clearly related to the father’s business. [17]

72The father gave evidence that as of the date of trial he has repaid the personal loans listed on his sworn financial statements totalling $60,000.00 such that now he owes a total of $35,000.00 to two individuals.

73The father’s evidence is that he travels to Somalia four to six months a year at a cost of $12,000.00 to $14,000.00 including his flight. This expense is not on either of his sworn financial statements.

74The father gave evidence that he spent $15,000.00 to $20,000.00 in legal fees on this matter. This expense is not on either of the father’s sworn financial statements.

75The father gave evidence that he owns a house in Somalia that he inherited from his father in 2014. He did not disclose this asset or the carrying costs on either of his sworn financial statements.

76The father gave evidence that he sends $400.00 USD per month to his wife in Somalia and $200.00 USD per month to his mother in Somalia. He did not disclose these payments on either of his sworn financial statements.

The cost of the father’s lifestyle

77The father’s evidence is that his income is accurately set out on his income tax return and that there is no basis upon which to impute income to him above that amount. The court disagrees for the following reasons:

(a) The father disclosed an annual budget of $54,780.00 on his sworn financial statements and is clearly meeting his expenses as he shows no real personal debt.

(b) The father’s annual budget of $54,780.00 does not include the following expenses he admits to incurring on a regular basis since the commencement of this litigation:

i) Child support of $1482.00 per month = $17,784.00 a year

ii) $600.00 USD sent to Somalia a month = $7200.00 USD = $9360.00 CDN

iii) Annual vacation to Somalia at a cost of $12,000.00 to $14,000.00 per year.

iv) The father’s rent increased $55.00 per month since swearing his last financial statement resulting in an annual increase in his expenses of $660.00.

v) The father has paid approximately $10,000.00 in legal fees per year the last two years.

The expenses the father admits to incurring but which were not included on his sworn financial statements plus his monthly child support obligation totals $51,800.00 per year.

(c) The father’s witness gave evidence that the corporation pays his personal credit cards, although the amounts are not significant [18], which are used for both business and personal expenses.

(d) The father’s witness gave evidence that the father deducted corporate funds to loan a third party $25,000.00. The witness said this amount is shown on the corporate balance sheet as a shareholder’s loan.

(e) The court received no reliable or reasonable explanation for the tens of thousands of dollars deducted from the corporate bank account each year by way of a transfer, cash withdrawal or Canadian bank draft.

(f) The corporate income statements do not include as business expenses the personal expenses incurred by the father such as his travel and legal fees. Therefore, the evidence does not explain how these expenses are paid as he is not paying himself enough to cover these expenses in addition to the personal expenses disclosed on his sworn financial statements.

(g) The evidence does not make it clear for the court how the company’s pre-tax profits have been utilized.

78By his own evidence the father spent at least $51,804.00 more per year in 2020 and 2021 then disclosed on his two sworn financial statements yet he discloses no corresponding debt to have met these expenses. As the father and his witness gave evidence that the father uses his corporate bank account for his own personal expenses, in the absence of evidence explaining how these personal expenses are paid, it is reasonable to conclude that the father has either been unreasonably deducting personal expenses from his corporate income or he has drawn additional income from corporate pre-tax profits then what is disclosed on his corporate financial records. For this reason, the court will impute income to the father over and above the income disclosed on his personal income tax returns.

Use of corporate profits

79The father’s corporation has always enjoyed a healthy net income before income tax until it purchased a new truck for $230,000.00. This purchase led to a significant reduction of net income on paper as the father’s witness from the accounting firm who prepares his corporate financial statements gave evidence that he can deduct an expense for amortization of the vehicle of 40% per year. [19] That results in a $90,000.00 deduction from gross sales in 2021, a year in which the company enjoyed net income before taxes of $48,032.00.

80The father’s witness gave evidence confirming that the actual gross profit for 2021 could be considered $138,032.00 ($48,032 (net profit) + $90,000 (deduction for amortization of the truck) less the actual cost of the lease of the truck to the corporation which is $50,823.48 = $87,209.00. The witness pointed out that this net profit is before income taxes, payroll deductions and H.S.T.

81As set out above in paragraph 33, the father has the onus of demonstrating that the retained earnings of the corporation are not available for support. His evidence is that there are “huge costs associated with my driving” and other than the cost of the lease of the truck of $4325.00 per month “I must cover all kinds of other costs”. The father’s evidence is that truck maintenance and the cost of paying other drivers “at times drives up costs”.

82The father explains that he leaves retained earnings in the company to ensure that he has funds to pay for repairs, hiring drivers and “potentially replacement of the truck when necessary”. He says if he does not have money in the corporation, he cannot maintain the business.

83The father contradicted himself in his oral evidence when he explained that when he is in Somalia his friend drives his truck for him and earns approximately 32% of what the company is paid for each delivery. He confirmed that while he is in Somalia and his friend is driving his truck, the corporation makes money.

84The father’s claim that he must keep the retained earnings in the company in the event he has to purchase a new truck is questionable given he just purchased a truck which only required a down payment of $21,000.00.

85The father did not provide evidence of where the net pre-tax profits of the company can be found, whether they were spent and if so, how. The corporate balance sheet and financial statements also did not provide evidence of how the profits were invested or utilized. The corporate bank statements also shed no light on this issue.

86Given the lack of an explanation for the tens of thousands of dollars removed from the corporation’s bank account between 2017 and 2020, it is very possible that the father is in fact drawing on the net income of the corporation to meet his needs but that this is not accurately reflected in the corporate financial statements.

87The father’s evidence on the issue of whether he can draw a larger salary by accessing the corporation’s retained earnings or pre-tax profits is inconsistent, confusing and at times contradictory and therefore, not persuasive.

Is the father underemployed?

88It should be noted that the court could find that the father is underemployed as he admits to only working six to eight months a year. For example, the court could find that if the father earns approximately $60,000.00 working six to eight months a year he should be able to earn approximately $90,000.00 to $120,000.00 per year working full time.

Conclusion regarding the father’s income for the purpose of determining his support obligations

89The father admits to incurring $51,800.00 [20] in expenses over and above those disclosed on his sworn financial statements. Some, but not all, of these expenses are paid by his corporation. A review of the corporate bank statements discloses that the corporation is paying the father’s car insurance, living expenses and credit card bills each month in the approximate amount of $18,600.00 per year.

90The father does not explain how he is paying his expenses not covered by the corporation on a salary of $60,000.00. He did not serve and file an updated sworn financial statement for trial that disclosed a reduced budget or provides an explanation for how he funds his lifestyle. To the contrary, he admitted to several expenses not included on his sworn financial statements. As a result, the court is left to draw the conclusion that the father has some other source of income, likely from his corporation.

91The father is either enjoying the benefit of his corporation paying for some of his personal expenses or he is withdrawing funds from the profits earned by the corporation for personal use and possibly not showing the withdrawal on the corporation’s financial records. As a result, the appropriate approach for the court to take in determining his income for support purposes is to impute an annual income to him that captures the true value of the benefits he enjoys from earning an income from a corporation solely within his control and through which he is claiming a deduction for personal expenses. The most reliable way to do that in this case is to make assumptions from the cost of the father’s lifestyle.

92To determine the father’s true income for the purpose of support, the court will impute a gross income to him that allows him to meet his annual budget of approximately $95,000.00 (this amount does not include the legal fees he incurred in the last two years). In other words, the father must net $95,000.00 before his support obligation is calculated as the evidence is that he spends at least $95,000.00 annually.

93Relying on the father’s 2021 income tax return and for all the reasons set out above, the court finds that the father’s income shall be calculated as follows:

(a) $52,174.00 in dividend income he paid himself in 2021 which will be grossed up for income tax not paid due to the favourable tax treatment of dividend income;

(b) $7,826.00 he paid himself in employment income in 2021;

(d) $18,604.00 in expenses unreasonably deducted from corporate income.

Pursuant to the attached Divorcemate calculations, this results in an annual imputed income to the father for the purpose of support of $127,198.00 and generates a gross income net disposable income of $94,700.00 before payment of child and spousal support.

Total income of $127,198.00

94The legal fees incurred by the father and paid to a family lawyer for his representation in this litigation over the last two years is not included in the calculation as this is not a reoccurring expense.

95Therefore, based on the evidence of the father and more specifically his evidence of the cost of his lifestyle, for the purpose of determining the father’s child and spousal support obligation the court imputes income to him of $127,198.00. [21]

Issue #2 - Once the father’s income is determined, what amount of child support is owed by him to the mother from the date of the Application?

96The mother commenced this Application in January 2019. At that time the parties had six dependent children who all resided with the mother. Foosia, although living with her mother, was not in school full time until June 2019 so the mother is not requesting child support for her until that time.

97While it is not disputed that their oldest child, Foosia, is no longer entitled to child support, the parties do not agree when her entitlement to support terminated.

98During the trial it was acknowledged by the parties that the table amount of child support payable pursuant to the Child Support Guidelines is capped at six children. That means a payor pays the same amount of child support for six children as he or she would pay for seven, eight or nine children. The father’s child support obligation in this case is the same for seven children as it is for six children. Therefore, while the parties agree that Foosia is no longer entitled to child support, the court did not have to decide the date upon which Foosia’s entitlement ended as it would not impact the quantum of child support for any period in question.

99As the father resides in Edmonton, Alberta and has done so since the commencement of the litigation, he is obliged to pay child support based on the tables for Alberta. [22] This results in a child support payment of $3576.00 commencing January 1, 2019, and on the first of each month thereafter with credits for amounts already paid based on an annual imputed income of $127,198.00. The mother will be obliged to notify the father and the Family Responsibility Office when each child for whom support is paid is no longer entitled to receive child support from the father.

Issue #3 – What amount of retroactive child support if any, should the father be required to pay the mother for the children for the period of January 2016 to December 2018?

Legal considerations

100In Colucci v. Colucci, 2021 SCC 24, the Supreme Court of Canada updated the legal test to apply when deciding claims for retroactive child support. For the court to determine the date from which child support should be ordered, it must determine from the evidence on what date the mother advised the father that she is requesting an increase in child support from him as he had been paying $1000.00 per month since February 2012. This is the date upon which the mother even merely broached the topic of an increase in child support with him. This is referred to as the ‘effective date of notice’ meaning the date on which the father was notified of the mother’s request for an increase in child support.

101As set out in D.B.S. v. S.R.G., 2006 SCC 37, 2 S.C.R. 231 (D.B.S.), there is a presumptive rule that child support will be ordered retroactive to the date of effective notice provided effective notice did not occur more than three years before formal notice (otherwise known as the date a court proceeding was commenced). This is commonly referred to as the presumptive three year rule. If effective notice occurred more than three years prior to formal notice, the court must embark on a review of the evidence to decide whether to exercise its discretion to depart from the presumptive three year rule and make an order for child support that predates formal notice by more than three years.

The evidence relevant to this issue

102The mother claims that the parties separated in December 2011. She says that the father began giving her $1000.00 in child support for the parties seven children in February 2012 and continued paying the same amount up to and including September 2016 when the family moved to Somalia.

103The mother says that she received no support for Aisha who remained in Canada between October 2016 and December 2017 while the other children were in Somalia.

104When the family moved to Somalia in October 2016 the mother says the father stopped giving her any support. He provided documentary evidence that shows money was transferred to the mother through Taaj Money Transfer between November 2016 and October 2017. She says she never received these monies.

105When the mother brought the children back to Canada in December 2017, she says the father was so angry he refused to pay her any child support. He says that the mother closed the bank account he had been sending the money to previously and did not know where to send her funds for the children. As a result, he paid no child support between January 2018 and June 2019.

On what date did the mother notify the father that she was requesting an increase in child support from him?

106The mother’s evidence is that “All the years from 2012 to 2016 that he paid me $1,000.00 for the children, I did not know his income from his business but I always demanded more for myself and the children and we never received anything more than that monthly allowance.” This is the extent of the mother’s evidence on this issue. The court is unable to find on the evidence that the mother broached the topic of an increase in child support with the father prior to serving her Application and giving formal notice that she expected an increase in child support from him.

107As the mother did not broach the subject of child support or an increase in child support with the father prior to issuing her Application in this court, the effective date of notice and the formal date of notice are the same; January 28, 2019.

108The mother is seeking an order for child support retroactive to January 2016, three years prior to effective notice. The Supreme Court of Canada in Colucci set out the factors the court must consider when deciding whether to depart from the presumptive date of retroactivity as established by D.B.S. They are as follows:

Reason for the delay in bringing the claim;
Conduct of the payor parent;
Circumstances of the child; and,
Hardship that may be caused by a retroactive award.

(a) Reasons for the delay in bringing the Application. Does the mother have an understandable reason for the delay in commencing this Application?

109The mother did not give evidence as to why she did not bring her Application before January 2019. It is clear that she could not proceed between October 2016 and December 2017 as the children (and at times, the mother) were in Somalia. The mother provided no explanation for the delay in bringing her claim to court between January 2018 and January 2019, although this is not a significant delay.

(b) Did the father engage in blameworthy conduct?

110The mother says the father engaged in blameworthy conduct by paying far less child support than he ought to. She had to provide food, shelter, and clothing for herself and seven (at times six) children on $1000.00 of child support. She says the father ought to have known that he was required to pay more than $1000.00 for seven children.

111The father’s evidence on this issue is that he has always supported his children to the best of his ability.

112In 2016, the father’s corporation grossed $308,892.00 and he paid himself $50,000.00 in dividends from his corporation. The corporation earned net income before tax of $61,625.00. The father provided the court with inadequate evidence to explain why he could not draw a greater salary from the corporation and pay the mother more child support in 2016.

113The father’s company continued to enjoy increased pre-tax profits in 2017 of $81,012.00 and $86,887.00 in 2018. Even though his company enjoyed greater success, he paid no child support at all between January 2018 and June 2019. The father’s evidence that the mother closed her bank account and he did not know where to send her money is not reasonable. He ought to have found a way to ensure his children received the child support he was obliged to pay and which the mother needed to provide for them. This amounts to blameworthy conduct on the part of the father.

114The father sends his wife and mother in Somalia a total of approximately $750.00 CDN each month. He is giving his wife and mother the equivalent of 75% of what he was paying in support for six children. He ought to have known that his children come first and that by sending over $700.00 per month to Somalia for his wife and mother he was depriving his children of an appropriate level of child support. In effect, his children were subsidizing the support of his wife and mother. This too amounts to blameworthy conduct on the part of the father.

115The court finds that the father grossly underpaid child support to the mother between 2016 and 2018 and in doing so engaged in blameworthy conduct.

(c) Circumstances of the children

116The mother’s evidence is that the $1000.00 in child support paid by the father did not go far given the cost of providing for herself and seven children. She says the children were “denied so many things ordinary children had growing up. We had to remain in a small apartment when there were 8 of us and there was hardly any breathing space in our apartment.”

117The mother is in receipt of Ontario Disability Support Plan payments of $2560.00 per month. In addition, she receives $2,900.00 per month in child tax benefits for a total net disposable income of $5460.00 per month or $65,520.00 per year. She has subsidized housing which costs $500.00 per month. She has total assets of $11,000.00 and debts of $31,244.51. $7000.00 of her debt is in relation to a vehicle, $18,000.00 of personal loans and $6,244.51 is owed to Global Affairs Canada for the children’s flights from Kenya to Canada in December 2017.

118The mother says the debts she incurred from third parties were to enrol the children in private Islamic school upon their return to Canada as they did not attend school in Somalia and had fallen behind. She says it was therefore necessary to borrow money to enrol them in private school.

119The court received very little evidence of the current circumstances of the children.

(d) Will an order for child support retroactive to January 1, 2016 cause the father hardship?

120The father gave no evidence on this issue and did he did not serve and file an updated sworn financial statement for trial which would have provided important evidence on this issue. As a result, the father has not demonstrated that a retroactive child support award will court will cause him hardship.

Conclusion regarding retroactive child support

121The father had been contributing towards the support of his children since February 2012 by sending the mother $1000.00 per month. He knew he was obliged to contribute towards the support of his children. He never increased his payments. While the mother provided no explanation for the delay in coming before the court, she has demonstrated that the father engaged in blameworthy conduct by paying far less support than he ought to have paid in 2016 and then paying no support between January 2018 and June 2019 a period during which his corporation realized increased profits.

122The mother is requesting retroactive child support for a total of 21 months prior to the commencement of litigation; nine months in 2016 and 12 months between January 2018 and January 2019.

123The father underpaid child support in 2016. He continued to only pay $1000.00 per month while his corporation was enjoying increased sales and gross profit. Between January 2018 and June 2019, he paid no child support. In June 2019 he began paying child support on an income of $50,000.00, a figure far less than his true income. He was providing significantly more per capita support for his wife and mother in Somalia than his six children. The father’s conduct in this regard contributes ample support for a retroactive child support order.

124In all of the circumstances of this case, the court finds that it is appropriate to depart from the three year presumptive rule and order retroactive child support back to a date before effective notice was given by the mother to the father that the support he was paying was inadequate.

Issue #4 - What amount of retroactive child support if any should the father be required to pay the mother for Aisha for the period of October 2016 December 2017 when she remained in Canada while he supported the 6 other children in Somalia

125The evidence on this issue is extremely limited. The mother’s evidence is that Aisha did not travel to Somalia with the rest of the family in October 2016. The court was not told where Aisha stayed in Canada or who supported her. The mother told the court that she left Somalia without the children and returned to Canada at some point because her ticket would expire but she did not say when. Her evidence is that she went back to Somalia a second time and had to return to Canada once again without the children. She did not say when she took this second trip to Somalia and how long she was gone.

126The father gave no evidence on this issue other than to say that he supported the other six children while they lived in Somalia including paying for Foosia to attend medical school.

127The court does not know if Aisha was in the mother’s care during the period in question. The court does not know how many months the mother was in Somalia between October 2016 and December 2017. The court also heard no evidence on who supported Aisha while she remained in Canada.

128The court does not have sufficient evidence upon which it can order the father to pay the mother child support for Aisha for the period of October 2016 to December 2017.

Issue #5 - If an order is made for retroactive child support, on what income should such order be based?

What was the father’s income in 2016?

129The court was not provided with any information about the father’s personal expenses in 2016 from which it could make assumptions about his income from the cost of his lifestyle.

130The father has failed to demonstrate for the court what his income was in 2016. Once again, the court must make a finding with respect to the father’s income based on the evidence before the court. In 2016 the father paid himself $50,000.00 in dividends and therefore enjoyed preferential tax treatment. The court also assumes from the evidence that the father enjoyed the benefit of his corporation paying for some of his personal expenses in 2016 just as it has since the commencement of this litigation. In addition, the corporation earned significant profits in 2016 of $61,625.00 from which he could have paid himself a salary in addition to the dividends.

131For the reasons set out in paragraph 130 above, the court find’s that it is appropriate in all of the circumstances of this case to require the father to pay child support in 2016 based on the same annual income imputed to him for 2019.

What was the father’s income in 2018?

132The father’s corporation had its best year in 2018 earning gross sales of $418,087.00 and net profit of $86,887.00. In 2018 the father paid himself $55,025.00 in dividends.

133The court has already found that from the date of the Application, January 2019, the father will pay child support on an annual imputed income of $127,198.00. As set out above, this was based on assumptions made regarding the father’s use of his corporate bank account, access to corporate income, his failure to explain the large withdrawals from his corporate bank account and his unreasonably deducting personal expenses from corporate income. As the father’s corporation grossed $392,446.00 in 2021, less then it earned in 2018 and the father paid himself more in 2018, it is not unreasonable for the court to impute the same income to the father of $127,198.00 for the year of 2018 for the purpose of determining his support obligations.

Conclusions regarding the father’s income and the quantum of child support owed by him

134The father’s failure to demonstrate for the court what his income is as defined by the Guidelines, results in the court having to sift through the evidence to determine a reasonable income to impute to him. The court has considered the evidence of the parties and their witnesses as well as the documentary evidence and makes the following findings:

(a) The father’s income for the purpose of retroactive child support in 2016 is $127,198.00.

(b) The father’s income for the purpose of retroactive support in 2018 is $127,198.00.

(d) The father will be required to pay retroactive child support for six children (Foosia was in Somalia attending University) for the period of January 1, 2016 to September 1, 2016 the sum of $3493.95 per month based on his imputed annual income of $127,198.00 and the Child Support Guidelines [23].

(e) There will be no child support payable by either party for the period of October 1, 2016 to December 1, 2017.

(f) The father will be required to pay retroactive child support for the six youngest children for the period of January 1, 2018 up to and including December 1, 2018, the sum of $3576.00 per month based on the father’s imputed annual income of $127,198.00 and the Child Support Guidelines [24].

(g) Commencing January 1, 2019 and up to and including April 1, 2020, the father will be required to pay child support to the mother for all seven children the sum of $3576.00 based on the father’s imputed annual income of $127,198.00 and the Child Support Guidelines.

(h) Commencing May 1, 2020 and on the first of each month thereafter, the father will be required to pay child support to the mother for the six youngest children named in paragraph 183 above of $3576.00 per month based on the father’s imputed annual income of $127,198.00 and the Child Support Guidelines.

(i) The mother shall be obliged to notify the father and the Family Responsibility Office if a child is no longer entitled to child support from the father.

(j) Foosia is no longer entitled to child support from either parent.

135The mother asks the court to order the father to pay the cost of the plane tickets for the children to return to Canada from Somalia in December 2017 for which she owes Global Affairs Canada $6,244.51. The court declines to make this order as this is not a section 7 expense for which it can require the father to contribute.

136The mother also asks the court to order the father to reimburse her for the cost of sending the children to private school upon their return from Somalia in December 2017. As this expense was incurred without the father’s consent and the court was provided with no evidence as to the necessity of this expense in relation to the children’s best interests or the reasonableness of the expense in relation to the means of the parties to contribute towards this expense at the time, the court declines to make the order requested by the mother.

Issue #6 - Is the mother entitled to spousal support from the father?

Legal Considerations

137Under Section 30 of the Family Law Act (the Act), every spouse has an obligation to support the other spouse in accordance with need, to the extent that he or she is capable of doing so. This is consistent with the concept of marriage as a partnership. There is a presumption that spouses owe one another a mutual duty of support. [25]

138Subsection 33 (8) of the Act sets out the purposes of spousal support as follows:

Purposes of order for support of spouse

(8) An order for the support of a spouse should,

(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;

(b) share the economic burden of child support equitably;

(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).

139Subsection 33 (9) of the Act sets out considerations for the determination of the amount, if any, and duration of spousal support as follows:

Determination of amount for support of spouses, parents

(9) In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including,

(a) the dependant’s and respondent’s current assets and means;

(b) the assets and means that the dependant and respondent are likely to have in the future;

(d) the respondent’s capacity to provide support;

(e) the dependant’s and respondent’s age and physical and mental health;

(f) the dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;

(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;

(h) any legal obligation of the respondent or dependant to provide support for another person;

(i) the desirability of the dependant or respondent remaining at home to care for a child;

(j) a contribution by the dependant to the realization of the respondent’s career potential;

(k) Repealed: 1997, c. 20, s. 3 (3).

(l) if the dependant is a spouse,

(i) the length of time the dependant and respondent cohabited,

(ii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,

(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,

(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,

(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support,

(v.1) Repealed: 2005, c. 5, s. 27 (12).

(vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and

(m) any other legal right of the dependant to support, other than out of public money.

140There are three types of spousal support orders [26]:

Compensatory support
Contractual support
Non compensatory or needs based support.

141Compensatory support is awarded in cases where a spouse’s education, career development or earning potential have been impeded as a result of the marriage. This occurs when, for example, a spouse withdraws from the workforce, delays entry into the workforce, or otherwise defers pursuing a career or economic independence to provide care for children. [27]

142Contractual support arises out of an agreement between the parties and is not applicable to this case.

143Needs based spousal support arises in a situation where a spouse is unable to become self supporting following the breakdown of the relationship. As a result, the breakdown of the relationship causes the recipient spouse economic hardship requiring financial support from the other spouse.

144In determining need, courts ought to be guided in part by the principle that the spouse receiving support is entitled to maintain the standard of living to which she was accustomed at the time cohabitation ceased. The analysis must consider the recipient’s ability to support herself, in light of her income and reasonable expenses. [28]

145There must be some evidence that the disadvantage to the recipient spouse must arise from the breakdown of the marriage. [29] However, in practice, entitlement will generally be found in cases where there is a significant income disparity at the time of the initial application. [30]

146It is critical for the court to determine all grounds for entitlement, as the basis for entitlement may have a significant impact on quantum and duration of spousal support. [31]

Conclusion regarding entitlement to spousal support

147The parties were involved in a 21 year relationship which produced seven children. The mother provided full time care for the children and did so with little to no help from the father as he has always lived in a different province then the mother and children.

148The mother had no opportunity to pursue her education, a career or any type of employment as all of her time has been dedicating to raising the parties’ children. The mother has been economically disadvantaged due to the relationship and its breakdown. There is no question the mother has an entitlement to compensatory and needs based spousal support.

Issue #7 - If the mother is entitled to spousal support, what amount is payable by the father and from what date?

Start date for spousal support

149In order to determine the start date for an award of spousal support the court must determine the date of separation. The mother says the parties separated in December 2011 and the father says they separated in 2017 when they were “divorced” [32] in Somalia.

150The mother’s Application states that the parties separated in December 2011 shortly before the birth of their last child due to the father’s verbal and emotional abuse. The father’s Answer states that the mother “ordered me to leave the house and not come back. I wished to stay to take care of my children but the applicant did not allow for that.”

151Given the issues with the father’s credibility and the statements made in his Answer, the court prefers the mother’s evidence on this issue and finds that the date of separation is December 2011.

Quantum of prospective spousal support

152The Spousal Support Advisory Guidelines (SSAG) are the presumptive starting point for determining the quantum of a spousal support award. While not binding the SSAG should not be lightly departed from. Any departure requires adequate explanation. [33]

153The Court of Appeal in Fisher v. Fisher, 88 O.R. (ed) 241, stated that the SSAG, while only advisory, are a useful starting point to assess the quantum and duration of spousal support, once entitlement is established. The court wrote at paragraph 103:

In my view, when counsel fully address the Guidelines in argument, and a trial judge decides to award a quantum of support outside the suggested range, appellate review will be assisted by the inclusion of reasons explaining why the Guidelines do not provide an appropriate result. This is no different than a trial court distinguishing a significant authority relied upon by a party.

154The Ontario Court of Appeal in Mason v. Mason, 2016 ONCA 725 set out that if the court is going to apply the SSAG, it must calculate income in accordance with the Child Support Guidelines or provide an explanation for why it is not doing so.

155The court’s calculation of the father’s income as set out in the attached Divorcemate calculations demonstrates that with an imputed annual income of $127,198.00, the mother’s annual income from the Ontario Disability Support Plan with a claw back for spousal support and the father’s obligation to pay child support for six children of $3576.00 per month, the range of spousal support is $252.00 per month at the low end of the SSAG; $491.00 at the mid range; and, $734.00 at the high end of the range.

156The mother’s financial statement sworn for trial discloses a monthly income of $5460.00 not including child support. Her budget of $8,287.00 per month includes $3000.00 per month in groceries, $1000.00 per month in meals outside the home, and $1700.00 per month in “education”. No explanation is provided for the education expense or what might be considered extremely high costs for groceries and meals outside the home.

157The mother enjoys very low housing costs paying $500.00 per month for subsidized housing.

158As noted above, the monthly budget disclosed by the father in his sworn financial statements discloses expenses of $4565.00. His evidence at trial uncovered an additional $3484.00 of monthly expenses for a total budget of $8049.00 including $1482.00 per month in child support.

159Based on the attached Divorcemate calculations an order for spousal support in the amount of $252.00 per month, the low range of the SSAG, will result in the mother having a net disposable income of $9509.00 per month or 69.7% of the family’s net disposable income while the father will have $4142.00 or 30.3% of the family’s net disposable income.

160The court finds that at this time the appropriate spousal support award would be based on the low end of the SSAG because the mother has very low housing costs, the father has a limited ability to pay spousal support in addition to $3576.00 per month in child support and this order will allow the mother to meet her monthly expenses and have a surplus of $1222.00 per month for other expenses she may not have been able to afford in the past including more spacious housing.

161An order requiring the father to pay spousal support to the mother at this time in the amount of $252.00 per month is reasonable and assists the mother in meeting her financial needs and contributes towards alleviating the economic consequences of the breakdown of the relationship that she faces at this time.

Conclusion regarding prospective spousal support

162The father will be required to pay the mother spousal support in the amount of $252.00 per month commencing February 1, 2019 and on the first of each month thereafter.

163As the mother is entitled to compensatory spousal support, she may pursue a greater award of spousal support when the father’s child support obligation is reduced to an amount that creates an ability for him to pay a higher amount of spousal support. [34]

Issue #7 – Is the mother entitled to an award of spousal support retroactive to January 2012?

164The mother gave no evidence explaining her seven year delay in seeking spousal support from the father. Delay does not bar a claim for spousal support provided there is a reason for the delay and events that have transpired since the delay. [35]

165The mother provided no evidence of her income prior to 2018.

166The court received no evidence of the father’s income prior to 2016.

167The father was not cross examined on his income prior to 2016.

168No spousal support calculations were provided by the mother for the period prior to the commencement of the Application.

169Extreme delay in making a claim for spousal support can diminish or defeat an Application. It may raise questions as to whether there was an ongoing reasonable expectation of support, and whether there was actual need on the part of the claimant spouse. The longer the delay, the greater the need to offer a compelling explanation for the delay because of the increasing presumption of financial independence and clean break. It may also affect quantum of support. [36]

170The mother has not met her onus to explain the reason for the delay in seeking spousal support from the father. In addition, the court has insufficient evidence regarding both parties’ means and needs for the period which the mother is seeking retroactive spousal support. For these reasons, the mother’s claim to retroactive spousal support fails.

The evidence on this issue

171At the commencement of trial, the court was advised that the parenting claims made by the mother were not contested but for her request for an order that she can travel with the children without the father’s prior consent. She agrees to provide the father with advanced notice of any travel with the children as well as a detailed itinerary.

172The father opposes an order permitting the children to travel with the mother outside of Canada without his consent as he believes there should be agreement between the parents on whether the children are removed from Canada.

173The mother’s evidence is that the father’s opposition to the children being able to travel with her without his consent is fueled by his controlling behavior towards her. She says the children are Canadian citizens and there is no reason why she would remove them from Canada permanently.

174The mother says that it will be “impossible” for her to obtain the father’s consent to travel should she wish to take the children outside of Canada. She says he spends four to six months a year in Somalia which will increase the difficulty she will have communicating with him to obtain his consent to travel with the children.

175The mother also argues that as the father has not been to Ontario to see the children since 2016 and saw them last in Somalia in 2017, he should not have the right to control their ability to travel with her for the purpose of a vacation. In other words, his level of involvement with the children would not justify an order that would in effect, control the children’s ability to go on vacation outside of Canada. The court agrees.

176The mother has effectively been solely responsible for the upbringing of the parties’ seven children since birth. The father has lived in Alberta their entire lives. The father last saw the children in Somalia in 2017. He has not travelled to Ontario to see them since they returned to Canada from Somalia in December 2017 yet he travels to Somalia every year for four to six months.

177As the father lives in Alberta and spends four to six months a year in Somalia and rarely visits the children, it is unreasonable to expect the mother to have to obtain his permission to travel with the children on vacation outside of Canada in advance of the travel.

Final Orders to go as follows:

178The Applicant shall have sole decision make responsibility for the minor children named in the Application, namely,

(a) Sumaya Abdi, born […], 2008;

(b) Mohamed Abdi, born […], 2008;

(d) Mubeen Abdi, born […], 2009; and

(e) Muawiyah Abdi, born […], 2012

whose primary residence shall be with the Applicant.

179The Respondent shall have parenting time with the minor children named in paragraph 178 above in Ontario on reasonable notice to the Applicant. The Respondent shall not remove the minor children from Ontario without the Applicant’s prior written notarized consent or court order.

180The Applicant shall be permitted to obtain government issued documents/identification for the minor children named in paragraph 178 above without the Respondent’s consent or signature on the applications.

181The children named in paragraph 178 above shall be permitted to travel with the Applicant outside of Canada for the purpose of a vacation without the prior consent of the Respondent. The Applicant shall provide the Respondent with advance notice of her intention to vacation with the children outside of Canada and provide him with an itinerary of the children’s travel.

182Commencing January 1, 2016 and up to and including September 1, 2016, the Respondent shall pay the Applicant child support for the children,

(a) Aisha Abdi, born […], 2001;

(b) Sumaya Abdi, born […], 2008

(b) Mohamed Abdi, born […], 2008

(d) Mubeen Abdi, born […], 2009

(e) Muawiyah Abdi, born […], 2012

the sum of $3,494.00 per month based on the Respondent’s imputed annual income for 2016 of $127,198.00 and the Child Support Guidelines.

183Commencing January 1, 2018 and up to and including December 1, 2018, the Respondent shall pay the Applicant child support for the children,

(a) Aisha Abdi, born […], 2001

(b) Sumaya Abdi, born […], 2008;

(b) Mohamed Abdi, born […], 2008;

(d) Mubeen Abdi, born […], 2009; and

(e) Muawiyah Abdi, born […], 2012

the sum of $3576.00 per month based on the Respondent’s imputed annual income for 2018 of $127,198.00 and the Child Support Guidelines.

184Commencing January 1, 2019 and up to and including April 1, 2020, the Respondent shall pay the Applicant child support for the seven children of the relationship named in the Application of $3576.00 per month based on the Respondent’s imputed annual income of $127,198.00 and the Child Support Guidelines.

185Commencing May 1, 2020 and on the first of each month thereafter, the Respondent shall pay the Applicant child support for the six youngest children named in paragraph 183 above of $3576.00 per month based on the Respondent’s imputed annual income of $127,198.00 and the Child Support Guidelines.

186The Respondent shall receive a credit towards arrears of child support for the period of January 1, 2016 to September 1, 2016 of $9,000.00.

187The Respondent shall receive a credit towards his child support obligation for all amounts paid by him through the Family Responsibility Office from January 2019 to the date of this order.

188The Applicant shall notify the Respondent and the Family Responsibility Office immediately when a child for whom child support is payable is no longer entitled to receive child support and shall cooperate with the Respondent to adjust his child support obligation.

189Commencing February 1, 2019 and on the first of each month thereafter, the Respondent shall pay the Applicant spousal support of $252.00 per month.

190If either party is seeking costs of the Application, they shall serve and file their cost submissions with a Bill of Costs on the other party within 20 days of the date of this endorsement. The cost submissions shall not be more than 5 pages long not including attachments such as an Offer to Settle and a Bill of Costs. The responding party shall have 20 days to serve their response on the requesting party. The responding cost submissions shall not exceed 5 pages not including attachments.

191The parties shall file their cost submissions directly with the trial coordinator.

Released: May 27, 2022 Signed: Justice Melanie Sager

Footnotes:

[1] Nesbitt v. Nesbitt, 2001 MBCA 113, [2001] M.J. No. 291 (C.A.), paras. 19 & 21; Hausmann v. Klukas, 2009 BCCA 32, [2009] B.C.J. No. 121 (C.A.) 32, paras 51-61. [2] Elder v. Dirstein, 2012 ONSC 2852. [3] Liscio v. Avram, 2009 ONSC 43640 [4] Gray v. Rizzi, 2016 ONCA 494, Szitas v. Szitas, 2012 ONSC 1548; Woofenden v. Woofenden, 2018 ONSC 4583. [5] Graham v. Bruto, 2008 ONCA 260 [6] MacKenzie v. Flynn, 2010 CarswellOnt 3450 (Ont. C.J.). [7] Mason v. Mason, 2016 ONCA 725. [8] Drygala v. Pauli, 2002 ONCA 41868, [2002] O.J. No. 3731 (Ont. CA). [9] Bak v. Dobell, 2007 ONCA 304. [10] Aitken v. Aitken [2003] O.J. No. 2780 (SCJ); Jonas v. Jonas [2002] O.J. No. 2117 (SCJ); Price v. Reid, 2013 ONCJ 373 [11] Reyes v. Rollo, 2001 ONSC 28260, [2001] O.J. 5110 (SCJ) at para 62). [12] The Balance sheet prepared by the accounting firm states that $22,000 was paid in dividends in 2019. [13] The Balance sheet prepared by the accounting firm states that $16,000.00 was paid in dividends in 2020. [14] The Balance sheet prepared by the accounting firm states that $16,000.00 was paid in dividends in 2020. [15] Sargalis v. Sargalis, 2019 ONSC 530 (Sup. Ct.), para. 11. [16] Lafazanidis v. Lafazanidis, 2020 ONSC 5496. [17] The debts are described as loan for a semi truck of $40,000, loan for repairs to truck of $20,000 and income taxes owing of $6000.00. [18] The credit card statements were marked as exhibits at the trial. [19] In 2020 and 2021 the corporation claimed an amortization expense of $56,325.00 and $90,120.00 respectively. [20] $41,800.00 if legal fees are not included as that is not a recurring expense. [21] See Divorcemate calculations attached to this judgment for the calculation. [22] See subsection 2(b) of the Child Support Guidelines [23] This figure is based on the 2011 tables for Alberta. [24] This figure is based on the 2017 tables for Alberta. [25] Bracklow v. Bracklow, 1999 SCC 715, [1999] 1 S.C.R 420 para. 20. [26] Bracklow v. Bracklow, 1999 SCC 715, [1999] 1 S.C.R 420 [27] Moge v. Moge, 1992 SCC 25, [1992] 3 S.C.R. 813 and Bracklow v. Bracklow, 1999 SCC 715, [1999] 1 S.C.R 420 [28] Gray v. Gray, 2014 ONCA 659. [29] Lamb v. Watt, 2017 ONSC 5838. [30] Spousal Support Advisory Guidelines: The Revised User’s Guide, April 2016: Professor Carol Rogerson and Professor Rollie Thompson. [31] Cassidy v. McNeil, 2010 ONCA 218 (C.A.), at para. 64. [32] The parties were never legally married. [33] McKinnon v. McKinnon, 2018 ONCA 596, [2018] O.J. No. 3487, at para. 24; Slongo v. Slongo, 2017 ONCA 272, 137 O.R. (3d) 654, at paras. 105-106. [34] See section 38.1(3) of the Family Law Act. [35] Walker v. Greer, 2003 ONSC 64331, [2003] O.J. No. 3396 (SCJ). [36] Karlovic v. Karlovic, 2018 CarswellOnt 11306 (Ont. S.C.J.)

Background of the parties

The history of the litigation

The parties’ positions at trial

The issues for the court to determine

Issue #1 - What is the father’s income for the purpose of determining his child and spousal support obligation?

The law

Credibility of the parties

The mother

The father

The father’s conduct

The father’s evidence

The evidence relevant to the determination of the father’s income for the purpose of child and spousal support

Issues with the father’s evidence regarding his income

The evidence with respect to the cost of the father’s lifestyle

The cost of the father’s lifestyle

Use of corporate profits

Is the father underemployed?

Conclusion regarding the father’s income for the purpose of determining his support obligations

Issue #2 - Once the father’s income is determined, what amount of child support is owed by him to the mother from the date of the Application?

Issue #3 – What amount of retroactive child support if any, should the father be required to pay the mother for the children for the period of January 2016 to December 2018?

Legal considerations

The evidence relevant to this issue

On what date did the mother notify the father that she was requesting an increase in child support from him?

(a) Reasons for the delay in bringing the Application. Does the mother have an understandable reason for the delay in commencing this Application?

(b) Did the father engage in blameworthy conduct?

(c) Circumstances of the children

(d) Will an order for child support retroactive to January 1, 2016 cause the father hardship?

Conclusion regarding retroactive child support

Issue #4 - What amount of retroactive child support if any should the father be required to pay the mother for Aisha for the period of October 2016 December 2017 when she remained in Canada while he supported the 6 other children in Somalia

Issue #5 - If an order is made for retroactive child support, on what income should such order be based?

What was the father’s income in 2016?

What was the father’s income in 2018?

Conclusions regarding the father’s income and the quantum of child support owed by him

Issue #6 - Is the mother entitled to spousal support from the father?

Legal Considerations

Purposes of order for support of spouse

Determination of amount for support of spouses, parents

Conclusion regarding entitlement to spousal support

Issue #7 - If the mother is entitled to spousal support, what amount is payable by the father and from what date?

Start date for spousal support

Quantum of prospective spousal support

Conclusion regarding prospective spousal support

Issue #7 – Is the mother entitled to an award of spousal support retroactive to January 2012?

Issue #8 - Should the mother be able to travel with the children without the father’s prior written consent?

The evidence on this issue

Conclusion regarding the mother’s claim to be able to travel with the children without the father’s prior consent

Final Orders to go as follows:

On consent of the parties:

Not on consent:

Background of the parties

The history of the litigation

The parties’ positions at trial

The issues for the court to determine

Issue #1 - What is the father’s income for the purpose of determining his child and spousal support obligation?

The law

Credibility of the parties

The mother

The father

The father’s conduct

The father’s evidence

The evidence relevant to the determination of the father’s income for the purpose of child and spousal support

Issues with the father’s evidence regarding his income

The evidence with respect to the cost of the father’s lifestyle

The cost of the father’s lifestyle

Use of corporate profits

Is the father underemployed?

Conclusion regarding the father’s income for the purpose of determining his support obligations

Issue #2 - Once the father’s income is determined, what amount of child support is owed by him to the mother from the date of the Application?

Issue #3 – What amount of retroactive child support if any, should the father be required to pay the mother for the children for the period of January 2016 to December 2018?

Legal considerations

The evidence relevant to this issue

On what date did the mother notify the father that she was requesting an increase in child support from him?

(a) Reasons for the delay in bringing the Application. Does the mother have an understandable reason for the delay in commencing this Application?

(b) Did the father engage in blameworthy conduct?

(c) Circumstances of the children

(d) Will an order for child support retroactive to January 1, 2016 cause the father hardship?

Conclusion regarding retroactive child support

Issue #4 - What amount of retroactive child support if any should the father be required to pay the mother for Aisha for the period of October 2016 December 2017 when she remained in Canada while he supported the 6 other children in Somalia

Issue #5 - If an order is made for retroactive child support, on what income should such order be based?

What was the father’s income in 2016?