ONTARIO COURT OF JUSTICE
BETWEEN:
Fatima Zafar Chaudhry Applicant
— AND —
Danish Muhammad Respondent
Before: Justice W. Kapurura
Heard on: November 22, 25 & 26, 2024
Reasons for Judgment released on: December 18, 2024
Counsel: Parveen Malik........................................................................................ counsel for the applicant Olayemi Ayoola.................................................................................. counsel for the respondent
JUSTICE W. KAPURURA:
Part One – Introduction
1This trial was about the following two specific issues:
a. Whether the applicant (the wife) is entitled to spousal support, and
b. Whether the respondent (the husband) has demonstrated a settled intention to treat the wife’s two children, B (13 years old) and M (7 years old), as children of his family. The children both reside primarily with the wife.
2On August 8, 2024, the case management judge, Justice S. Sullivan, referred the above two issues to a focused hearing.
3The wife asks the court for a finding that she is entitled to spousal support. She further seeks a finding that the husband has demonstrated a settled intention to treat the children as children of his family. The matter will be referred to the case management judge for child support calculation if the finding is made. The wife filed an affidavit for her examination-in-chief. She was cross-examined by the husband. She called her father (maternal grandfather) and her friend to testify. The maternal grandfather resides in Pakistan. He participated through video conferencing. The husband cross-examined the wife’s additional witnesses.
4The husband asks the court to dismiss the wife’s claims. He claims that the wife is not entitled to spousal support. He also argues that he has not demonstrated a settled intention to treat the two children as children of his family. He testified and was cross-examined by the wife. He called his aunt to testify on his behalf. She provided an affidavit for her examination-in-chief. The wife cross-examined her.
5At the conclusion of the trial, counsel for the parties requested to provide written closing submissions to the court. The court provided a timeline and ordered all submissions to be served and filed by December 17, 2024. The court received and reviewed the materials.
Part Two – Brief background facts
6The wife is a 40-year-old naturalized Canadian citizen born in Pakistan and landed in Canada as a permanent resident in 2002. Her highest level of education is Grade 11.
7The wife married B’s biological father in Bangladesh in 2004. She sponsored him to Canada, and he arrived in 2009. They separated in 2010 and divorced in 2014. He remains in Canada.
8M’s biological father resides in Pakistan. The wife married him in 2015 in Pakistan. It was an arranged marriage. She did not sponsor him to Canada as he was abusive towards her. They divorced in October 2017.
9The wife did not name B and M’s biological fathers as parties to this proceeding.
10The husband is a 27-year-old citizen of Pakistan. He is now a permanent resident of Canada.
11The parties first met in 2016 when the wife visited her family in Pakistan. They married in Pakistan on November 11, 2018. The husband was residing in Pakistan at the time of marriage. The wife was residing in Canada.
12The wife commenced a spousal sponsorship application for the husband in 2019. It was initially rejected as the visa officer concluded that the marriage was not genuine and had been entered primarily for the purpose of immigration.
13The wife appealed the sponsorship decision. Her appeal was heard by the Immigration Appeal Division (IAD) on April 26, 2021. On June 11, 2021, the IAD released its decision allowing the appeal and approving her sponsorship application.
14The wife traveled with the children to Pakistan in 2019, 2020, and 2021 to visit the husband as he awaited the processing of his sponsorship application.
15The husband arrived in Canada on February 6, 2022, and became a landed immigrant.
16The parties separated on April 12, 2022, two months after the husband’s arrival in Canada. They do not have biological children from their marriage.
17The wife issued her application on October 20, 2023, seeking parenting, spousal support, and child support orders. The husband filed his Answer/Claim dated November 18, 2023, seeking a dismissal of the wife’s claims. He did not seek parenting orders.
18The husband was arrested and charged with one count of assault and one count of sexual assault around the time of separation. His trial date was scheduled for December 9, 2024. His current bail conditions restrict his contact with the wife and the children. 1
Part Three – Settled intention to act as a parent
3.1 – The wife’s position
19The wife testified that the marriage was not easy for her as it was her third marriage. Her family was also concerned about the 13-year age difference between her and the husband.
20The wife deposed that when he proposed, the husband promised to be a good husband and a fatherly figure to the children. Her evidence was that in March 2018 (before the marriage), she traveled to Pakistan and stayed with his family for almost four months. The purpose of the trip was to determine whether he would be a suitable spouse and father to the children. She stated that she decided to marry him after noticing that her children had found a fatherly figure.
21The wife testified that after they got married, she traveled to Pakistan with the children and stayed with the husband for extended periods. Her evidence was that she was in Pakistan from April to June 2019, January to June 2020, and from January to March 2021. She stated that she and the children spent most of their time with him during her visits.
22The wife asserted that when the husband attended a visa interview during the spousal sponsorship process, he stated that he accepted the children as his and undertook that he would be a fatherly figure to them.
23The husband arrived in Canada on February 6, 2022. The wife testified that he was always there for her and the children after he arrived, and they acted like a family. She stated that the family used to do grocery shopping and engage in family activities together.
24The wife provided the following details about the husband’s relationship with the children:
i. They called him ‘daddy’.
ii. He used to drop them off and pick them up from school.
iii. He took them out about two to three times per week.
iv. He always claimed to be a parent to them.
v. She provided his name to the school and the children’s doctor’s office.
vi. He used to remind them how to behave.
vii. He was a good father to them.
25According to the wife, the husband’s attitude towards her and the children changed as soon as he obtained his government-issued documents, including his permanent resident and health cards. She testified that he became hostile and rude towards her. She claimed that he stopped spending time with the family and started depriving the children ‘of fatherly treatment.’
26The wife told the court that the parties’ separation negatively impacted the children. She stated that for about six months, they were unable to concentrate on their school work. Her evidence was that they missed him.
27The wife testified that the husband did cash jobs after he arrived in Canada. She claimed he only provided the family with $500.00 twice for household expenses.
28The maternal grandfather testified that when the wife visited Pakistan, she and the children briefly visited him for about a week. He described seeing the husband treating the children as his own. He stated that the children were friendly, loving, and attached to the husband. They called him ‘daddy.’
29The wife’s friend, Beenish Shehzadi, deposed that she had observed the wife and the children engaging in regular phone calls with the husband before he came to Canada. She testified that after he came to Canada, she observed the following:
i. He played with the children after school hours.
ii. The children called him ‘daddy.’
iii. The children appeared happy in his company.
iv. The entire family, comprising the wife, the husband, and the two children, appeared to live together as a cohesive family unit.
v. The husband engaged in ‘all duties of a biological parent’ and showed a level of care and responsibility towards them that one would expect from a father.
3.2 – The husband’s position
30The husband testified that this was his first marriage. He does not have biological children of his own.
31The husband’s position is that he did not demonstrate any settled intention to treat the children as his own. He accused the wife of seeking to double-dip on child support as she is collecting child support from the older child (B)’s father. He stated that she also visits Pakistan every six months to collect child support from the youngest child(M)’s father.
32The husband testified that he first met the wife in 2016 in Pakistan after she was introduced to him by his aunt, Anam Muhammad.
33According to the husband, the wife repeatedly stated during the immigration sponsorship application process that the children’s biological fathers were meeting their financial needs and that he would not be responsible for their financial needs. He provided the following additional information about his relationship with them:
a. He does not have a relationship with them.
b. He was never named as their parent in any of their documents.
c. There is no bond between them.
d. He did not play the role of a father to them.
34The husband claimed that he had cohabited with his wife for less than five months (including the time she visited him in Pakistan). He stated that the period was brief and insufficient to allow the development of a parent-child relationship. He further claimed that when she visited Pakistan, the wife and the children never spent more than ten consecutive days with him as she had to travel to visit her family and M’s biological father. He claimed that the total number of days they cohabited in Pakistan was less than 150.
35The husband testified that after he came to Canada, the parties cohabited for 70 days in Canada. He claimed that, in total, they cohabited for less than 220 days in their marital life.
36The husband deposed that when he told the wife that he would only be responsible for the financial support of his biological children, it triggered issues in their relationship, leading to separation. He added that she then started threatening to have him deported.
37The husband claimed that after he came to Canada, he did not enjoy one week of peace living with the wife as their cohabitation was characterized by abuse, family violence, manipulation, and harassment perpetrated by her against him.
38The husband testified that the fact that he is not seeking any parenting orders in this litigation is proof that he never had a relationship with the children and does not wish to have a future relationship with them.
39The husband’s aunt, Anam Muhammed (the aunt), lives in Toronto. She stated that she was friends with the wife from 2010 until 2022. She introduced the husband to her. She testified that she had seen the husband interact with the children and had not observed any bonding between them. She stated that the wife is receiving child support for B (from B’s biological father), and travels to Pakistan every six months to collect child support for M (from M’s biological father).
40The aunt testified that when the husband arrived in Canada, she assisted him financially as he was struggling.
3.3 – Legal considerations
41Subsection 1(1) of the Family Law Act (FLA) provides the following definitions of “parent” and “child”:
1 (1) In this Act,
“child” includes a person whom a parent has demonstrated a settled intention to treat as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody.
“parent” includes a person who has demonstrated a settled intention to treat a child as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody.
42Subsection 31(1) of the FLA provides as follows:
Obligation of parent to support child
31 (1) Every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who,
(a) is a minor;
(b) is enrolled in a full-time program of education; or
(c) is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents
43In Chartier v. Chartier, [1999] 1 SCR 242 (para 39), the court set out the following factors regarding a settled intention to treat a child as a child of one’s family:
a. Examine intention. Intention will not only be expressed formally. The court must also infer intention from actions, and take into consideration that even expressed intentions may sometimes change.
b. The actual fact of forming a new family is a key factor in drawing an inference that the step-parent treats the child as a member of his or her family
c. Does child participate in extended family like a biological child would?
d. Whether the person contributes financially to the family (depending on ability to pay)
e. Whether the person disciplines the child
f. Whether the person represents to the child, the family, the world, either explicitly or implicitly that he or she is responsible as a parent to the child.
g. The nature or existence of the child’s relationship with the absent biological parent.
44In Chartier v. Chartier (supra, para 32 and 36), the court stated that spouses are entitled to divorce each other, but not the children who were part of the marriage. The interpretation that will best serve children is one that recognizes that when people act as parents toward them, the children can count on that relationship continuing and that these persons will continue to act as parents toward them. It is clear that the court must address the needs of the child as of the date of the hearing or order. The existence of the parental relationship must however, be determined as of the time the family functioned as a unit.
45After-the-fact denials and withdrawals from the relationship are not determinative of the issue. See Friday v. Friday, 2013 ONSC 1931 (para 31), Toth v. Toth (para 5).
46In Watts v. Watts, 2011 ONCJ 104, Justice R. Spence stated the following:
31Someone in Malcolm’s shoes would want to demonstrate kindness, cordiality, financial support where it is not otherwise available from his new wife, respect and generally a positive interpersonal relationship. In circumstances such as these, where a new stepfather and a child are living together under the same roof, there is a natural inclination to at least try to get along with one another. None of that, however, equates with demonstrating a settled intention to treat the child as a child of that stepfather. .
34I agree with the court in Widdis v. Widdis, supra, and the paper by Professor Rogerson, that “the threshold for a parental status finding must be pegged at a sufficiently high point that it avoids the imposition of obligations and the acquisition of access and custody rights except where the step-parent can be clearly shown to have assumed the role of the natural parent and in substantial substitution for the natural parent’s role”.
47The length of the relationship is an important factor. Oxley v. Oxley, [2003] O.J. No. 5275 (SCJ).
48In McGuire v. Bator (2022), 74 R.F.L. (8th) 255 (Ont. C.A.), the court considered the following factors in assessing settled intention:
The parties did not share a bank account and did not pay for M's expenses from that account;
Bator expected McGuire to pay him back for M's expenses;
Bator did not discipline M and was not involved in M's bedtime routine;
M did not refer to Bator as "dad", but called him by his first name;
Bator introduced M to third parties as McGuire's son, not his son; and
Bator treated M differently from his own children, being far more involved in their day-to-day activities.
3.4 – Analysis
49The court must look at the family dynamics to assess whether the husband has demonstrated a settled intention to treat the children as children of his family. The court must examine the family’s interactions, relationships, and how they functioned before separation.
50The task of assessing the family’s relationships is complicated by the husband’s 3-year stay in Pakistan as he awaited the processing of his immigration sponsorship. The wife resided primarily in Canada during that period. After he arrived in Canada, they only stayed together for two months and separated.
51The husband’s evidence regarding his relationship with the children was not entirely credible. He stated that he had no relationship whatsoever with the children. He was married to the wife. They lived together for several weeks in Pakistan. They also lived together during his two-month stay in Canada. The evidence supports a finding that he had some relationship with the children during his stay in Pakistan and his brief stay with the family in Canada.
52The husband’s aunt was not a credible witness. Most of her evidence was hearsay. She testified that she was opposed to the marriage. Due to her opposition, the husband had not brought the children to her home. She appeared to know much about the husband’s relationship with the children, yet she did not directly observe him interacting with the children. The aunt was fixated on presenting a negative picture of the wife, accusing her of “luring men to pay child support for her children.” The court will give little weight to her evidence.
53The wife’s evidence mainly was on stated intention. She spent much time addressing what the husband promised her before marriage. Justice Sullivan ordered the parties to provide affidavits for their examination-in-chief. The wife provided a 3-page affidavit. A full page of that affidavit was dedicated to the husband’s proposal and events that transpired before marriage, including his promise to be a parent to the children and to be a good husband to the family. As stated in Chartier (supra), the court must also infer intention from actions, and take into consideration that even expressed intentions may sometimes change.
54The court accepts the wife’s evidence that:
a. The husband promised to accept and treat the children as his own before marriage.
b. The husband positively interacted with the children when she visited Pakistan before and after the marriage.
c. The husband was involved in some of the children’s day-to-day activities after he came to Canada. He dropped them off at school and picked them up.
d. The children called him ‘daddy’.
55There were some challenges with respect to the wife’s credibility. The issue of decision-making responsibility was not an issue at this trial. However, it is part of the wife’s claims in this proceeding. Parties seeking parenting orders are required to file a Form 35.1 Affidavit. One of the questions 2 requires a party to answer whether they have been involved in other family court proceedings and to provide details of any orders, including court location, parties, and children involved. In her completed Form 35.1 affidavit, the wife did not answer the question. She never mentioned any existing parenting orders regarding the children in her application materials. When she was questioned by the court at trial regarding the existence of any parenting and support orders regarding the children, she provided the following details:
i. There is an existing parenting order from the Superior Court of Justice (Ontario) regarding B. The order granted her custody of B and child support.
ii. There is an existing parenting order from the Superior Court of Justice (Ontario) regarding M. The order granted her custody of the child.
56The wife did not provide copies of the orders at trial. The existence of parenting orders from the Superior Court of Justice raises the question of whether this court has jurisdiction to address the parenting claims brought by the wife in this proceeding. The biological fathers should also have been named as parties. Section 62 of the Children’s Law Reform Act (CLRA) provides that an application under Part III of the CLRA in respect of a child shall include the child’s parents.
57The wife was not credible with respect to the involvement of the children’s biological fathers in their lives. Initially, she stated that B’s father had never met him. During cross-examination, she changed her testimony and said that B’s father had seen him when he was 3 months old. Her evidence was also that M’s father (who lives in Pakistan) was not involved in her life. However, during cross-examination, she admitted that every time she travels to Pakistan, she takes M to see her biological father.
58The wife provided contradictory evidence about the relationship between the husband and the children. In her trial affidavit, she painted a picture of a loving and affectionate relationship between the husband and the children. In her application, she accused him of not buying gifts for the children on their birthdays. She provided the following additional information in her application:
On various occasions, he verbally abused the children and screamed and yelled at them while picking them up from school. The children used to come home crying. When I asked the children, they said (they)were too scared to say anything. Later, (the) children mustered the courage and told (me) that they didn’t want (him) to pick them up from the school. To date, the children are too scared to talk about the incidents.
59The wife provided contradictory information about the husband’s financial responsibility towards the family. In her application, she accused him of never sharing financial responsibility with the family. However, in the same application, she stated that her separation from him has resulted in financial loss for the children.
60In her application, the wife accused the husband of committing immigration fraud. She stated that he misled her into believing that he was dedicated to the marriage when his sole purpose was to use her to immigrate from Pakistan to Canada. She further stated in her application that she married him “relying on his misrepresentations of true affection and a desire to build a family with (her) in Canada”. In her application, she accused him of providing false testimony to the IAD that he “whole-heartedly embraced his role as the children’s father”.
61The evidence of the wife’s friend, Beenish Shehzadi, was limited to the two-month period that the husband stayed with the family in Canada. She provided general details of her observation of the children in the company of the husband. She testified that she observed the husband picking up and dropping off the children at school. She claimed his interactions with the children were positive. Her evidence was contradicted by some of the wife’s evidence describing a negative relationship between the children and the husband during school pick-ups and drop-offs.
62The maternal grandfather's evidence regarding the husband’s interactions with the children was only limited to the brief periods when they visited his home in Pakistan. His evidence was that the family would only stay for about a week. He did not provide any specifics regarding the relationship, other than describing their relationship as positive.
63The court finds that the husband has not demonstrated a settled intention to treat the children as children of his family for the following reasons:
a. There were no specific details of the nature and form of his interactions with the children in Pakistan and Canada. The wife’s evidence was that he had a positive relationship with them and was involved in their lives. However, the specific details of what that positive relationship and involvement meant were lacking.
b. Although there is no evidence of an active and ongoing relationship between either child and their biological father, there is no evidence suggesting that he filled that role.
c. The wife accused him of committing immigration fraud. She stated that he misrepresented that he wanted to build a family with her.
d. It does not appear that he intended to start a family with the wife and the children.
e. His stay with the family after he relocated to Canada was brief. He was in the home for only two months.
f. His connection and interactions with them after he came to Canada were limited.
g. He never purchased birthday presents for them.
h. He did not provide financially for them.
64The lack of evidence about the following also militates against the wife’s claims. There is no evidence confirming that the husband:
a. Participated in making significant decisions for the children.
b. Participated in parent-teacher meetings.
c. Participated in medical appointments for the children.
d. Participated in any religious, cultural, or community events with the children.
e. Was involved in any extra-curricular activities for the children.
f. Participated in events or activities with extended family members or with friends. Both the husband and the wife have family and friends in Canada.
g. Represented to the children, the family, and the world, either explicitly or implicitly, that he was responsible as a parent to the children.
h. Disciplined the children.
i. Prepared meals for the children.
j. Prepared the children for school.
k. Put the children to bed.
l. Was committed to the family as a unit.
m. Specific details about his connection and interactions with the children, when they visited Pakistan, were not provided.
65As stated above, the court finds that the husband has not demonstrated a settled intention to treat the children as children of his family and will, therefore, dismiss the wife’s claim.
66The court will require the wife to update her Form 35.1 and attach existing parenting and support orders from the Superior Court of Justice, given that the parenting issues are still before the case management judge.
67The wife should strongly consider withdrawing her parenting claims given that:
i. The husband is not seeking a parenting order.
ii. This court has no jurisdiction to deal with the parenting issues.
iii. There are existing parenting orders from the Superior Court of Justice in her favour.
68Should the wife consider bringing parenting claims in the future regarding B and M, she should bring her claims before the Superior Court of Justice. If she intends to pursue her current parenting claims, she will have to transfer the claims to the Superior Court of Justice.
Part Four – Entitlement to spousal support
4.1 – The wife’s position
69The wife testified that she is currently not working due to vision impairment. A medical report dated August 8, 2024, shows that she was diagnosed with inherited optic neuropathy with bitemporal VF defects. She stated that due to vision impairment, she cannot drive and has struggled to secure permanent employment.
70The wife is currently receiving Ontario Disability Support Program (ODSP) benefits. She receives $1,300.00 every month. She has received ODSP benefits since 2017 and has no other source of income.
71The wife testified that she was sending money to the husband in Pakistan to support him before he came to Canada.
72The wife provided the following employment history:
i. In 2003, she worked at Global Down Factory.
ii. From 2004 to 2010, she worked evening shifts at Ali’s No-Frills.
iii. From 2006 to 2013, she worked the morning shift at Richtree Restaurant in Toronto.
iv. In 2016, she worked at Anna’s Housekeeping for six months.
73The wife testified that the husband did cash jobs after he arrived in Canada. She claimed he only provided the family $500.00 twice for household expenses.
74The wife’s notices of assessment show the following line 150 income:
| Year | Line 150 income |
|---|---|
| 2022 | $14,404 |
| 2021 | $13,855 |
| 2020 | $9,435 |
4.2 – The husband’s position
75The husband testified that while he lived in Pakistan, there was no physical relationship or financial contribution from one party to the other.
76The husband claimed he never contributed financially to the family’s upkeep. He stated that before coming to Canada, he was working a menial job in a bakery in Pakistan and could not support anyone.
77The husband argued that the wife is the one who promised to provide for him financially during the immigration sponsorship process.
78The husband stated that after he arrived in Canada, he worked a part-time job as a kitchen helper earning $10.00 per hour, doing 5-hour shifts, 6 days a week. He deposed that most of his earnings paid rent, and he spent the balance on his own needs. He claimed that the parties were financially disconnected.
79The husband argued that the wife’s sexual assault charges against him were an attempt to get him deported. He claimed that she continued to stalk, harass, intimidate, and assault him to provoke and lure him into further criminal charges.
80The husband claimed that the wife was the higher-income earner in the home. He provided his 2022 notice of assessment showing his line 150 annual gross income of $11,928.00. His 2023 notice of assessment shows his line 150 annual gross income of $15,583.00.
4.3 – Legal considerations
81Section 30 of the FLA states that every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.
82Subsection 33 (8) of the FLA sets out the purposes of spousal support as follows:
(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;
(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and
(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).
83Spousal support is not merely a consideration of needs and means. In determining the appropriate amount of spousal support, compensatory and non-compensatory considerations should be taken into account in an effort to equitably alleviate the economic consequences of the breakdown of the relationship. See: Rioux v. Rioux, 2009 ONCA 569, [2009] 97 O.R. (3d) 102 (OCA). Entitlement can be based on compensatory, non-compensatory or contractual grounds. See: Bracklow v. Bracklow, [1999] 1 SCR 420.
84Where compensation is not the basis, a support obligation may arise from the marriage relationship itself when a spouse is unable to become self-sufficient. It can be based on need. Under this model, spousal support will be based on economic hardship resulting from the breakdown of the marriage, but not necessarily the roles assumed during the marriage. See: Bracklow, supra.
85In 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. See: Gray v. Gray, 2014 ONCA 659.
86On its own, a mere disparity of income that would generate an amount under the Spousal Support Advisory Guidelines (SSAG) does not automatically lead to entitlement, although a disparity of income may lead to a finding that there is an economic hardship arising from the breakdown of the marriage. There must be some evidence that the disadvantage to the recipient spouse must arise from the breakdown of the marriage. See: Lamb v. Watt, 2017 ONSC 5838. However, in practice, entitlement will generally be found in cases where there is a significant income disparity at the time of the initial application. See: the SSAG Revised User Guide, Chapter 4.
87A basic principle of spousal support law is that the recipient must make reasonable efforts to become economically self-sufficient. See: Dingle v. Dingle, 2010 ONCJ 731.
88The Court of Appeal in Fisher v. Fisher, 2008 ONCA 11, 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]:
103In 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.
4.4 – Analysis
89The court has considered the purposes of spousal support as provided in the FLA.
90The husband’s position is that the wife is not entitled to spousal support for the following reasons:
a. There was no physical relationship or financial contribution from one party to the other.
b. He never contributed financially to the family’s upkeep.
c. The wife is the one who promised to provide for him financially during the immigration sponsorship process.
91The husband’s evidence that he never made any financial contribution to the family was not credible. In his evidence, he stated that after he arrived in Canada, he worked a part-time job as a kitchen helper earning $10.00 per hour, doing 5-hour shifts, 6 days a week. He deposed that most of his earnings paid rent, and he spent the balance on his own needs. His contribution towards rent, albeit limited, was his financial contribution to the family.
92The husband claimed that “there was no physical relationship”. It is not clear what he meant. However, when the wife visited him in Pakistan, they stayed together for several weeks. When he arrived in Canada, he lived with her for two months.
93The court accepts the wife’s evidence that she traveled to Pakistan to visit the husband from April to June 2019, January to June 2020, and January to March 2021. The IAD decision shows that the parties provided tickets to corroborate these trips.
94The court finds that the wife has established entitlement to some compensatory spousal support. She conferred an economic advantage on the husband through the following:
a. The wife sent a total of about $16,367.00 to the husband by Western Union before his relocation to Canada. She provided proof of the transfers. 3
b. She paid household expenses for the respondent while he was in Pakistan. 4
c. She paid $10,000.00 to an immigration lawyer for the IAD appeal after their spousal sponsorship was initially rejected.
d. She paid $1,300.00 to purchase an air ticket for the husband’s trip to Canada. She stated that he promised to repay her, but he did not honour his promise.
e. She borrowed money to meet the above expenses. He promised to return the amount upon his return to Canada. He did not pay her back.
f. The court finds credible the wife’s evidence that she spent all savings on the husband during the sponsorship process.
g. She primarily paid the household expenses after the husband joined her in Canada.
95The wife’s compensatory entitlement to spousal support is limited for the following reasons:
a. The parties had no biological children. Assuming primary care for children is often the basis for a strong compensatory support claim. See: Moge v. Moge, [1992] 3 S.C.R. 813
b. The court found above that the husband has not demonstrated a settled intention to treat the two children, B and M, as children of his family.
c. The wife’s relationship with the husband did not result in a loss of income or her earning capacity. She testified that she started receiving ODSP benefits in 2017. She is still in receipt of ODSP benefits.
d. The parties were married for about three years and five months. They cohabited for approximately five months. The period of cohabitation was short.
96The court finds that the wife has not established a non-compensatory basis for spousal support for the following reasons:
a. The wife remained the primary income earner during the marriage. The husband worked menial jobs after coming to Canada and only contributed a total of $1,000.00 towards the family expenses. The family was not dependent on his income.
b. The parties were not financially interdependent. The wife controlled her finances. The husband controlled his finances, albeit limited.
c. The wife’s economic disadvantage arising from the breakdown of the relationship is minor. She is still earning what she earned before the marriage.
d. The wife’s standard of living has remained the same after the breakdown of the marriage relationship.
e. Both parties are in the low-income bracket. There is no evidence of income disparity between them.
97Based on the foregoing, the court finds that the wife has established some compensatory entitlement to spousal support, with some limitations as stated above. The court will refer the matter back to the case management judge to determine the amount and duration of spousal support.
Part Five – Conclusion
98A final order shall go on the following terms:
i. The husband has not demonstrated a settled intention to treat the children as children of his family. The wife’s claim is dismissed.
ii. The wife has established some compensatory entitlement to spousal support, with some limitations. The amount and duration of spousal support are being referred to the case management judge.
99The wife shall file an updated Form 35.1 affidavit and shall attach copies of all existing parenting and support orders relating to the children.
100The husband shall file an updated Form 35.1 affidavit and shall attach copies of all existing orders from the criminal court.
101The parties shall, by January 10, 2025, contact the trial coordinator’s office to schedule a case conference date before Justice S. Sullivan to discuss the next steps. The appearance shall be in person. If the parties wish to conference other substantive issues at the next court date, they shall seek directions from the case management judge by way of a Form 14B motion.
102If either party seeks costs, they shall serve and file written submissions by January 6, 2025. The other party will then have until January 13, 2025, to serve and file their written response (not to make their own costs submissions). The submissions shall not exceed 3 pages, not including any bill of costs or offer to settle.
Released: December 18, 2024 Signed: Justice Wiriranai (Wiri) Kapurura
Footnotes
Footnotes
- The husband did not provide his bail conditions at trial. He did not attach a copy of the bail conditions to his Form 35.1 affidavit filed with the court.
- Question number 4
- The court notes that the wife testified that she sent the money to the husband and his family members. She was under no obligation to financially support extended family members.
- The court notes that the wife testified that she paid household expenses for the husband and his family members. She was under no obligation to provide for the extended family members.