Abumatar v. Hamda, 2022 ONSC 3530

CITATION: Abumatar v. Hamda, 2022 ONSC 3530

DIVISIONAL COURT FILE NO.: 954/16

DATE: 2022/06/15

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Emery and Neickarz JJ

BETWEEN:

Arwa Abumatar

Appellant

– and –

Ayad Abou Hamda

Respondent

Chukwuma Chuks Oriuwa, for the Appellant

Ayad Abou Hamda, on his own behalf

HEARD at Hamilton by videoconference: June 10, 2022

H, sachs J. (orally)

1This is an appeal from the decision of Pazaratz J. dated March 24, 2021 (the “Decision”) in which he dealt with a motion to change the final order of McLaren J. dated March 24, 2017. The relevant portions of the final order for the purposes of this appeal can be summarized as follows:

(a) The mother was awarded custody of both children.

(b) The father was ordered to pay child support in the amount of $408.00 per month, based on his income of $28,000.00 as of the date of the order (2017).

(c) The father was ordered to provide the mother with annual income disclosure by June 1^st^ in each year.

2The motion to change was commenced by the Appellant mother in October of 2019. In that motion she sought to vary the child support provisions of the final order, including retroactive support to January 1st, 2018. At the beginning of February 2020, the oldest child went to live with the father. At the hearing of the motion the mother sought to vary the ongoing child support payable to her based on increases in the father’s income. She also sought retroactive support for two children up to February of 2020 and retroactive support for one child from February 2020 to the date of the hearing. The father agreed that he should pay the mother retroactive support as of the date she served her motion to vary. However, he disagreed that he should pay any amount for the period prior to that. According to him, at the mother’s request, he had paid her amounts for the children that far exceeded any amounts that he owed for retroactive support during the disputed period. The father did not contest that he was obligated to pay the mother support for one child at his new income level, but argued that the mother should be ordered to pay him child support for the child in his care, retroactive to February of 2020. For that purpose the father submitted that the motion judge should impute income to the mother of at least $30,000.00 per year.

3The motion judge denied the mother’s request for retroactive support for the period prior to the date she served her motion to vary. In doing so he accepted that the father had made two payments to the mother for the care of the children during that period -$8,455.48 in airline fares so that the children could travel with the mother to visit her parents in Qatar and $6000.00 by way of child support that the father paid the mother in 2018.

4The motion judge also ordered the mother to pay child support for the child in the father’s care, retroactive to the date that she went into the father’s care. The ongoing child support payments were to be set off against the amount of child support owed by the father to the mother for the child that remained with her. The amount that the mother was ordered to pay was based on an imputed income of $30,000.00.

5On this appeal the mother is appealing the motion judge’s refusal to order that the father pay her child support for the period prior to October of 2019 and the motion judge’s decision to order that she was liable to pay child support for the child in the father ‘s care, retroactive to February 2020, based on an imputed income of $30,000.00. There were a number of other issues determined in the Decision that are not the subject of this appeal.

6On the appeal, the mother did not assert that the motion judge made an error of law or an error in principle. Rather, she argued that the conclusions that he came to on the facts as he found them were clearly unreasonable or wrong such that they constituted a palpable and overriding error. The mother also abandoned any request that this court admit fresh evidence on the appeal.

The Retroactive Support Issue

7The decision to award retroactive support is a discretionary one. In order to successfully appeal a discretionary decision, the appellant must demonstrate that the court below made an error in principle or its decision was clearly wrong. The mother submits that the motion judge was clearly wrong when he denied the mother ‘s request for retroactive child support prior to October of 2019 on the basis that the father had made payments to the mother that exceeded the amount owing for such retroactive support.

8The motion judge found that the father had failed to comply with the final order’s requirement that he make annual income disclosure. He also found that this constituted blameworthy conduct. However, he went on to state as follows:

64If that was the end of the story, the mother would likely be entitled to all of the retroactivity she is seeking. But there are additional considerations:

a. After the March 2017 order was made – and while he was still making his $408.00 month payments- at the mother’s request the father purchased airline tickets for the children so that they could accompany her on an annual summer vacation to Qatar. In 2017, 2018 and 2019 he paid a total of $8,455.48. That’s a large amount of money -almost the total of the “underpayment” the mother is seeking for the period January 1, 2018 (her proposed commencement date) to October 2019 (when she served him with her motion).

b. The father’s behaviour in voluntarily paying for these annual vacations is quite the opposite of blameworthy conduct. The mother asked him to pay for something that was of significant benefit to the children; arguably some benefit to her (in that she got to vacation with her children); and of no benefit to himself. It is the opposite of “conduct which privileges the payor parent.”

c. Even if the mother is correct in saying that the father hadn’t produced his annual income tax returns, it is clear that the mother was having ongoing communications with the father about children’s financial issues. And it is clear that she must have had some understanding that the father’s financial situation had improved, to allow him to make these expenditures.

d. On other topics, the mother admits the father advanced certain money for the children, but she says that those expenditures had nothing to do with her. On those topics I agree with her that extra payments she wasn’t involved with shouldn’t affect the child support she is entitled to.

e. But it seems highly unfair for the mother to specifically ask the father for $8455.48 – and then within months of his making the final instalment in 2019, she brought a motion basically asking for the same amount again.

9The mother submitted that, in the absence of a finding of an agreement between the mother and the father that the monies paid for the airline tickets could be credited towards child support, the motion judge was clearly wrong and made a palpable and overriding error in treating the payments as a credit towards child support. She also submitted that the motion judge was clearly wrong when he accepted that the father had paid the funds at the mother’s request. According to the mother, it was the father who wanted the children to go to Qatar.

10As already noted, the mother is not asserting that the motion judge committed an error in principle or an error in law when he gave the father credit for the payments in the absence of an express agreement that they would count towards child support. If she is making that submission, she has provided us with no authority to support the submission. On the contrary, the Appellant conceded that the motion judge had thoroughly canvassed and correctly summarized the leading cases and principles that govern the exercise of the discretion to award retroactive child support.

11Essentially, the mother is alleging that the motion judge was clearly wrong when he found that the airline ticket payments benefited her since it was the father who wanted the children to travel to Qatar annually so that they could maintain their residency status.

12Earlier in his reasons, the motion judge had this to say about the conflict in the evidence about whose idea it was for the children to travel to Qatar:

16Based on the conflicting evidence, it is impossible for me to determine the extent to which the children’s annual trips to Qatar were the mother’s idea or the father’s idea.

a. But the mother certainly knew all about it.

b. She travelled with the children every year. The father derived no personal benefit from this annual arrangement. His payments were entirely to the benefit of the children.

c. The mother specifically asked the father to pay 100% of the cost of the air fare, in addition to his ongoing support order.

d. These were significant amounts, given the family’s finances. It must have been apparent to the mother that the father’s income had increased since the March 2017 order.

e. In retrospect- as on many topics- it would have been wiser for the parties to more specifically address whether the father’s extra payments would be taken into account when his overall child support obligation was calculated (or re-calculated). But they didn’t have that conversation.

f. In the circumstances, given the mother’s active participation in this expenditure by the father, I feel it would be unfair to ignore these good faith and child-focused payments.

13The mother does not dispute any of the factual findings made in the above paragraph of the Decision. Therefore, what she is challenging is the motion judge’s conclusion that it would be unfair to ignore the payments. However, the motion judge had the discretion to come to this conclusion and I reject the submission that it was clearly wrong or that it constituted a palpable and overriding error to do so.

The $6000.00 Payment

14The father’s position was that he paid the $6000.00 payment to the mother in 2018 because he was forced to do so by the mother and her mother. In support of his version of events he produced a letter from his lawyer in Qatar that stated that $6000.00 in Canadian funds was paid as lump sum child support to the mother on September 26, 2018 in Qatar. The mother stated that she never received the money and that the lawyer’s letter was untrue.

15The motion judge had this to say concerning this dispute:

18He said, She said. Lawyer said. All in Qatar. That’s as much “proof” as I was given.

a. Credibility is really hard to determine based on affidavit materials.

b. Neither party proposed taking any additional steps to further test or explore this allegation. Neither proposed an oral hearing, cross-examination, better evidence from the lawyer – or any evidence from the maternal grandmother in Qatar who was alleged by the father to have been involved with the payment.

c. In many family law cases, when someone claimed they paid some money the inevitable response is “Do you have something in writing to prove it?” Even in this case there were other sums – totalling more than $7500.00 – which the father claimed he had paid for the children. But he reluctantly abandoned those claims because he realized he had absolutely no proof of cash payments.

d. But here he offered some fairly significant documentary evidence. He produced the lawyer’s letter to the mother long ago. She has never taken any step to challenge it. She has simply given a blanket denial.

e. I am unable to determine with certainty which of these parties is telling the truth on this issue.

f. There is no evidence of deception by the father on other topics. No suggestion that he has a criminal record or any history of dishonesty. Or that he has otherwise misled this court.

g. In contrast, there is at least one area – her employment – where I find hat the mother has been less than candid. I will discuss this below.

h. The mother does not deny that the parties had ongoing legal issues in Qatar. She does not deny that the author of the letter was in fact the father’s lawyer in Qatar. One would think it would be very risky to fabricate a lawyer’s letter saying a very specific sum was paid to a specific person for a specific purpose. If it was fake, it wouldn’t be hard for the mother to contact her lawyer and demand that the record be set straight.

i. In the circumstances, I find that on a balance of probabilities it is more likely that the father really did make the $6000.00 payment to the mother, as he has stated.

j. But notably, even if this is not the case – given the father’s other contributions- my overall conclusion about retroactivity would remain the same.

16The mother submitted on the appeal that the motion judge’s finding on the $6000.00 issue was clearly wrong. She also asserted that it did not accord with the motion judge’s statement that he was unable to determine “with certainty which of the parties is telling the truth on this issue.” According to the mother, a letter from a lawyer in Qatar cannot count any reliable evidence of a payment of child support.

17The motion judge’s reasons make it clear that that he made the finding he did on this issue because he found the father’s evidence to be more credible than the mother’s. He gave a number of reasons for this finding, which included the letter from the father’s lawyer in Qatar. He attached weight to that evidence and he explained why he did so.

18The motion judge’s findings with respect to credibility and the weight to be attached to evidence are entitled to deference from this court. There is no basis for us to overturn those findings. In saying this, I reject the submission that the motion judge’s decision was inherently contradictory. While he did say he could not decide the issue “with certainty”, he did not have to; he only needed to decide the issue on a balance of probabilities, which is what he did. Certainty is a much higher standard of proof than balance of probabilities.

19Finally, it is important to note the motion judge’s last comment. Even without credit for the $6000.00 payment the motion judge’s decision on retroactivity would not have been any different. As the Decision makes clear, the $6000.00 payment resulted in an overpayment, an overpayment that the motion judge declined to order the mother to repay.

Imputation of Income Issue

20The Appellant submitted that it was a palpable and overriding error for the motion judge to find that the mother could have returned to work in February of 2020 when that was just as the pandemic was beginning and she had colitis, as well as a toddler at home. The motion judge dealt with these submissions, except for the one about the pandemic.

21The reason he did not deal with the pandemic submission is that it was not made to him. The Appellant asserts that the motion judge should have taken judicial notice of the impossibility of obtaining work in the pandemic in spite of the fact that the argument was never put to him. Nor did the mother lead any evidence on the point to show that even if the father was right that there were jobs available in her field, she could not have obtained one during the pandemic. It would be completely inappropriate for this court to reverse the motion judge’s finding with respect to the mother ‘s income on the basis of an argument he did not hear and on which there is no evidence in the record.

22With respect to the mother’s colitis, the motion judge explained why he did not accept that the mother had demonstrated that her condition disabled her from working. Apart from anything else it became clear that, in spite of her condition, she had worked. With respect to the need to care for her toddler, the motion judge noted that the father of her toddler was unemployed and thus available to help care for the child.

23There is no basis for concluding that the motion judge made a palpable and overriding error when he found that the mother should be imputed an income level of $30,000.00 as of February of 2020.

Conclusion

24For these reasons the appeal is dismissed. The Respondent was self-represented on this appeal. He provided us with an invoice in the amount of $3000.00 plus HST from a lawyer whom he retained to prepare his factum. The father is entited to his costs fixed on a partial indemnity basis. Therefore, we direct that the mother pay to the father his costs fixed in the amount of $2000, all inclusive.

H. Sachs J.

I agree _______________________________

Emery J.

I agree _______________________________

Neickarz J.

Released: June 15, 2022

CITATION: Abumatar v. Hamda, 2022 ONSC 3530

DIVISIONAL COURT FILE NO.: 954/16