COURT OF APPEAL FOR ONTARIO

DATE: 20240731 DOCKET: COA-23-CV-0456

Simmons, Thorburn and Favreau JJ.A.

BETWEEN

Ramin Amid Applicant (Appellant)

and

Jacqueline Jones Respondent (Respondent)

Counsel: Elliot Birnboim and Hailey Corrigan, for the appellant Barbara Puckering, for the respondent

Heard: February 13, 2024

On appeal from the order of Justice Lisa Brownstone of the Superior Court of Justice dated March 21, 2023, with reasons reported at 2023 ONSC 1855, and from the costs order, dated April 26, 2023.

REASONS FOR DECISION

OVERVIEW

[1] The appellant, Ramin Amid (“the father”), appeals the trial judge’s child support order imputing income to him, retroactive to the birth of his child, S (“the child”). He claims the trial judge erred in (a) imputing additional income to him based on a “gift” of housing the father received from his brother Babak Amid (“Babak”), and in the quantum of this imputed income; and (b) granting child support retroactive to the date of the child’s birth. He also seeks a reversal of the costs order of the court below.

[2] For the reasons that follow, we see no error in the trial judge’s decision concerning imputed income, or her conclusion that child support was payable retroactive to the child’s birth.

BACKGROUND

[3] The father and the respondent (“the mother”) were in a relationship from 2011 to 2014 or 2015. They never cohabited and were not spouses. Their child was born in 2014. The child has always resided primarily with the mother, but the father has regular parenting time.

[4] The father has been paying child support since the child was approximately one year old. He claimed his annual income ranged from less than $40,000 in 2015 to $127,000 in 2019.

[5] At trial, the mother claimed that income should be imputed to the father in addition to his income as a professor. She asserted that the father was also providing engineering consulting and related services to the family real estate development business and in return, was receiving financial benefits such as free luxury accommodation.

[6] The mother testified that early in their relationship, the father was working for Babak’s companies assisting with the Kingsdale housing development project. She testified that she occasionally attended the work sites to see the father. The trial judge noted that the father’s 2022 LinkedIn page listed him as a structural engineer for Kingsdale since 2008 (although it did not list his teaching positions which he commenced in 2015).

[7] The father disputed the imputation of any additional income. He took the position that his income was readily discernible as he had full-time employment as a professor at Sheridan and Centennial Colleges from which he received a T4 tax form. The father denied that he did any significant work for Babak’s businesses.

[8] The father holds title to millions of dollars’ worth of property. However, he testified that 440 Empress Avenue and various other properties to which he held legal title were purchased by Babak. Babak indicated that he placed properties in the father’s name, and the names of other family members to, in the words of the trial judge, “guard against future economic turbulence.” The father therefore claimed he was a bare trustee for the properties.

[9] Thus, although the father holds the title to millions of dollars of real estate and qualified in 2021 for a $3,100,000 mortgage paid from his bank account in the amount of $10,521 per month, he said the properties were beneficially owned and completely financed by Babak. The father said there was no disparity between his lifestyle and that of the mother.

[10] The trial judge found that the father provided engineering and consulting services to his brother Babak, who principally runs the family real estate development business, and that in return, the father was given free luxury accommodation, prior to and after the child’s birth. The father and his mother lived at 440 Empress Avenue and then moved to 436 Empress Avenue in 2021. The trial judge noted that the father obtained mortgages, including one in the amount of $3,100,000, and that despite several court orders to do so, he failed to provide documentation to show how he was able to obtain these mortgages.

[11] She accordingly imputed income to the father retroactive to the child’s birth in the amount of an additional non-taxable income of $3,000 per month to be grossed up from the child’s birth in 2014 to September 2021 and an additional non-taxable income of $6,500 per month to be grossed up from September 2021 onward.

[12] The father takes the position on appeal that he should only pay child support in accordance with his income of $107,000, that is $955 per month, retroactive for three years prior to the date of trial. On this appeal, the father does not dispute the section 7 expenses analysis except to the extent of a recalculation based on any finding by this court of a different income for the appellant and his proportionate share.

ANALYSIS OF THE TRIAL JUDGE’S REASONS

(a) Imputing Income

[13] An appeal court should only intervene in support awards where there is a material error, a serious misapprehension of the evidence, or an error in law. It is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently: Hickey v. Hickey, [1999] 2 S.C.R. 518, at para. 12.

[14] The trial judge began by correctly setting out the considerations for determining income for the purposes of child support and the imputation of income.

[15] Under s. 31(1) of the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”), parents have an obligation to support their children. Section 33 of the FLA provides the court with jurisdiction to make orders requiring parents to provide support in accordance with the Child Support Guidelines, O. Reg 391/97 (the “Guidelines”). Section 34 of the FLA provides the court with the authority to make various kinds of orders in relation to support.

[16] Income tax returns are a starting point for determining a parent’s annual income, but the court may impute additional income. Section 23 of the Guidelines permits the court to draw an adverse inference against and impute income to a party who fails to comply with their disclosure obligations.

[17] Section 19 of the Guidelines sets out a non-exhaustive list of circumstances under which the court may impute additional income to the payor. These include circumstances in which income has been diverted that would affect the level of child support or where the payor failed to provide legally required income information: ss. 19(1)(d) and (f).

[18] The trial judge appropriately referred to Drygala v. Pauli (2002), 61 O.R. (3d) 711 (C.A.), at para. 44, for the proposition that a court cannot select an arbitrary figure as imputed income. She also cited this court’s decision in Bak v. Dobell, 2007 ONCA 304, 86 O.R. (3d) 196, at para. 36, in which Lang J.A. for the court held that:

When considering whether a circumstance is an appropriate one in which to impute income, 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.

The trial judge noted that gifts are not included in income imputation as a matter of course but may be included in certain circumstances. She imputed income to the father based on “both the adverse inference to be drawn from the repeated non-compliance with court ordered disclosure of centrally important documents, and the gift analysis”.

[19] She found that neither the father nor Babak’s evidence was credible on the issues of the father’s work for the family business and the financial arrangements. There was ample evidence to support her finding.

[20] For example, both the father and Babak’s evidence “fluctuated” when asked how much time the father spent at his family’s company providing engineering consultation services. She found the father’s testimony was not believable that the engineering licensing authority would accept less than one hour per week of work experience at the development project at Kingsdale as equivalent to full-time work, and that it was concerned only with duration of the work, not hours. Nor did she accept the father’s evidence that he took a health and safety course in response to a citation received at one of the job sites but provided no health and safety services.

[21] The trial judge noted that although Babak was in charge of financing and dealing with the lawyers he was unable to obtain the documents ordered to be produced or to assist the father with obtaining them. Babak said that although he “ordered” the mortgages, he was not responsible for what was on the applications. Babak said he could not remember who he was dealing with at the time the mortgages were ordered, and then he said he made a call to a person whose number had changed.

[22] The father said he could not obtain the applications because he had nothing to do with the properties, it was all his brother’s business, and he talked to someone to obtain information but was unsuccessful. Although the father claimed to have no interest in the properties in his name, he told Revenue Canada that he lived in one of them and claimed deductions in respect of a home office at the property.

[23] The trial judge noted that there were several court orders to disclose documents related to the father’s finances but, by the time of trial, the following evidence that was ordered to be produced was not provided: (a) three applications for mortgage financing on properties in the father’s name, namely a Street Capital mortgage for $763,750, a Bank of Nova Scotia mortgage for $1,922,500, and a CIBC mortgage for $3,100,000; and (b) the solicitor’s reporting letters for properties registered in the father’s name, from July 2014 to the time of trial.

[24] This was particularly problematic given that the $3,100,000 CIBC mortgage with a monthly payment of $10,521, had been paid from the father’s personal chequing account since April 2021 and the mortgage approval letter dated February 22, 2021 addressed to the father states that “[b]ased on the information you provided in your recent application, we are pleased to approve you for a [CIBC Line of Credit (PLC) and CIBC Mortgage Loan] for a [total limit] of $3,100,001” (emphasis added).

[25] The trial judge concluded that “proper and genuine efforts were not made to obtain the disclosure that had been repeatedly ordered by the court and that an adverse inference should be drawn against [the father].” She therefore drew an adverse inference against the father for failure to produce the documents in respect of the mortgage applications in his name that he was ordered to produce.

[26] However, the trial judge found the mother to be a “generally credible witness” and she accepted her submission that in addition to the father’s income from teaching, he had provided engineering consulting and other services to his family’s real estate development projects, that he was provided with benefits, in the form of housing, as a result of the provision of these services to the business, and that this was a pattern that was likely to continue in the future.

[27] The trial judge noted that the father’s:

LinkedIn account and Facebook page listed him as a structural engineer for Kingsdale. His LinkedIn page from 2022 listed him as having this position from 2008 forward, with no end date, although it also did not list his teaching positions which he commenced in 2015. The last obvious update to that page had been in 2012.

[28] In light of the above, the trial judge had ample grounds to impute income to the father. The father holds legal title to millions of dollars of property and, although he asserted that he had no beneficial interest in any of these properties, the father was involved with the family business which led his brother to provide him with the benefit of free luxury accommodation. The trial judge also found that the benefit the father was receiving in the form of housing continued for all the years since the child was born (and before), was very likely to continue, and was appropriately viewed as a result of services rendered by the father. Equally significant was the fact that the father had, over the years, been able to obtain close to $6 million in mortgage financing based on financial information contained in mortgage applications that he failed to disclose.

[29] The trial judge therefore imputed to the father an additional non-taxable income of $3,000 per month to be grossed up from 2014 to September 2021, and additional non-taxable income of $6,500 per month to be grossed up from September 2021 onward. She therefore ordered the father to pay $2,045 per month of child support for his child commencing July 1, 2023, and 83% of specified section 7 expenses.

[30] In assessing the amount of income to be imputed, the trial judge did not impute the full amount of the monthly mortgage payment of $10,521 that was being paid from the father’s bank account. According to Babak, he transferred funds to the father every month to pay the mortgage of $10,521. The trial judge stated that she was imputing income “[b]y virtue of both the adverse inference to be drawn from the repeated non-compliance with court ordered disclosure of centrally important documents, and the gift analysis set out above [in her reasons].”

[31] She assessed the value of the ongoing benefit at $6,500 per month from September 2021, when the father started living at 436 Empress Avenue, which was a more expensive property than the property where he used to live, at 440 Empress Avenue. The trial judge also imputed an additional $3,000 per month of non-taxable income to be grossed up from 2014 to September 2021.

[32] The trial judge made an assessment on the best evidence available to her, noting that if the father had complied with the court orders, she would have had reliable information from which she could have made a more exact assessment of the amount of income to be imputed. Having failed to make proper financial disclosure, it does not now lie in his mouth to contest the quantum that is based on the information provided.

[33] For these reasons, we see no reason to interfere in the trial judge’s imputation of income or child support award.

(b) Ordering Support Retroactive to the Child’s Birth

[34] Retroactive awards of child support “cannot simply be regarded as exceptional orders to be made in exceptional circumstances” and “while the propriety of a retroactive award should not be presumed, it will not only be found in rare cases”: D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, at para. 5.

[35] As noted by the trial judge, in considering whether to order retroactive child support, “[u]nreasonable delay by the recipient parent in seeking an increase in support will militate against a retroactive award, while blameworthy conduct by the payor parent will have the opposite effect”: D.B.S., at para. 5.

[36] The trial judge noted that the court must also consider the needs and circumstances of the child, and the hardship to the payor of a retroactive award. She stated that retroactive child support must not amount to a wealth transfer, citing Walsh v. Walsh (2004), 69 O.R. (3d) 577 (C.A.), at para. 16. The trial judge, citing Michel v. Graydon, 2020 SCC 24, [2020] 2 S.C.R. 763, at para. 41, stated, “Child support is, of course, the right of a child and is an obligation that exists regardless of the commencement of any proceedings to enforce it.”

[37] She held that the father had an obligation to support his child from birth and there were periods where he failed to do so.

[38] The trial judge stated that the mother formally sought child support retroactive to the date of the child’s birth in her Answer in July 2016. The without prejudice temporary order of Paisley J. made on the consent of both parties dated April 22, 2020 specifically provides that, “The issue of appropriate child support, Section 7 expenses, retroactive child support, retroactive Section 7 expenses, together with interest and costs, are reserved to a further hearing or motion of this matter.”

[39] The trial judge considered the child’s needs and circumstances and the difficulties in obtaining disclosure that would have allowed a proper support calculation. And she found that it was fair and just to order child support to be paid, commencing from the date of birth of the child.

[40] She noted however, that the father had paid the upfront cost of closed mediation and that the amount of $5,937 remained to be credited to him from the retroactive child support payments otherwise payable. I also note that since the trial, on October 6, 2023, the father has apparently paid retroactive child support in the amount of $68,053.

[41] We see no error in the trial judge’s decision to make the child support order retroactive to the time of the child’s birth.

CONCLUSION

[42] For the above reasons, the appeal is dismissed. The mother is awarded her partial indemnity costs in the amount of $15,000 all inclusive.

“Janet Simmons J.A.”

“Thorburn J.A.”

“L. Favreau J.A.”