Court Information

File No.: D54291/11

Date: 2012-04-04

Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1

Parties

Between: Nova Robson, Applicant (mother)

and Jenan Albazi, Respondent (father)

Before: Justice Robert J. Spence

Heard: 30 March 2012

Reasons for Judgment released: 4 April 2012

Counsel:

• Nova Robson, applicant, self-represented
• Jenan Albazi, respondent, self-represented

Nature of the Case

[1] There are two issues in this application. First, mother seeks child support for her nine year-old child, Fatima, retroactive to the date of Fatima's birth. The father is agreeable to paying child support but only from the date of service on him of the mother's application.

[2] Second, the father seeks access to Fatima. The mother is opposed to any access at all.

Background

[3] Both parties were self-represented in this proceeding. Both gave evidence at trial and each had the opportunity to cross-examine the other. Because of the parties' unfamiliarity with court procedures, I assisted both of them by explaining how to give their evidence, as well as asking questions of each of them in an effort to tease out the evidence which I believed would be of assistance to me in making an informed decision.

[4] It appears that the parties met in or about 2000 in, as the father describes it, a strip bar. He said the mother was working in that bar as an exotic dancer. After meeting her, he continued to return to the bar from time to time, where he paid her to give him lap dances. The relationship eventually expanded from a business one, to a more personal one, as the parties began to have sexual relations with each other.

[5] In or about the month of February 2002, the mother became pregnant with Fatima. The parties never cohabited, but they continued to see one another until April or May 2002. Both of them agree that after that date, neither of them ever had any contact with one another again, until after the commencement of this litigation.

[6] According to the mother, in either April or May 2002, she came to the father's shop and took away her personal belongings. At that time, she says she was about three months pregnant. She says that while she did not specifically tell the father that she was pregnant, he ought to have known that this was the case.

[7] She says she then left with her personal belongings, subsequently gave birth to Fatima in December 2002 and then shortly afterwards, she returned to the Philippines with Fatima, where she remained for several months, before later returning to Canada.

[8] In her testimony, mother acknowledged never telling the father that she had borne a child. Nor did she make any attempts to contact the father directly to convey this information to him.[1] When asked why she did nothing until the commencement of this litigation in 2011, she said she was too "depressed".

[9] According to the father, the mother did come to his shop in or about April or May 2002 to remove some personal belongings. She did not tell him she was pregnant nor, father says, was he aware that she was pregnant.

[10] The father continued to live at the same address and work at the same shop where he is currently carrying on business. He says the mother could have found him there if she had wanted to tell him about the birth of their child, and if she had wanted to commence proceedings to claim child support. The mother did not dispute this evidence.

[11] The mother has two other children, a daughter named Lisa who is 17 years old and another daughter named Trinity who is 7 years old. Lisa and Trinity each have different fathers. Mother testified that she is receiving child support from Trinity's father in the amount of $500 per month, but she does not know who Lisa's father is.

[12] Mother has been living with her current boyfriend for about one and one-half years. He has two children of his own, both in their twenties.

[13] Fatima is in grade 4 at St. Margaret Catholic School. Mother said that Fatima had some difficulty in grade one but is now doing much better in school. She testified that Fatima attends school every day and that she is generally a healthy child.

[14] According to mother, it would not be appropriate for father to have access to Fatima until such time as Fatima is able to "handle her vulnerable feelings". However, mother was unable to expand on what she meant by this and why she thought that any contact at all between Fatima and her father might be contrary to Fatima's best interests.

[15] The father married his present wife in August 2008. His wife is currently a supply teacher, but she is hoping to eventually get a job teaching fulltime. Together, they have a two year-old child, John Franco. The family lives with the paternal grandparents in a home owned by the grandparents. They pay no rent to the grandparents, although they purchase food and incur certain other expenditures from time to time.

[16] Father testified that he was very upset over mother not having told him that she had given birth, and that he was the father of their child. He said he very much wishes to have a relationship with Fatima, and he wants Fatima to get to know her two year-old brother John Franco. He recognizes that he cannot jump start into an immediate and normal relationship with Fatima; he knows he will have to start this process very slowly. However, he is adamant that he would have been asking for contact with Fatima right from the outset, had he known that mother had given birth to her.

Discussion of the Child Support Issue

[17] The leading case on retroactive child support is S. (D.B.) v. G. (S.R.), 2006 SCC 37. According to the majority in the D.B.S. case, in deciding whether to order retroactive support and, if so, how much, a court must consider all the relevant circumstances of the case, balancing the payor's interest in having certainty, as against the need for fairness and flexibility. The four primary considerations are:

1. Has the recipient parent supplied a reasonable excuse for the delay in requesting support.

2. Has the payor engaged in blameworthy conduct.

3. What are the past and present circumstances of the child.

4. Would a retroactive award create hardship for the payor, including his children from a second family.

[18] As to the first consideration, the mother in this case said that she was depressed or emotionally fragile and for that reason she did not seek child support prior to the commencement of her application in 2011. The mother was unable to elaborate on what she meant by this or provide any details as to why she might not have been able to start proceedings for a period of nine years. Even if the mother was somewhat emotionally fragile, this, in and of itself, does not constitute a reasonable excuse for her delay in seeking support, particularly in circumstances where she knew where to find the father and it would not have been a complex or difficult matter to serve him with an application. It is noteworthy that when the mother did commence the within application, she managed to do so entirely on her own and without legal counsel.

[19] As to the second consideration, it is difficult to understand how the father could be found to be blameworthy in anything he did – or did not do. In weighing the evidence of both parties, I am unable to conclude on a balance of probabilities that the father even knew that the mother was pregnant, much less that the mother had given birth to their child.[2]

[20] However, if I am mistaken in that regard, the mother's evidence, taken at its highest would lead only to the conclusion that the father may have known that she was pregnant. There was no evidence at all that the father ever knew of the actual birth of Fatima, either as a result of any information from the mother, or from anyone else.[3] On this basis I cannot find that the father engaged in any blameworthy conduct.

[21] As to the third consideration, mother gave no evidence regarding Fatima's circumstances, specifically, whether the child endured financial hardship as a result of not being supported. It may be open for me to conclude, on the overall evidence, that the mother herself was a person of modest financial means; this, combined with the fact that she had a child who was not being supported by a father, possibly suggests that the child may have had a lower standard of living than if she had been receiving child support. However, to a large extent this would be speculation on my part. In any event, putting mother's case at its highest, I would be able to conclude only that Fatima would likely have been better off had she received child support, than not having received it.[4]

[22] The fourth and final consideration is whether the payor would suffer hardship were a retroactive award to be made. As I noted earlier, the father married his present wife in 2008, and he has a two year-old child. This is a family of modest financial means as they live with the paternal grandparents in order to save on accommodation costs. In my view, it would be a hardship if the father were ordered to pay any retroactive support for a child whose existence he was unaware of prior to the commencement of this court proceeding.

[23] For all of these reasons I have concluded that it would be inappropriate to order retroactive support under the four-part test set out in D.B.S. Accordingly, it remains only to decide what the correct amount of child support ought to be on a go-forward basis.

Income Imputation

[24] The father is self-employed and claims to earn only $18,600 per year. He takes this income from his business as a "management salary". However, his income tax return for 2010, which is his last-filed return, provides no detail as to the expenses he has claimed in order to arrive at his net income of $18,600.

[25] At trial, he described his business as something related to auto sales. He has been in this business for about 11 years. According to his recent tax returns, he has always earned less than minimum wage. He testified that he is hoping to eventually get a job at a General Motors dealership.

[26] Subsection 19(1) of the Child Support Guidelines states [my emphasis]:

Imputing Income

[27] 19. (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

a. the parent or 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 parent or spouse;

b. the parent or spouse is exempt from paying federal or provincial income tax;

c. the parent or spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

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

e. the parent's or spouse's property is not reasonably utilized to generate income;

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; and

i. the parent or spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust. O. Reg. 391/97, s. 19 (1) ; O. Reg. 446/01, s. 6.

[28] It is important to note that the factors set out in clauses 19(1)(a) to (i) of the Guidelines are not exhaustive, and the court is at liberty to take into account any circumstance that it considers relevant. The thrust of subsection 19(1) of the Guidelines is to provide a framework to guide the court in examining the reasonableness of the income claimed by the payor. And in determining reasonableness, the court will be guided by the various considerations set out in that subsection, as well as any other relevant consideration. See Lawson v. Lawson, at paragraph 36.

[29] On all the evidence, I have concluded that it is fair and reasonable to impute not less than a minimum wage income to father, namely, $21,300 per year. I do so for the following reasons.

[30] First, the father provided no evidence that he is incapable of earning at least minimum wage. He has been in the same business for 11 years and, at some point, it must have dawned on him that it was time to move on to another career opportunity, particularly given his self-declared low level of income. In the case of Evans v. Gravely, the court stated, at paragraph 10:

While I do not fault [the father] for trying to make his business work, a parent cannot pursue an improvident career path at the expense of a child.

[31] It would be one thing if the father had just started out in his business and required some more time before his business realized its full income-producing potential; but it is another thing entirely to remain at a business, for 11 years, when that business provides an income which is so low that it does not even meet the level of the minimum wage in Ontario.

[32] The father is a self-employed person and, as such, he has the burden of fully disclosing all the evidence in support of both his gross business income, as well as his net business income. It is insufficient to simply file a tax return stating what these bottom-line numbers are, for Canada Revenue Agency purposes. The court must be able to scrutinize the details which give rise to those numbers, so that it can decide whether the numbers claimed are an accurate representation of the facts.

[33] In Whelen v. O'Connor, the court stated, at paragraph 13 [my emphasis]:

As a self-employed person, she has the onus of demonstrating clearly the basis of her gross and net professional income. This would include substantiating her patient load and hours worked, and providing particulars of both. It would also include demonstrating that the deductions claimed from gross income should reasonably be taken into account in the determination of income for child support purposes. See Snow v. Wilcox, 1999 NSCA 163 and Rasmussen v. MacDonald, [1997] S.J. No. 667 (Sask. Ct. Q.B.). In my view, she has not met this onus.

No such disclosure was provided by the father in this case.

[34] Furthermore, while the father's earlier-filed financial statement states that father pays $500 per month in rent, he testified that he and his present family live with his parents and they pay no rent at all to his parents. Accordingly, the father is relieved of what might otherwise be a very significant expense that most support payors would have to incur.

[35] For all of these reasons, I have concluded that the claimed income of $18,600 per year is too low for child support purposes, and I impute income to him in the amount of $21,300 per year.

[36] The table amount of support according to the Guidelines, at this level of income, is $171 per month. The father will pay this amount to the mother, for the support of Fatima, commencing the first day of the month following the issuance of the within application, namely, July 1, 2011.

Access to Fatima

[37] For the reasons I outlined earlier, I have concluded that the father was entirely unaware of the existence of his daughter until the mother served the father with the current application. The father now finds himself in a position where he is suddenly the father of a nine year-old child who he has never seen, a child who he claims he wants to get to know and to whom he wishes to act as a parent.

[38] The mother is very much opposed to any involvement by the father in the life of Fatima. She believes that Fatima would be too vulnerable, too emotionally distraught to be faced with the challenge of having this person suddenly injected into her life. On the other hand, the father is not proposing that he jump in with both feet. He wants to start very slowly and to give Fatima the opportunity to get to know him, and to at least consider whether she wishes to pursue a father-child relationship.

[39] Had this been the case of a father who knew of the existence of his daughter and who had simply refused to see her for nine years, and then changed his mind, I might well have concluded that nine years is too large a gap for that father to attempt to bridge. But here, the father has never been given any opportunity whatsoever to establish a relationship with his daughter. And of greater importance to this court, the child herself has never been given any opportunity to know her father. It is unknown to the court whether Fatima is even aware that her father exists or that he has an expressed desire to see her, and be a parent to her.

[40] It is trite law to state that decisions such as this must be made in the best interests of the child. In part, the determination of this issue will depend on what Fatima's wishes are. She is old enough that her voice ought to be heard by the court. And any integration by the father into Fatima's life must be handled with care, sensitivity and the utmost caution. For all of these reasons I have decided that it is necessary to appoint the Office of the Children's Lawyer (OCL) to investigate and report to the court.

[41] I strongly urge the OCL to become involved in this case as soon as possible. In the absence of a very persuasive reason to avoid contact altogether between Fatima and her father, I would see the role of the OCL as one of facilitator in establishing a controlled introduction between the father and Fatima.

[42] Accordingly, I will not make a final order respecting access. Instead, I would order only that the OCL investigate and report back to the court. And for the purpose of permitting the OCL to fully investigate, I will make an interim order that the father have whatever access to Fatima that the OCL deems necessary to fully investigate this issue.

[43] The matter is returning before me on April 23, 2012 and, at that time, I will direct both parties to complete their OCL intake forms, with the assistance of duty counsel. However, I am mindful of the possibility that the mother may be reluctant to complete her intake form. Nevertheless, even if that does occur, I would ask the OCL to begin its investigation with or without her intake form. That issue aside, both parents may need some assistance in completing the intake form and I would again ask the OCL for some indulgence regarding the completion and submission of that form, given that the parents are self-represented.

Conclusion

[44] I make the following order:

1. Father shall pay mother the sum $171 per month, for one child, beginning July 1, 2011, being the table amount of support on an imputed income of $21,300 per year.

2. Commencing in 2013, and no later than June 1st each year, the father shall provide the mother with annual financial disclosure, including his prior year's income tax return and Notice of Assessment and re-assessment from Canada Revenue Agency, for so long as he is required to make child support payments to the mother.

3. The Office of the Children's Lawyer is appointed to investigate and report to the court on the issue of father's access to Fatima.

4. Pending further order of the court, the father shall have no access to Fatima other than such access as the Office of the Children's Lawyer deems necessary in order to permit it to fully investigate the issue of access.

[45] This matter shall return to court on April 23, 2012 @ 10:00 a.m. for a case conference, at which time the court will direct the parties to complete the OCL intake forms, likely with the assistance of duty counsel.

Justice Robert J. Spence

April 4, 2012

Footnotes

[1] Although she said she thinks some of her friends may have conveyed this information to father, evidence which is inadmissible, as none of these friends were identified, or themselves gave evidence, or were available for cross-examination.

[2] Mother testified she was only three months pregnant when she saw the father for the last time. In my view, it is open for this court to take judicial notice that, at the three-month stage of pregnancy, it would be difficult, if not impossible, for someone to conclude with any certainty that a woman is pregnant.

[3] See footnote 1 above.

[4] Something which would apply to almost every case where children are entitled to receive support from a non-custodial parent.