Court File and Parties

Court File No.: D55903/12 Date: 2012-07-19

Ontario Court of Justice Toronto North Family Court

Between:

Mulki Ga'al Appearing in person Applicant

- and -

Abdiaziz Asser Appearing in person Respondent

Heard: July 18, 2012

Justice: S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] The applicant (the mother) seeks child support from the respondent (the father). At trial she asked that the father pay the table amount of child support for their four children pursuant to the Ontario Child Support Guidelines (the guidelines), based on an imputed income to him of between $40,000 and $50,000 per annum. The mother asked the court to make child support retroactive to April of 2011. Lastly, she asked that the father be required to contribute to the orthodontic expenses of the children.

[2] The father asked the court to fix his income at $16,000-$17,000 per annum for child support purposes. He asked the court to only order ongoing and not retroactive child support. Lastly, he asked the court to only order him to provide an affordable contribution to the children's orthodontic expenses.

[3] A Somalian interpreter was ordered to assist the father at trial, but was not available at the outset of the trial. The father was asked if he would like the case to be held down, to wait for the interpreter. The father told the court that he preferred to proceed without the interpreter. The father was well-spoken, clearly expressed his evidence and responded appropriately to questions. When the Somalian interpreter arrived during the trial, the father again advised the court that he did not need this assistance.

[4] Only the parties testified at trial.

Part Two – Background

[5] The mother is 42 years old and the father is 53 years old. They were married in 1994 and separated in July of 2008. They are divorced. Parenting and financial issues were not dealt with in the divorce.

[6] The parties have four children who are 16, 14, 11 and 8 years old. The children have lived with the mother since the separation and she has a final custody order from this court.

[7] The mother is employed as a medical laboratory technician and earns about $46,000 per annum.

[8] The father has worked as a taxi driver for the past twenty years. His income is in dispute. He lives alone.

[9] The father paid the mother child support of $400 per month from the time of separation until April of 2011. He has not directly paid the mother any child support since then.

[10] This application was issued on February 3, 2012.

Part Three – The Father's Income

3.1 The Father's Evidence

[11] The father testified that he received a post-secondary degree in Somalia and a graduate degree in agriculture in Germany in 1985. He came to Canada in 1990 and obtained an accounting diploma from Seneca College in 1997.

[12] The father said that he worked in security and manufacturing jobs prior to being married. He has exclusively worked as a taxi driver since he was married in 1994. He has not worked in any of the fields that he studied in school.

[13] The father filed Notices of Assessment setting out his income as follows:

• 2008 - $9,235
• 2009 - $9,735
• 2010 - $9,276
• 2011 - $8,250

[14] The father stated that he worked 6 days per week during the marriage and would usually work 7-8 hours each day. He has never owned his own taxi, and is responsible for paying a weekly rental fee to the owner of the taxi he drives, plus gas expenses. He keeps any monies in excess of his expenses – he does not have to pay any commission to the owner of the taxi.

[15] The father testified that he has only worked part-time since the middle of 2009, because the stress of the separation has meant that there are many days when he does not feel like working. He also claimed that there had been a downturn in the economy that has adversely affected his income.

[16] The father testified that until April of 2011, he would pay, on average, $600 per month for child support - $400 to the mother, and $200 directly to the children.

3.2 The Mother's Evidence

[17] The mother was adamant that the father earns cash income of between $40-50,000 per annum. She testified that the father is an experienced taxi driver who always operated on a cash basis while they lived together. She said that the father would regularly bring home cash of over $1,000 per week. She says that they discussed that he earned income at this level. She described how the father would work 10 hours per day, 6-7 days per week. She said that when the father worked on weekends and there was a special event, he could earn sufficient income to pay their monthly rent.

[18] The mother testified that the family led a comfortable lifestyle when they all lived together. She said that she and the father were able to meet the needs of a family of six. They paid for daycare (subsidized) of $200 per month and were able to enroll the children in extra-curricular activities.

[19] The mother said that the father's records about his income are meaningless as he is a dishonest person and does not record the income that he actually earns.

3.3 The Law

[20] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. Clause 19(1)(a) of the guidelines is perceived as being a test of reasonableness. See: Drygala v. Pauli.

[21] The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322.

[22] The court in Drygala v. Pauli, supra, set out a three-part test to determine whether income should be imputed. The first part of the test is to ask whether the payor is intentionally under-employed or unemployed.

[23] The second part of the test in Drygala v. Pauli, supra, is: "If the payor is intentionally under-employed or unemployed, is this by virtue of his/or her reasonable educational needs, the needs of the child of the marriage or reasonable health needs?"

[24] Once intentional under-employment or unemployment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness.

[25] The third part of the test in Drygala v. Pauli, supra, is: "If there is no reasonable excuse for the payor's under-employment or unemployment, what income should properly be imputed in the circumstances?" The court must have regard to the payor's capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living earned during the parties' relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson.

[26] The self-employed have an inherent obligation to put forward not only adequate, but comprehensive records of income and expenses, from which the recipient can draw conclusions and the amount of child support can be established. See: Meade v. Meade.

3.4 Analysis

[27] There are two separate issues about the father's income. What is he actually earning? And, what is he capable of earning?

[28] I found the mother's evidence about the father's income to be credible. She gave her evidence in a clear, consistent and compelling manner. Her evidence about the income required to support the family's lifestyle during the marriage made sense. I believed her evidence that the father operated in cash and earned a comfortable income.

[29] Conversely, the father's evidence made little sense. He is an experienced taxi driver, well-educated and very intelligent. I doubt that he would continue to work at a job that only paid him $9,000 per annum, when he is capable of earning much more and, based on his evidence, was spending much more.

[30] The father's evidence was internally inconsistent. He claimed that starting in the middle of 2009 he cut his work hours (and income) in half. However, his notices of assessment show little difference in income from the years when he said that he was working on a full-time basis.

[31] The father testified about his monthly budget. It was far in excess of the income he stated he has earned. It made little sense as well that the father would be earning $9,000 per annum, and paying $7,200 per annum (as he claims) in child support. It was interesting that when faced with this mathematical difficultly, the father revealed for the first time the existence of a bank account in the United States. This account had not been previously disclosed to the mother.

[32] The father also failed to provide meaningful documentation of his income and expenses. Any documentation that he provided (such as his statement of business affairs) was self-reported. I agree with the mother that this evidence was highly unreliable.

[33] Simply put, the father's numbers didn't come close to adding up.

[34] The expenses that the father claimed that he has been spending, including $600 per month for support, are consistent with someone earning the income that the mother seeks to impute to him.

[35] The father also did not provide a reasonable explanation for working part-time for the past three years. More work is available to him. He agreed that there was no medical evidence that he was unable to work – he said that there are just days when he "doesn't feel like it."

[36] The father also could not explain why he has not pursued more remunerative employment (working on the assumption that he was only earning $9,000 per annum). He did not have any proof of looking for other work, such as a job-search list. The father is educated and intelligent and would be qualified to work at jobs that pay far in excess of what he claims that he is earning as a taxi driver. He has not applied for jobs in accounting or manufacturing. He has not sought work driving or doing deliveries. He has not applied for minimum-wage jobs. He could only say that he would have to consider these alternatives in the future.

[37] The logical inference from the father's evidence is that he is not seeking other employment because he is earning a comfortable rate of income at his current job.

[38] I find the mother's evidence about the father's income to be the most reliable. I find that the father is earning or is capable of earning at least $40,000 per annum. This income will be imputed to him for support purposes.

Part Four – Retroactive Support

4.1 The Law

[39] The Supreme Court of Canada in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, outlined the factors that a court should take into account in determining retroactive support applications. Briefly, there are four points that the court raised:

1. Reasonable excuse for why support not considered earlier.
2. Conduct of the payor parent.
3. Circumstances of the child.
4. Hardship occasioned by the retroactive order.

[40] Where retroactive support is ordered, the award should generally be retroactive to the date when the recipient gave the payor effective notice of his or her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility (D.B.S. par. 5).

[41] Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done the payor can no longer assume that the status quo is fair (D.B.S. par. 121).

[42] Once the issue is raised, the recipient must still be responsible in moving the discussion forward. If he or she does not, legal action should be contemplated. A prolonged period of inactivity after effective notice may indicate that the payor's reasonable interest in certainty has returned. Thus, even if effective notice has already been given, it will usually be inappropriate to delve too far into the past. (D.B.S. par. 123).

4.2 Delay

[43] The mother's request for retroactive support at trial was modest. She is only asking that the court go back to April of 2011, when the father stopped paying her support. The mother's evidence about why she delayed in applying to court was reasonable. She first went through an intermediary to implore the father to resume his support payments. She said that she then had to weigh whether to apply for support in court. She worried that it would be very difficult to prove the father's real income. When no support was forthcoming, she applied to court in early February of 2012.

4.3 Blameworthy Conduct

[44] The father testified that he stopped paying the mother child support in April of 2011, because he was upset that the mother would have the children ask him for additional money in addition to the support that he was already paying. He did not dispute the mother's evidence about her use of an intermediary to try and convince him to resume payments.

[45] The father's excuse for stopping support is unacceptable. He preferred his own interests to those of the children. His behaviour constitutes blameworthy conduct.

4.4 Circumstances of the Children

[46] The mother testified about how difficult it has been for her to always say no to the children because she does not have enough money. She wasn't able to continue a basketball program for one of the children. She constantly tells the children that she does not have enough money for clothes they want or events that they want to go to. She says that she cannot afford activities for the children during the summer.

[47] The circumstances of the children have been adversely affected by the father's failure to pay appropriate child support.

4.5 Hardship to the Father

[48] A retroactive support award will create economic difficulty for the father. However, he is primarily the author of his own misfortune. If he had acted in good faith and continued to pay support, it seems highly unlikely that the mother would have proceeded to court.

[49] Any hardship to the father can be addressed by establishing an affordable repayment plan. I have kept in mind that, according to him, he has had between $2,000 and $5,000 in a United States bank account over the past few years.

4.6 The Start Date and Credits

[50] It is appropriate to start child support on May 1, 2011. This is the first day of the first month after the father paid his final support cheque to the mother. I find that the mother broached the topic of child support with the father at this time.

[51] The father claimed that he has been paying the children money directly since April of 2011, but could only show documentation that he had bought them two cell phones. I agree with the mother that this expense was unnecessary and the father shouldn't be given credit for this expense in lieu of paying support. I will give the father credit for $400, being the cost he paid for the school trip for one of the children. The other expenses described by the father (such as trips to Canada's Wonderland) are typical access expenses and he will not receive credit for them against his support obligation.

Part Five – Orthodontic Expenses

[52] The mother provided evidence that all four children will require orthodontic work. This work has begun on the oldest child. I find that, with respect to three eldest children, she provided satisfactory evidence that the cost of the treatment was reasonable and necessary in relation to the means of the parties and to the spending pattern of the parties in respect of the children during cohabitation. I was not satisfied that it was necessary that the orthodontic work be done on the eight year old child at this time, particularly given the modest means of the parties. I find that the orthodontic treatment for the oldest three children is a special expense as defined by clause 7(1)(c) of the guidelines.

[53] This order does not preclude the mother from returning to court to seek contribution to the orthodontic expense for the youngest child in the future, with better evidence about the necessity of the treatment.

[54] The total amount of the orthodontic expense for the three children will be $18,000. The mother has insurance coverage that will cover 50% of these expenses.

[55] I find no reason to deviate from the guiding principle in subsection 7(2) of the guidelines that each party should pay their pro-rata share of the special expense, after taking into account any income tax deductions or credits related to the expense (subsection 7(3) of the guidelines). A software analysis shows that the father's pro-rata share of the special expense, after taking into account any income tax deductions or credits related to the expense is $3,288. The mother testified that the orthodontist is willing to accept payment over one year. The father's obligation to pay the special expense will be spread out over one year.

Part Six – Payment of Arrears

[56] The father faces a harsh economic reality. He has four children to support. He is facing child support arrears and expensive orthodontic costs. At the income imputed to him, it will be difficult for him to afford these payments. I will address this difficulty by delaying the payment of his support arrears created by this order for one year. This will coincide with the completion of his obligation to pay for the children's orthodontic costs. However, if the father fails to comply with the support provisions in this order, he will lose this indulgence and the full amount of arrears shall immediately become due and payable.

Part Seven – The Order

[57] A final order shall go on the following terms:

a) Based on an imputed income of $40,000 per annum, the father shall pay the mother the guideline table amount of child support for the four children in the sum of $915 per month, starting on May 1, 2011, for the balance of 2011.

b) The guideline table amount of child support shall change to $926 per month, commencing on January 1, 2012. Support shall be payable on the first day of each and every month.

c) The father shall pay the sum of $274 per month towards the orthodontic expenses of the three eldest children on the first day of each month starting on September 1, 2012. Once the father makes 12 full payments, this obligation will end.

d) Provided that the father is not more than 20 days late in making any of the payments above (starting on August 1, 2012), the father may pay the support arrears created by this order in the sum of $200 per month on the first day of each and every month, starting on October 1, 2013. If the father is more than 20 days late in making the payments above, or the arrears payments, the entire amount of arrears shall immediately become due and payable.

e) The father shall be given credit for $400 of child support paid.

f) Nothing in this order precludes the Family Responsibility Office from collecting arrears from any lottery or prize winnings, or any government source (such as HST or income tax refunds).

g) A support deduction order shall issue.

h) The father shall provide the mother with complete copies of his income tax returns and notices of assessment by June 30th each year, starting in 2013.

[57] The software calculation showing how the father's contribution to the orthodontic expense was calculated is attached to this decision. I suggest that the parties review this calculation with a lawyer to ensure its accuracy. The parties will have 14 days from the date of this order to make any submissions about inaccuracies in the software calculation (such as figures being inputted incorrectly). Any submissions should be in writing, on notice to the other party, and be delivered to the trial coordinator's office. If submissions are made, the other party will then have 10 days to serve and file their written response. If no submissions are received in 14 days court staff should proceed to prepare and issue the order.

Justice S.B. Sherr

Released: July 19, 2012