Toronto (North York) Registry No. D52421/10

DATE: 2012·I·09

CITATION: Tabassum v. Khan, 2012 ONCJ 5

ONTARIO COURT OF JUSTICE

B E T W E E N:

SUMAIRA TABASSUM,

Cynthia Mancia, for the applicant

Applicant,

— AND —

MUHAMMED KHALID ALI KHAN

Acting in person

Respondent.

HEARD: 5 JANUARY 2011

JUSTICE S.B. SHERR:

1: INTRODUCTION

[1] This trial was about the claim by the applicant (the mother) for child support for her three children, ages 13, 11 and 10 from the respondent (the father).

[2] The mother asked the court to impute income to the father in the range of $50,000 to $70,000 per annum and order that he pay the table amount of child support pursuant to the Child Support Guidelines, O. Reg. 391/97, as amended, (the guidelines) starting in January of 2011.

[3] The father is unemployed and claims that he is unable to work at this time. He asks that no child support be ordered.

2: BACKGROUND

[4] The parties were married in Pakistan on May 7, 1997. They are the parents of the three children. The mother is 39 years old. The father is 52 years old.

[5] The family resided together in Pakistan and then in the United Arab Emirates (UAE) until they immigrated to Canada on October 3, 2008. The parties have landed immigrant status in Canada.

[6] The father was working for the Dubai Electricity and Water Authority as an assistant engineer when the parties immigrated to Canada. The parties agreed that the mother and children would remain in Canada, the father would return to the UAE for two to three years to save up money and then reunify with the family in Canada.

[7] The father returned to the UAE and his job at the end of October of 2008.

[8] The mother testified that the father failed to financially support the family once he returned to the UAE. She said that this led to the end of their relationship. The father claimed that he did provide financial support for the family. He did not provide any evidence to support this contention.

[9] The father continued to work in the UAE from 2008 until the end of 2010. He testified that he received permission from his employer to come to Canada to visit his family for three weeks in November of 2010. He had not seen his family since he had returned to the UAE in 2008. Soon after arriving in Canada, the father was charged with threatening death against the mother. The father was held in jail for 19 days until he was released on bail. The parties have remained separate and apart since that time.

[10] The mother issued her application in this court on January 5, 2011.

[11] The father was terminated from his employment in the UAE on January 23, 2011 because he had not returned.

[12] The parenting issues in this case are being dealt with separately. The mother has temporary custody of the children. There is also an order for temporary supervised access for the father. The father has not exercised access to the children since he was arrested.

[13] The mother is on social assistance. The father has not worked since he came to Canada in November of 2010 and has not paid any child support to the mother since (at the very least) his arrival in Canada.

[14] The father was acquitted of the criminal charge against him, after a trial, on September 20, 2011.

[15] Both parties testified at this trial. They called no other witnesses.

3: POSITIONS OF THE PARTIES

[16] The mother testified that the father was steadily employed and earned a good income during their marriage (close to $40,000 per annum, Canadian dollars). She said that he has considerable skills, is quite experienced in the electrical and maintenance area and is capable of finding work — he is just choosing not to do so. She testified that the father has hidden most of his financial affairs from her. She said that he developed a property in the UAE and received rental income from residential and commercial units on this property. She also testified that he owns a residential property and three vacant lots in Pakistan. She felt that these properties could be utilized to generate income. She also testified that the father was involved in various businesses in the UAE. She did not have the details about these businesses.

[17] The father claimed that he has no ability to earn income at this time. He testified that he is involved in considerable litigation in both Pakistan and the UAE over his properties and businesses. He said that his plan is to leave Canada and deal with these court cases. When asked how long this might take, he could not answer the question. He said that the cases have already been going on for several years and could continue for many more. One of the cases involves the residential property that he owns in Pakistan. Members of his family live there. When asked how he intends to support his children, he testified that, if the mother is having difficulty supporting the children, then the children could come and live with him in his property in Pakistan. He said that title to the property is in issue and he needs to be in Pakistan to ensure that he saves this property for his family and that this is more important for his children than the income he could earn from working at this time. He testified that, once the foreign court cases are resolved, he will look for work as a laborer. The father testified that he sold the three lots in Pakistan in 2009 for about $8,000. He stated that he is involved in business disputes with partners in the UAE and that he earns no income from these businesses. He said that he did have a five-year sub-lease for a property in the UAE, but it expired in July of 2011. He initially denied earning income from that property, but later acknowledged earning some rental income. Lastly, the father claimed that he has high blood pressure and this adversely affects his ability to work. He provided no medical evidence in support of this claim.

4: CREDIBILITY

[18] The father was not a credible witness. He was frequently evasive and non-responsive when questioned. His evidence was often contradicted by the documentary evidence. When confronted with inconsistencies in his income tax returns or financial statement, he blamed previous counsel and claimed he just signed what was put in front of him. Despite several clear court orders for financial production, he did not provide meaningful financial disclosure. He was ordered to provide documentary proof of his income and copies of his bank account statements since 2007 — he did not do this. He claimed that the bank would only release one year of his records, but he did not even produce those records. He was ordered to provide a comprehensive job search list. He did not do this. The case was adjourned several times, in large part to give him the opportunity to provide this disclosure. He provided no evidence about the revenues or expenses associated with his rental properties or businesses. He is an intelligent man. It became clear that he did not want to reveal his true financial picture. Where the father’s evidence conflicted with that of the mother’s, I preferred her evidence.

5: THE LAW

[19] Clause 19(1)(a) of the guidelines reads as follows:

19. Imputing income.—(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;

[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 or unemployed. Clause 19(1)(a) of the guidelines is perceived as being a test of reasonableness. See Drygala v. Pauli, 2002 41868, 61 O.R. (3d) 711, 164 O.A.C. 241, 219 D.L.R. (4th) 319, 29 R.F.L. (5th) 293, [2002] O.J. No. 3731, 2002 Cars­well­Ont 3228 (Ont. C.A.).

[21] The court in Drygala v. Pauli sets 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. The court stated that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than they are capable of earning. The court must look at whether the act is voluntary and reasonable.

[22] The onus is on the mother to establish that the father is intentionally unemployed or underemployed. 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, 248 O.A.C. 168, 65 R.F.L. (6th) 17, [2009] O.J. No. 1552, 2009 Cars­well­Ont 2068 (Ont. C.A.). However, in Graham v. Bruto, 2008 ONCA 260, 165 A.C.W.S. (3d) 103, [2008] O.J. No. 1306, 2008 Cars­well­Ont 1906, the court inferred that the failure of the payor to properly disclose would mitigate the obligation of the recipient to provide an evidentiary basis to impute income. That principle is applicable in this case. Absence of a reasonable job search will also usually leave the court with no choice but to find that the payor is intentionally under-employed or unemployed. See Filippetto v. Timpano, 2008 3962, (2008), 164 A.C.W.S. (3d) 303, [2008] O.J. No. 417, 2008 Cars­well­Ont 544 (Ont. S.C.).

[23] The second part of the test in Drygala v. Pauli, supra, is: “If the payor is intentionally under-employed, is this by virtue of his or her reasonable educational needs, the needs of the child of the marriage or reasonable health needs?” Once under-employment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness. In both Cook v. Burton, 2005 1063, 136 A.C.W.S. (3d) 504, [2005] O.J. No. 190, 2005 Cars­well­Ont 178 (Ont. Fam. Ct.), and Stoangi v. Petersen (Johnson), 2006 24124, 150 A.C.W.S. (3d) 171, [2006] O.J. No. 2902, 2006 Cars­well­Ont 4375 (Ont. Fam. Ct.), the courts set out that cogent medical evidence in the form of a detailed medical opinion should be provided by the payor in order to satisfy the court that health needs justify his or her decision not to work.

[24] The third part of the test in Drygala v. Pauli, supra, is: “If there is no reasonable excuse for the payor’s under-employment, 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.

[25] The court will usually draw an adverse inference against a party for his or her failure to comply with their disclosure obligations as provided for in section 21 of the guidelines and impute income. See Smith v. Pellegrini, 2008 46927, 169 A.C.W.S. (3d) 605, [2008] O.J. No. 3616, 2008 Cars­well­Ont 5475 (Ont. S.C.); Maimone v. Maimone, 2009 25981, [2009] O.J. No. 2140, 2009 Cars­well­Ont 2909 (Ont. S.C.).

6: ANALYSIS

[26] The court understands that the father faced difficult circumstances when he came to Canada in November of 2010 and was arrested. He was imprisoned for 19 days and lost his job in the UAE. It is reasonable to expect that there would be a short transitional period where he would not be able to earn employment income. I find that this transitional period should be for about four months and I will not impute employment income to the father prior to April 1, 2011. I also recognize that there would be a further transitional period where the father would earn less income than he has historically earned, since he was remaining in Canada to deal with his criminal charges, and it would be challenging for him to obtain employment in Canada that was equivalent to his employment in the UAE in such a short period of time. However, I find that he should have been earning some income from April to September of 2011, when his criminal matter was eventually resolved.

[27] The father has made virtually no efforts to find work. He admitted that he has not applied for a job in Canada and indicated that he had no intention to do so. He said that he made inquiries about getting his job back in the UAE, but provided no evidence in support of this statement. He has not applied for a job anywhere else.

[28] It appears that the father has no intention of living in Canada. It was clear that his focus is to deal with his outstanding litigation in both Pakistan and the UAE. This, according to him, could take years. He wants to take his children back to Pakistan to live in his home there (a totally unrealistic idea, since he has had little contact with them for over three years). Although he has significant work experience and skills, the father is choosing not to work at this time. I find that he has been intentionally unemployed since April 1, 2011.

[29] The father did not provide the court with a reasonable excuse for being unemployed. He provided no evidence, such as a medical letter, to support his statement that he has health issues that would limit his ability to work, although he was well aware that his capacity to work was in issue in this case.

[30] This leaves the court with the difficult task of deciding what income to impute to the father.

[31] The mother had to base her case on limited pieces of information that she had about the father’s financial affairs. I accept her evidence that the father hid most of his financial affairs from her. The father had the opportunity and the obligation to make that financial picture clear, but chose not to do so. I find that the father has deliberately not disclosed his income history or his other financial interests in an effort to frustrate this process. An adverse inference will be made against him.

[32] The mother provided the following evidence about the father’s income, or ability to generate income:

(a)

His curriculum vitae showing that he had been steadily employed from 1984 to 2010 in senior positions with electricity and water companies in Pakistan and the UAE.

(b)

Documentation showing that he owned a residential property in Pakistan valued in 2007 at $350,000.

(c)

Documentation showing that he owned three lots in Pakistan, valued in 2007 at $41,500.

(d)

Documentation showing that the father subleased a parking lot in the UAE. She testified that the father developed this property and collected rents from three or four residential tenants and from two commercial tenants.

(e)

The father’s bank statement from the Union National Bank in the UAE, for the period from June 1, 2008 until September 17, 2008, that was part of the family’s immigration application. This statement shows salary of about $39,708 Dirhams being deposited into the father’s bank account for this period. The mother filed a currency converter. The salary deposits translate to about $11,176 Canadian, for this three and one-half month period, or about $38,319 per annum.

(f)

This bank statement also shows separate deposits of $33,500 Dirhams during this period ($9,429 Canadian dollars). The mother believes that this was revenue from her husband’s rental properties and businesses.

[33] The father claimed that his salary was only $7,082 Dirhams per month ($1,993 per month Canadian). He claimed that the bank statement reflected an additional annual travel allowance that he would receive from his employer. The deposit is marked as salary, not as a travel allowance. The father provided no documentation to support his claim that this was an annual travel allowance (he could have provided complete banking records, as ordered, that could have proved this) and I do not accept his evidence. I find that the total amount of salary deposits reflected in his bank statement represented his actual salary during this period and that he was earning, at least, $38,319 per annum from his job in the UAE.

[34] The father claimed that the additional deposits (not marked as salary) shown in the bank statement were loans from friends that were transferred to the mother so she could show that she had sufficient assets to immigration authorities, before the family came to Canada. He claimed that these payments were subsequently returned to the friends. I do not accept this explanation. The father provided no proof of these loans. The bank account shows no payments out to the mother’s account, as alleged by the father. He knew this issue was in dispute and could have provided the evidence to support his position. He failed to do this. Lastly, the bank statement shows a deposit of $16,000 Dirhams as late as September 17, 2008 — just two weeks before the parties came to Canada. It is unlikely that the mother still was required to show proof of her assets to immigration authorities at this late stage — her application to come to Canada would have been approved well before then. My impression was that the father was scrambling to come up with explanations when confronted with documentation that contradicted his version of events.

[35] The father initially claimed that his residential property in Pakistan was worthless. He then acknowledged that he was fighting in court to keep the property so that his family could remain there and he could preserve it for his children when he died.

[36] The father provided confusing and contradictory evidence about the property he developed in the UAE. He initially said that he could not legally collect rent from those properties. He changed this story when shown his pleading, where he claimed that he was in trouble in the UAE because his tenants were not paying him rent. His evidence was not credible.

[37] The father did provide documentation that he sold the three vacant lots in Pakistan, as he testified, in 2009.

[38] The father claimed that he was not earning income from his business ventures in the UAE and that he was involved in litigation with business partners. He was evasive when asked to provide details about these businesses.

[39] I accept the mother’s evidence that the father was earning a comfortable income, as well as collecting rent, in the UAE. I accept her evidence that he is presently capable of earning this income level.

[40] The father has an excellent employment history. He has steadily worked in the electrical power industry since 1984, in increasing positions of responsibility, for the military and for private and public companies. He earned a good income. He is also resourceful. He developed a property in the UAE, setting up residential and commercial units. He has invested in real estate in Pakistan. He is involved in other business ventures. He is skilled with his hands. The mother testified that he operated at one time a dry-cleaning business, where he obtained and fixed all of the equipment himself.

[41] I find that the father could have earned, at the very least, a minimum wage income in Canada (rate of $21,300 per annum) from April to December of 2011, but chose not to do so.

[42] The criminal case was resolved in September of 2011. The father has twice travelled overseas since then, but has chosen not to pay any child support. I find that he has the ability to obtain a job or to start a business that will generate income similar to the amounts that he has historically earned.

[43] I also have taken into consideration that the father owns the residential property in Pakistan, but is not collecting any rental income. The father cannot support his extended family at the expense of his children. He has the ability to rent this property and to earn income.

[44] It is very difficult, based on this evidence, to assess what the father is earning, or is capable of earning, from his business ventures and properties. The father would certainly have expenses associated with the revenues that the court has seen have been generated, but he has failed to show what this financial profile is. This court will fix an income of $15,000 per annum of net income that the father is, or is capable of, earning from his properties and other businesses (the additional income).

[45] The father’s income will be assessed at $15,000 per annum for the period from January 1, 2011 until March 31, 2011, based on his additional income.

[46] The father’s income will be assessed at $36,300 per annum for the period from April 1, 2011 until September 30, 2011, being the imputed minimum wage employment income plus the additional income.

[47] Starting on October 1, 2011, the father’s income will be assessed at $53,319 per annum, being imputed employment income of $38,319 plus the additional income.

7: CONCLUSION

[48] An order will go on the following terms:

(a)

The father shall pay the mother the guideline table amount of child support for three children, based on an income of $15,000 per annum, in the sum of $276 per month, for the months of January, February and March of 2011.

(b)

The father shall pay the mother the guideline table amount of child support for three children, based on an income of $36,300 per annum, in the sum of $701 per month, for the months of April, May, June, July, August and September of 2011.

(c)

The father shall pay the mother the guideline table amount of child support for three children, based on an income of $53,319 per annum, in the sum of $1,049 per month, for the months of October, November and December of 2011.

(d)

Starting on January 1, 2012, the father shall pay the mother the guideline table amount of child support for three children, based on an income of $53,319 per annum, in the sum of $1,031 per month.

(e)

The approval by the father as to the form and content of this order is dispensed with.

[49] If the mother seeks costs, she is to serve and file written submissions by January 23, 2012. The father shall have until February 23, 2012 to respond. Submissions should not exceed two pages, not including any bill of costs or offer to settle.

Released: 9 January 2012

Justice Stanley B. Sherr