COURT FILE No.: Brampton 1926/11

DATE: 2012·08·07

Citation: Mohammed v. Sahi, 2012 ONCJ 515

ONTARIO COURT OF JUSTICE

BETWEEN:

NAZIA MOHAMMED

Applicant

— AND —

MUHAMMAD ASIF SAHI

Respondent

Before Justice S.R. Clark

Motion for Child Support and s.7 Expenses

Heard on July 26, 2012

Ruling released on August 7, 2012

Ms. Roma Mungol .................................................................................................. for the applicant

Muhammad Asif Sahi …………………………………………………………………..on his own behalf

CLARK, J.:

1:0 INTRODUCTION

[1] The Applicant mother brings a motion dated July 5, 2012, seeking an order for the following:

1. That the father pay child support on behalf of the three children, Zunaira, born […], 1999, almost 13; Nida, born […], 2001, almost 11; and Iman, born […], 2007, aged 5, in the amount of $718.36 per month calculated on an imputed gross annual income of $36,960.00, retroactive to June 1, 2011.

2. That he contribute toward s.7 expenses for child care and recreational activities in proportion to his income.

3. That he pay costs on a full indemnity basis.

[2] The father, a taxi driver, acknowledges his legal responsibility to pay child support, however, he submits that this should be based on his current financial disclosure showing annual income of $12,726.00. He is not prepared to pay a share of the special expenses because the activities the children are involved in are, in his view, frivolous and unnecessary. He is also asking the Court to terminate the restraining order made against him.

[3] The mother is asking the Court to impute a much higher income to him, on the basis that he is intentionally under-employed, or alternatively, that he has not accurately reported his true income, and that his business expenses are inflated or otherwise inaccurate.

[4] Furthermore, she does not consent to a termination of the restraining order, as she believes this is what is preventing him from leaving Canada with the children.

[5] The parties have asked the Court to make a final ruling on these issues. All other matters regarding custody, access, non-removal and travel have been determined.

2:0 HISTORY OF PROCEEDINGS

[6] The mother commenced an Application on November 25, 2011.

[7] A temporary order was made by Pawagi, J. as a result of an ex-parte motion brought by the mother on this same date, granting custody of the children to her, as well as a non-removal and a restraining order against the father and his two brothers.

[8] A final order was made by Clark, J. on March 2, 2012, on the following issues:

1. Sole custody of the children to the mother.

2. She is at liberty to apply for and obtain travel documents, including passports, for them without the consent or approval of the father.

[9] A temporary order was made this same day setting out the following:

1. Access by the father at a supervised access centre.

2. He was to serve and file financial disclosure on or before April 20, 2012.

3. The original restraining order was terminated and replaced by a new one, that he not to come within 300 metres of the mother’s residence or the children’s schools.

[10] On May 9, 2012, a final order was made by Clark, J., as follows:

1. The father shall have no access to the children.

2. The restraining order against the father’s two brothers is terminated.

[11] A temporary order was also made on this same day including the following terms:

1. The father is to pay child support in the amount of $441.00 per month on imputed annual income of $21,000.00 commencing May 1, 2012 for the three children.

2. The mother is to serve and file a statement of child care expenses and an affidavit from her sister-in-law confirming the child care arrangement and total monies received. These materials are to be served and filed on or before June 30, 2012.

3. The mother is granted leave to bring a motion for child support and a contribution for s.7 expenses.

3:0 THE POSITIONS OF THE PARTIES

3:1 The Mother

[12] The parties married on November 8, 1998. This was an arranged marriage. The father was originally from Pakistan. She sponsored him to come to Canada. The marriage was fraught with domestic violence. He became more controlling. He wanted the children to be raised under Sharia law. He blamed her for the breakdown of the marriage due to the Canadian influence which he felt she had embraced. She asked him to leave the matrimonial home. He went to live with one of his brothers in June, 2011. He began to threaten her with violence. He also threatened to kidnap the children and take them to Pakistan to live so that they could be brought up in the Islamic culture. She then vacated the matrimonial home in Toronto and moved to Mississauga near her parents and siblings, because she feared for the safety of herself and the children. She presently resides in an apartment with them.

[13] Her income is insufficient to enable her to provide solely for all of the children’s financial needs on an ongoing basis. In addition to providing for their daily living expenses, she also pays for their activities, religious studies and entertainment.

[14] The children are currently registered at the Y.M.C.A. in Mississauga. They are enrolled in swimming classes, Tae Kwon Do, basketball and gym. Prior to separating, the father refused to allow the children to take part in activities after school and only permitted them to be involved in religious activities, because they are girls. After separation, she registered them at this facility. She pays a subsidized fee of $53.00 per month for all three children. If not subsidized, she would be required to pay $150.00 per month.

[15] The two younger children attend the Mosque five days a week for religious studies. Her sister-in-law, Kalsoom Begum Mohammed (who is also the “babysitter”) takes them to the Mosque at 6:00 p.m. The mother picks them up after work at 7:00 p.m. She pays $50.00 per month for religious studies for the children. She has provided a receipt for same. Prior to separation, the father would take the children to school and to religious studies. Once they separated, however, she was required to make all the necessary arrangements in this regard.

[16] She pays $1,100.00 per month for child care expenses. She provided babysitting receipts from July 4, 2011 to June 4, 2012. She acknowledges that the oldest child would not ordinarily require the assistance of a babysitter, however, because of her fear of the children being abducted by the father, she requires her to be supervised. The children attend two different schools. The babysitter takes the older child to school first. She then picks them up, takes them to her home, and provides them with a snack before taking the two younger children to the mosque.

[17] In April, 2011, the mother obtained full time employment with the Housing Services Corporation. Her gross income for 2011 was $28,863.00. Her monthly expenses far exceed her monthly income, however. She has no savings or other assets apart from what has been disclosed in her financial statement.

[18] Regarding the father’s financial circumstances, she submits that shortly after he came to this country he worked for Canada Bread for less than one year and then decided to become a taxicab driver. While married, he had total control over the finances. He would save his earnings, while they would live off her income. She believes that he was able to accumulate substantial savings during the marriage and that these may well be invested in several properties in Pakistan. She submits that he has failed to disclose the value of inherited land he apparently owns there. His income during the marriage fluctuated. Given the nature of his employment, she submits that his income tax returns are not a true and proper reflection of his gross income over the years. His income for some of the relevant years was reported as follows:

1999 - $50,134.00

2001 - $ 9,109.00

2002 - $Nil

2003 - $Nil

2004 - $37,286.00

2005 - $Nil

2007 - $ 5,553.50

[19] She submits that his only true income is that which was declared in 1999. In this year he was sponsoring his parents and siblings to come to Canada to live. He had to show that he was earning a reasonable income.

[20] She submits that he would not, or should not have continued in a business in which he was not earning substantial money to make it worth his while. Additionally, she submits that the expenses to run his business should be nominal.

[21] Since separation, the father has travelled to Pakistan on two occasions, in November, 2011, and again in January, 2012. She finds it difficult to accept that he can afford to purchase airline tickets which cost approximately $2,000.00 per trip, plus pay for all other ancillary expenses.

[22] The mother’s sister-in-law, Kalsoom Mohammed, prepared an affidavit, affirmed on July 4, 2012. In it, she confirms that she agreed to look after the subject children, including taking them to religious studies after school every day. She is paid $1,100.00 per month for doing so. She started in this capacity on July 4, 2011. She has provided copies of receipts in respect of the payments she has received for child care. These were paid mainly in cash, and occasionally by cheque.

[23] Ms. Mungol, counsel for the mother, essentially submits that the father’s financial disclosure and his oral submissions clearly show that he is not working to capacity. The average number of days worked in the last year, for example, demonstrate that he is not working full time.

3:2 The Father

[24] He is asking the Court not to impute his income in the amount suggested by the mother, as this would be a gross injustice.

[25] His main operating expenses include daily cab rental of $87.00; gas expense at $1.23 per litre; car wash expense of $10.00 per wash; and payment of an annual cab licence fee of $310.00.

[26] He submits that his financial disclosure is accurate. The Notice of Assessment for 2011 shows gross income of $12,726.00.

[27] He submits that the Y.M.C.A. expense claimed by the mother is merely an effort by her to gain an advantage by receiving more money from him. The children were never enrolled in such activities prior to the separation. He believes that she has chosen to start an expensive campaign against him. He contends that he cannot afford to have the children enrolled in such an “extraordinary programme”.

[28] Regarding religious expenses, this was affordable only when they had joint income. He submits that there are cheaper alternatives available, such as on-line lessons.

[29] Regarding daycare expenses, he submits that the two older daughters, who will soon be 13 and 11, respectively, do not require daycare or the assistance of a babysitter. He claims that the mother’s position about their safety being in danger because he might take them back to Pakistan, is baseless and speculative.

[30] He essentially argues that the mother is the one who is exaggerating her claim for these expenses. Her materials originally indicated that her parents and other family members would assist her with child care. Whereas all other expenses are paid by credit card, she pays cash only to her sister-in-law. He does not believe that she is actually paying any amount for daycare or rent. He submits that she is also living in a house owned by her family.

[31] He asks the Court to consider the fact that she is receiving tax benefits in the amount of $1,372.00 per month. This amount, plus his monthly payment of $441.00, should be enough for the children’s needs.

[32] In conclusion, he asks the Court to make an order for child support on the basis of his stated income, and to dismiss that part of the mother’s motion for special expenses. He has been a diabetic since 2007. In the last year he has had difficulties with severe allergies. He takes a weekly injection. His condition has worsened. Because of this, he takes multiple breaks throughout his work day to take medication and to re-energize. Whereas younger cab drivers are able to cruise for many hours at a time, he cannot, because of his medical limitations.

[33] He also asks the Court to terminate the restraining order against him. This potentially criminalizes him and impacts on his ability to earn income.

4:0 GENERAL PRINCIPLES re: ADDING BACK UNREASONABLE EXPENSES AND IMPUTING INCOME

[34] In this case, there are two live issues. The first relates to whether all of the expenses the father claims are legitimate, or whether some should be discounted, or added back for purposes of calculating the appropriate quantum of child support.

[35] The second has to do with how the Court goes about imputing income.

4:1 Adding Back

[36] Adding back is a two-step process. Step 1 is to prove that the expense was actually incurred. Step 2 is to then determine if it was reasonably incurred for Guideline purposes. Section 19(1)(g) of the Federal Child Support Guidelines (the “Guidelines”) speaks to the unreasonable deduction of expenses from income. However, it does not require establishing that the father has acted improperly or outside the norm of deducting expenses. What is important to note, is that expenses which may be legitimately deducted for tax purposes, may be interpreted in a different manner under the Guidelines. In other words, if the Court can conclude that the father personally benefited to the detriment of his children, then the Guidelines are more strict.

[37] For many self-employed individuals, guideline analysis is difficult, in part, because the filing of financial disclosure is done through a self-audited system. Accordingly, litigants will often make their own “executive” decision as to what expenses relate to their business and their corresponding ability to earn income.

[38] In attempting to determine income, judicial discretion is perhaps more of an art than a science. The Court must examine expenses from the perspective of balancing the business necessity against the alternative of using those funds for child support. Of course, the Court should respect the right of self-employed individuals to run their businesses as they see fit, but may nevertheless question whether particular expenses ought to be indirectly subsidized by lower child support.

[39] In the present case, the father’s financial disclosure is not particularly detailed. Nonetheless, the expenses set out therein appear to be necessary and legitimate. Accordingly, no amount can be recaptured or added back for child support purposes.

4:2 Imputing Income

[40] The more meaningful analysis in this case relates to whether or not income should be imputed to the father.

[41] There are a number of basic principles which must be considered. Among them is the imperative that payors must not arrange their financial affairs so as to prefer their own interests over those of their children. Furthermore, a parent is required to act responsibly when making financial decisions that may affect the level of child support available.

[42] Imputing income does not incorporate a requirement for proof of bad faith. However, the word “intentionally” in this context means that the provision does not apply to situations beyond one’s control.

[43] Even where a parent is found to be intentionally under-employed, the Court may still exercise its discretion not to impute income where that parent establishes the reasonableness of his decision.

[44] However, a parent will not be excused from his child support obligation in furtherance of unrealistic or unproductive career aspirations or interests, or in taking a job merely because it suits his purposes.

[45] Section 19 of the Guidelines sets our nine specific examples of circumstances when a Court might consider imputing income. The list is not exhaustive, however.

[46] It must be noted that s.19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. Rather, the Court’s discretion must be granted on the basis of evidence. The Court should consider the payor’s age, education, experience, skills and health, as well as the availability of job opportunities, including the number of hours that could be worked in light of other obligations.

[47] As a practical matter, it is not always easy to determine when a parent is a victim of unfortunate financial circumstances, or the author of them.

[48] The Court must be careful not to impute income merely to punish a payor. Rather, income should be based on what the father could or should reasonably be earning in the circumstances.

5:0 APPLICATION OF THE PRINCIPLES

5:1 Inputing Income

[49] The father has made much of his health concerns in this motion. He claims that his diabetes, for example, hinders him or serves as a limitation to him working the number of hours that a taxicab driver would otherwise work. It is important to note, however, that he has not provided any medical documentation setting out the impact that this has on his ability to ply his trade.

[50] The Court queries whether he has taken all steps necessary to maximize his income. What is not an option, is for him to simply give up or resign himself to the fact that he is unable to work longer or harder by virtue of his medical problems, without showing how they adversely affect this ability.

[51] Furthermore, despite disappointing earnings over a number of years, for whatever reason, he has persisted in this business. One would think that when faced with unprofitable work, he would at least try to earn additional income from part-time work.

[52] The operative word in this analysis is still “reasonableness”. There are some situations where there is an obvious motive to avoid paying support, particularly in situations where payors have health issues, which may be put forward in an effort to mask one’s true motives. There are other cases where a payor is simply indifferent, or too self-centred, and perhaps does not view his lack of ambition as an intention to avoid paying support. To be fair, the father’s circumstances in the present case likely fall somewhere in between these two scenarios.

[53] In the final analysis, the Court concludes that the father has made a choice about the type of work he wishes to do. There has been no evidence put forward as to whether he has pursued other types of employment in keeping with his skills and training. The consequences of his choice, therefore, should be borne by him, not his dependants. Furthermore, he has had ample time to have considered retraining for a better paying job.

[54] In the result, he will be subject to an order imputing income, because he has made a choice, without good reason, to earn less than he is capable of earning.

[55] The Court is quite satisfied that an appropriate imputed gross annual income of $36,960.00 is appropriate. This is significantly less than the income reported in 1999, and fairly close to the reported income in 2004.

[56] However, the order will not be made retroactive to June, 2011, but will take effect as of August 1, 2012. Rather than placing the father in a financial position that will leave him with little or no incentive to comply with any order, he should now realize that, going forward, his obligations to his children must be of primary concern. He will obviously need to organize his financial affairs and to adjust his employment situation accordingly. He should also appreciate that this Court is granting him some relief and leniency as an incentive to meet these ongoing obligations.

5:2 Special Expenses

5:2.1 Swimming Lessons

[57] The Court finds that this is not at a frivolous expense. This is a notorious and obvious activity for which even the most conflictual parents can usually agree to support. Furthermore, this skill is essential to a child’s well-being and development. There is nothing extraordinary about this expense. In any event, the cost is minimal. The father will therefore be required to pay one half of the very modest monthly amount of $53.00. His portion will be $26.50 per month, commencing August 1, 2012.

5:2.2 Religious Expenses

[58] This expense is also meaningful, reasonable and appropriate. The Court is, in fact, quite surprised that the father would even contest this, given the priority and emphasis he wishes to put on this aspect of the children’s development. Furthermore, this is a very modest expense. Accordingly, he will also be responsible to pay one half of this $50.00 per month cost. His portion will be $25.00 per month, commencing August 1, 2012, and upon receiving the invoice for same from the mother.

5:2.3 Child Care

[59] Ordinarily, the Courts consider this expense as a time-limited financial commitment until a child reaches the age of 11 or 12. This is yet another well-recognized and accepted expense for which parents are responsible. However, the Court finds that there is little or no merit to the mother’s position that the two older children require this type of supervision to prevent the father from otherwise spiriting them away back to Pakistan. The Court is quite satisfied that this is not going to happen. In any event, the non-removal order presently in place is sufficient for this purpose.

[60] The Court does find, however, that the daycare costs for the youngest child, Iman, (age 5) are quite appropriate. Assuming the same arrangement can continue with the current babysitter, the father should only be responsible to pay one half of the cost for one child only. One third of the total monthly daycare costs of $1,100.00 equals $366.00, approximately. His share of this is $183.00 per month. This should be paid until the subject child turns 12. This expense should also be paid on a going-forward basis as of August 1st, 2012. The Court is not satisfied that this expense needs to be retroactive. The mother assumed that this level of vigilance was necessary so that the children would not be vulnerable to being effectively “kidnapped” by the father. For the reasons already indicated, the Court finds it hard to accept that this was ever really going to be the situation.

6:0 RESTRAINING ORDER

[61] Although this is not formally a part of the mother’s motion, the parties have asked the Court to finalize all issues. Therefore, this issue will also be addressed.

[62] The Court finds that, quite often, there is a rush to judgment by parties, believing that a restraining order is a panacea to many of the difficulties between them. What is not often fully considered, however, is the significant impact that such an order can have on an individual. This information or data is available to the police authorities, and often, its prejudicial effect often outweighs its utility. Parties are often advised by authorities (i.e. police) that a restraining order should be obtained.

[63] The Court is not satisfied that there remains a meaningful evidentiary foundation on which to continue such an order.

[64] Whatever the father may or may not have said historically about taking the children back to Pakistan, either in a moment of frustration, or as a matter of mere puffery, with the significant passage of time, what may have been a live issue is no longer so.

[65] Even though it may be speculative that the father’s ability to earn income is somehow affected by maintaining such an order, the Court sees no reason why such order must still exist. Surely, the father must know how to conduct himself in the future. He also has the assistance of his two brothers, both of whom have been attending Court with him. The Court is quite satisfied that they all now understand how a restraining order could affect their careers and livelihood. It is expected that all parties now have a better understanding of the necessity and importance of family members being able to get along to protect and promote the best interests of the children.

7:0 ORDER

[66] The Court makes the following final order:

1. The father, Muhammad Asif Sahi, shall pay child support to the mother, Nazia Mohammed, on behalf of the three children, Zunaira Sahi, born […], 1999; Nida Sahi, born […], 2001; and Iman Sahi, born […], 2007, in the table amount of $717.00 per month, on imputed annual income of $36,960.00, commencing August 1, 2012. A support deduction order shall issue.

2. The said father shall pay to the said mother s.7 special expenses in the amount of $234.50 per month, commencing August 1, 2012. These expenses consist of $183.00 for child care; $26.50 for swimming; and $25.00 for religious studies. The total monthly amount for child support and special expenses is $951.50.

3. The parties shall exchange financial disclosure annually, including copies of income tax returns and notices of assessment. This disclosure shall be provided on or before the 30th of June of each year commencing in 2013.

4. The restraining order against the said father is terminated as of August 1, 2012.

8:0 COSTS

[67] The parties may submit written submissions regarding costs. The mother’s materials shall be served and filed within 10 days. The father shall have 10 days thereafter in which to serve and file his submissions.

[68] The Court wishes to put the parties on notice, however, that a costs order against the father could adversely impact the father’s incentive and ability to embrace his ongoing support obligations on a going-forward basis.

Released: August 7, 2012

Justice S.R. Clark