Court File and Parties

Court File No.: D80913/15 Date: 2016-08-16 Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1

Between: Rifat Jahan, Applicant (mother) And: Muhammad Khurshed Alam Chowdhury, Respondent (father)

Before: Justice Robert J. Spence

Heard: 10 August 2016

Reasons for Judgment released on: 16 August 2016

Counsel:

• Ms. Mary P. Reilly for the applicant, mother
• Respondent, father in person

Introduction

[1] The purpose of this hearing before me was to determine the amount of child support to be paid by the father to the mother. There are two children of the marriage, ages 7 and 9 years.

[2] More specifically, the mother seeks an order for the table amount of support under the Child Support Guidelines ("Guidelines"), as well as support for section 7 expenses under the Guidelines.

[3] Mother has not specified the precise amount of support she is seeking as the amount is dependent on what income the court imputes to the father, for various periods of time, which I will particularize later in these reasons.

Brief Background

[4] The parties were both born in Bangladesh, where they were married in 2006. They subsequently immigrated to Canada.

[5] The parties initially lived in Saskatchewan. However, following the parties' separation in 2012, the mother moved back to Bangladesh; she then returned to Canada, and moved to Toronto in 2013.

[6] The father remained living in Regina, Saskatchewan, where he continues to live today.

[7] The father has not seen the children since January 2012.

[8] The children and the mother have continued to live in Toronto.

[9] The mother commenced this proceeding in Toronto by issuing an application on May 28, 2015.

[10] In her application, mother sought, inter alia, custody of the two children and child support.

[11] On November 3, 2015, the father consented to an order for final custody in favour of the mother.

[12] On March 8, 2016, the father consented to a final order that he have no access to the children.

[13] There were various allegations about physical and emotional abuse during the period of time the parties lived together. However, for the purposes of this proceeding, nothing turns on those allegations.

[14] Both parents were highly educated in Bangladesh. However, the mother was unable to utilize her educational qualifications in Canada. As a result, she has worked only in low-paying service jobs. She is currently receiving social assistance benefits which top up her low wage earnings.

[15] The father initially worked at low-paying jobs when he came to Canada. However, in 2010 he applied to Law School at the University of Saskatchewan. He began law school in 2011 and he graduated in 2014.

[16] From about June 2014 to June 2015 he articled for the Government of Saskatchewan.

[17] Following completion of his articles, the father was called to the Bar of Saskatchewan.

[18] In or around July 2015 father left Saskatchewan to live in Quebec for three months in order to upgrade his French language skills. While he was engaged in his French language upgrading he also worked as a dishwasher in a restaurant.

[19] In or around September or October 2015, he returned to Saskatchewan. Because he was unable to find employment as a lawyer, he opened his own law practice and began to work as a sole-practitioner. He continues to work as a sole practitioner today.

The Support Issues

[20] There are a number of time periods involved in the determination of the father's child support obligations. I set out those time periods below, and the general heading which applies to father's activities for each period.

Time Periods:

1. January 2012 to May 2014 – law student and pre-articling
2. June 2014 to May/June 2015 – articling period
3. June/July 2015 to September 2015 – living in Quebec
4. October 2015 to the present – working as a sole practitioner lawyer

1. January 2012 to May 2014

[21] The parties separated in January 2012. In February 2012, the father began paying child support to the mother of his own volition.

[22] It is undisputed that the father's periodic support payments during this period totalled $8,500.

[23] Father's position is that he overpaid support during this period of time, as his income - as reflected in his income tax returns - was well below the level that would otherwise have obligated him to pay this amount of support.

[24] The mother questions whether the father's declared income was as low as the father has deposed.

[25] In any event, she argues, the father chose to recognize his support obligations and to send these support payments to the mother, for the support of their two children.

[26] Mother submits that the father made a choice about how much money to send to her based upon all of his financial circumstances, as well as his recognition that the children required financial support at some, more-or-less reasonable level.

[27] The father argues that he should be repaid by the mother to the extent of his alleged overpayments. In the alternative, he argues, he should be given a credit for those overpayments on a go-forward basis, as against any support order made by the court in this proceeding.

[28] I disagree with the father's position.

[29] Support is the right of the children. The purpose of support is to assist in providing the children with their day-to-day needs.

[30] There is no suggestion that mother simply took those periodic support payments and used the funds for her own benefit, or that she accumulated assets derived from those payments.

[31] The mother was in receipt of social assistance, or she was earning at or near minimum wage in her attempt to look after both of the children who were living with her on a fulltime basis.

[32] If there had been a "typical" access arrangement, the father might have spent in the range of 6-10 days each month with his children. In such a scenario, he would have necessarily incurred expenditures on behalf of his children while they were in his care, thereby offsetting some of the mother's financial burden for them.

[33] However, he ceased all access with the children immediately following the parties' separation. Because the father did not exercise any access to the children, he was never required to buy meals, clothing or make any other expenditures for the benefit of his children, in the way that an access parent would normally do when that parent is exercising access for several days each month with his or her child.

[34] In other words, the mother bore 100% of the financial burden for the support of both children.

[35] To the father's credit, he did send the mother regular support payments without the need for a court order. Whatever those amounts were on a monthly basis they were amounts that the father chose to send.

[36] He clearly made those choices based on a number of considerations, including his own financial circumstances, as well as his recognition that the children required financial support.

[37] The court has discretion in deciding how to deal with overpayments of child support. The essence of that discretion turns on what is fair in the circumstances of the particular case. See for example, Meyer v. Content, 2014 ONSC 6001.

[38] In all the circumstances, I have concluded that it would be unfair to the mother and the children to require the mother to either refund any portion of those payments to the father, or to lower his child support obligations on a go-forward basis.

2. June 2014 to May/June 2015 – Articling Period (12 months in total)

[39] During the course of argument in this hearing, the parties ultimately agreed that for this 12-month period, the father's income was $50,823.

[40] The child support obligation pursuant to the Saskatchewan Guidelines is $674 per month, for two children, based on that level of income. Accordingly, the total support payable would be $8,088 (12 months x $674 per month).

[41] The father paid $4,700 in total support during this 12-month period. The mother seeks the difference between what the father actually paid and what he ought to have paid in accordance with his income, namely, $3,388.

[42] Mother's claim for this amount is based on what she argues is an entitlement to retroactive support.

[43] In the mother's application, issued May 28, 2015, the mother did make a claim for retroactive support back to the date of separation, namely January 2012. Accordingly, her claim for retroactive support would subsume the 12-month articling period.

[44] The mother's request for retroactive support is governed by the principles set out in the case of D.B.S. v. S.R.G., 2006 SCC 37. In that case, the Supreme Court of Canada held that in determining a claim for retroactive support, a court must consider all the relevant circumstances to decide what is fair.

[45] The four primary factors for the court to consider are:

1. whether the recipient parent has supplied a reasonable excuse for the delay in seeking the support;
2. the conduct of the payor parent;
3. the circumstances of the child; and
4. any hardship to the payor parent in the event of an award of retroactive support.

Factor 1 – Does Mother Have a Reasonable Excuse for Delay in Seeking Support?

[46] There was no attempt on the part of the mother to explain why she delayed her request for support until she issued her application at the end of May 2015. This factor was simply not addressed in mother's evidence.

Factor 2 – Conduct of the Payor Father

[47] The father willingly paid child support commencing the first month following the separation of the parties.

[48] There does not appear to be any evidence in this proceeding which suggests that the father was somehow attempting to avoid his child support obligations, or that he was remitting money to the mother in amounts which were manifestly unfair.

[49] I can see no reason to conclude that the father's conduct is in any way blameworthy.

Factor 3 – The Circumstances of the Children

[50] In reviewing the mother's evidence, she does not provide specific evidence that the children have suffered in any way which is connected to the father's underpayment of child support during the period of retroactivity claimed by the mother.

[51] That said, it is clear that the mother and the children were living at a subsistence level of income. As I noted earlier, the mother was subsisting on a combination of social assistance income and minimum wage jobs.

[52] It is reasonable for the court to conclude that the children would have been better off had they been in receipt of monies consistent with the table amount of support as provided for in the Guidelines.

[53] To the extent that the father paid less to the mother than the Guidelines otherwise require, the court may reasonably infer that the children were financially worse off as a result of the lower support payments which the father sent to the mother.

[54] In that respect, while there is no specific evidence of hardship to the children, the court is able to conclude that the children suffered, at least to some extent, during this period of time.

Factor 4 – Would Father Incur Hardship in the Event of an Award of Retroactive Support?

[55] The father did not address whether an award of retroactive support would cause him hardship.

[56] The court has no reason to conclude that the father is legally responsible for the support of any person other than himself. More specifically, there is no evidence that he has re-partnered or commenced a second family. He has only himself to support.

[57] While the father does state that his current income is quite low, any serious challenges the father might have in paying retroactive support can be dealt with by the court setting a reasonable payment schedule.

[58] Factors 1 and 2 weigh in favour of father's opposition to the request for retroactive support.

[59] Factors 3 and 4 weigh in mother's favour in support of her claim for retroactivity.

[60] Based on all of the foregoing, including the fact that the total retroactive amount claimed is relatively modest, I have concluded that it would be fair and reasonable to require the father to pay the retroactive support claimed in the amount of $3,388.

3. June/July 2015 to September 2015 – Father Living in Quebec

[61] After his employment with the Government of Saskatchewan was terminated, the father was awaiting the results of his applications for a number of legal positions to which he had applied.

[62] While awaiting responses to these applications, the father moved to Quebec, where he enrolled in a university for the purpose of upgrading his French language skills.

[63] While taking this upgrading program, he also worked as a dishwasher in a restaurant.

[64] His total earnings for this 4-month period amounted to $2,537, as evidenced by his T4 2015. On an annualized basis, this works out to an income of $7,611.

[65] The mother argues that this amount reflects an underemployment and, accordingly, the court should impute a higher level of income for child support purposes. See Drygala v. Pauli.

[66] The mother says that the court should find the father was capable of earning at least minimum wage during this 4-month period. The minimum wage in Saskatchewan was $10.20 per hour. For a 37.5 hour week, that would amount to $19,890 on an annualized basis.

[67] I disagree with mother's position.

[68] I do not find it unreasonable that the father chose to upgrade his French language skills while working as a dishwasher in a restaurant for a period of 4 months.

[69] While the amount that father earned does seem somewhat low, the mother did not dispute the accuracy of the T4 which the father filed in this proceeding.

[70] In any event, the father did pay the mother child support in the amount of $400 per month during this period of time.

[71] I conclude that the mother is not entitled to any further child support, beyond the amount the father paid, for the period of time that he was living in Quebec.

4. October 2015 to the Present – Working as a Sole Practitioner Lawyer

[72] Because the father was unable to find any jobs working as a lawyer with a law firm, or otherwise for an employer, he set up his own sole practice in or about October 2015.

[73] He claims that his first year's earnings amount to $15,000 after deducting reasonable expenses which he incurred in operating his law practice.

[74] The mother disputes this amount.

[75] The mother filed a Government of Canada "Explore Careers – Wage Report" for lawyers. That report discloses "wages" for lawyers, broken down by region, including Regina, Saskatchewan where the father currently lives and practises law.

[76] According to that report, the low, median and high annual wages for lawyers in Regina are $55,182, $116,172 and $221,058, respectively.

[77] Based on this report, the mother asks the court to impute income to the father in the amount of $50,000, being approximately the low end of that wage report, in recognition that this is father's first year of practising as a lawyer.

[78] In Caine v. Ferguson, 2012 ONCJ 139, Justice Stanley B. Sherr addressed the weight to be given to such survey reports. At paragraph 32 of Justice Sherr's reasons, he stated:

In Rodrigues v. De Sousa, 2008 ONCJ 807, I relied on the case of Scholes v. Scholes and permitted the introduction of reports from Ontario Job Futures and Statistics Canada as evidence of income levels for a payor in the insurance industry. In these cases, the reports came directly from provincial and federal governments and had some indicia of reliability. However, citing Isakhani v. Al-Saggaf, 2007 ONCA 539, I expressed the need to exercise considerable caution in how much weight the court could attach to such documents as they were unsworn third-party statements that could not be tested by cross-examination. In the specific circumstances of the payor in Rodrigues v. De Sousa, I did not apply the wage range set out in the government publications.

[79] The added difficulty with the report which mother filed in this case is that it reports average "wages".

[80] The Shorter Oxford English Dictionary defines "wage/wages" as follows:

A payment to a person for service rendered; now esp., the amount paid periodically for the labour or service of a workman or servant.

[81] This definition of wages implies amounts paid to an employee by an employer. This is very different from fees or revenues generated by an individual who is self-employed, as the father is in this case.

[82] Self-employed income is not the same as wages.

[83] Furthermore, the amounts disclosed in this report are based on surveys. They reflect averages based on those surveys. They do not purport to be otherwise.

[84] While the court may be able to rely on this kind of data in certain circumstances, any individual seeking to rebut the validity of that data, for his or her particular circumstances, has the right to do so. That is what the father's evidence purports to do in this case.

[85] The mother argued that the court should infer that $15,000 is an unreasonable amount for a lawyer to earn, even a first year lawyer.

[86] Moreover, she argues that amount is unreasonable in the context of this case where the father was able to earn approximately $50,000 as an articling student for the Government of Saskatchewan.

[87] However, the father gave unchallenged evidence that after his articles were completed, his employment with the Government was terminated due to a hiring freeze.

[88] Furthermore, the downturn in the oil and gas industry has worsened overall hiring in Saskatchewan.

[89] None of this evidence was disputed.

[90] Moreover, this court cannot conclude, without better evidence that a first year lawyer, who is self-employed, starting from scratch, should be imputed at $50,000, without better evidence to support such a conclusion.

[91] The court cannot take judicial notice that the income for a self-employed first year lawyer ought to be greater than $15,000.

[92] While Drygala, supra, does allow a court to impute income to a payor parent, as Justice Sherr noted in Caine, supra, at paragraph 20:

The onus is on the applicant to establish that the respondent 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.

[93] The mother has not satisfied the onus of establishing the "evidentiary basis" which would allow the court to conclude that the father's income, or his income-earning capacity, as a first year self-employed lawyer, is other than as he has stated, namely $15,000.

[94] The Guideline table support for a payor parent earning $15,000 is $201 per month, for two children.

[95] For the 8-month period from October 2015 to the end of May 2016, the father ought to have paid $1,608 (8 months x $201 per month).

[96] Since he began practising as a sole practitioner in October 2015, the father made the following support payments to the mother:

• October and November 2015 – 2 months @ $400 per month (total $800)
• December 2015 to May 2016 – 6 months @ $50 per month (total $300)
• Total support paid - $1,100

[97] Accordingly the shortfall of support paid by father is $508 ($1,608 - $1,100).

[98] While there is no evidentiary basis for adjusting the support beyond the aforesaid amount of $508, in the father's relief sought, he did submit that it would be appropriate for the court to order ongoing support, after May 2016, based on an imputed annual income of $24,024.

[99] I accept father's submission in that regard.

[100] On that basis, I would order Guideline table support for two children in the amount of $351 per month, based on an imputed annual income of $24,024, commencing June 1, 2016.

[101] In his submissions, father also submitted that it would be reasonable for the court to impute a yearly income of between $25,000 and $35,000 for his second year of practice, and $55,000 for his third year of practice.

[102] I accept father's submissions with respect to his years 2 and 3 levels of income.

[103] Accordingly on those submissions, I would order the following support for two children:

1. Commencing January 1, 2017 and concluding December 31, 2017, father to pay mother $472 per month based on an imputed income of $35,000; and
2. Commencing January 1, 2018, father to pay mother $744 per month based on an imputed income of $55,000.

Section 7 Expenses

[104] Mother claims section 7 support from the father in the additional amount of $9 per month, for swimming lessons and soccer expenses which she incurred on behalf of the children in 2015. The total amount which she paid for those activities was $345 for both children. She says these are "extraordinary expenses for extracurricular activities".

[105] The relevant portions of section 7 of the Guidelines provides:

7. (1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:

(f) extraordinary expenses for extracurricular activities.

[106] The mother adduced no evidence of:

1. The necessity of the expenses in relation to the children's best interests, and
2. That the expenses themselves were extraordinary.

[107] Accordingly, I am not prepared to allow her claim for section 7 expenses.

Conclusion

[108] On the basis of the foregoing, the court makes the following final order:

1. Arrears of support owing by the father to the mother are fixed at $3,896, as at May 31, 2016.

2. Commencing June 1, 2016, the father shall pay the mother Guideline table support in the amount of $351 per month for two children, based on income imputed to the father in the amount of $24,024 per year.

3. Commencing January 1, 2017, the father shall pay Guideline table support to the mother, for two children, in the amount of $472 per month, based on imputed income to the father in the amount of $35,000 per year.

4. Commencing January 1, 2018, the father shall pay Guideline table support to the mother, for two children, in the amount of $744 per month, based on imputed income to the father in the amount of $55,000 per year.

5. The father's obligation to pay support as set out in paragraphs 3 and 4 of this order, is without prejudice to mother's right to claim a greater amount of support upon full financial disclosure by father, as set out in paragraph 7 of this order.

6. In addition to the Guideline table support amounts, as set out above, the father shall pay arrears of support to the mother in the amount of $175 per month, commencing January 1, 2017, until the aforesaid arrears totalling $3,896 are fully paid.

7. By June 1st each year, commencing June 1, 2017, the father shall provide annual financial disclosure to the mother, which shall include his income tax return, together with attachments to his return, his Notice of Assessment from Canada Revenue Agency and his business financial statement. In the event that mother requests in writing further financial disclosure from the father in respect of his law practice, the father shall comply with any such reasonable request, within 30 days following such request.

8. By June 1st each year, commencing June 1, 2017, in the event mother seeks contribution from the father toward claimed section 7 expenses, she shall provide financial disclosure to the father, which shall include her income tax return, together with attachments to her return and her Notice of Assessment from Canada Revenue Agency.

9. In the event mother seeks contribution from the father toward section 7 expenses, she shall provide the father with copies of receipts pertaining to those expenses, as well as a brief description of the expenses themselves, including the reasonableness and necessity of the expenses having regard to the best interests of the child(ren).

[109] All other support-related claims by the parties are dismissed.

[110] In the event that either party seeks his or her costs of this proceeding, that party shall make his or her costs submissions to the court, in writing, accompanied by a 14B motion form, no later than September 16, 2016. The responding party shall deliver his or her responding submissions no later than 14 days following receipt of the first party's submissions.

[111] In both cases, submissions are to be limited to 3 pages, double-spaced, using a minimum of 12-point font. In addition to written submissions, either party may file any necessary supporting attachments, such as Offers to Settle, Bill of Costs and authorities upon which the party may be relying.

[112] In the event the court has made any arithmetical errors in the various calculations in these reasons, the parties may advise the court by 14B motion form no later than August 31, 2016.

Justice Robert J. Spence August 16, 2016