Court File and Parties

Ontario Court of Justice

Date: May 31, 2018

Court File No.: Toronto D90616/16

Between:

Amber Sabeeh, Applicant (Mother)

— AND —

Sabeeh Syed, Respondent (Father)

Before: Justice Robert J. Spence

Heard on: March 19, 20, and 21, 2018

Further written submissions received: May 8 and May 22, 2018

Reasons for Judgment released: May 31, 2018

Counsel:

• Ms. Eva Chan, counsel for the applicant Mother
• Mr. Kenneth Snider, counsel for the respondent Father

SPENCE, J.:

1: INTRODUCTION

[1] This is an application brought by the mother ("mother" or "Amber") for a number of orders, including custody, child support and spousal support. Prior to trial the parties settled the custody issue, with the mother to have sole custody of the three minor children, with specified, non-overnight access to the father ("father" or "Sabeeh").

[2] The issues for trial were child support and spousal support. In order to determine these issues, both parties were seeking an order imputing a certain level of income to the other party.

[3] More specifically, Amber sought an imputation of income to Sabeeh in the amount of $175,000 per year. She sought both child and spousal support based on that imputation.

[4] Sabeeh sought an imputation of income to Amber in the amount of $30,000 per year. He was prepared to pay child support based on an income imputed to himself, also at $30,000 per year. He was opposed to any order requiring him to pay spousal support.

2: BRIEF BACKGROUND

[5] The parties are both 45 years old. They were married in Pakistan in 1996, when each was 23 years old.

[6] Prior to the marriage Amber had finished two years of a four-year Bachelor of Commerce degree. However, in 1996 she left school to start earning an income in order to repay her government student loan ("OSAP") and to sponsor Sabeeh to immigrate to Canada.

[7] Sabeeh had earned a Bachelor of Commerce degree from the University of Pakistan prior to his arrival in Canada in 1998. He subsequently enrolled in evening classes at Ryerson University to upgrade his education. He also began working as an office assistant in 1999.

[8] At the same time, Amber was working as a payroll assistant, earning about $15,000 per year.

[9] Sabeeh worked for CN Railroad from about 2000, until he suffered a hand injury in 2009 and he was then in receipt of disability for a short period of time.

[10] According to Sabeeh, he subsequently took on agency work as an accountant/bookkeeper.

[11] He says that became a Certified General Accountant in 2010, which was then converted to a Chartered Professional Accountant designation in 2012 by his professional governing body.

[12] He testified that he opened his own business "Sabeeh Syed Accounting and Tax Services" ("SSATS") in December 2014.

[13] In 2017 Sabeeh applied for a work visa in the United States, in order to work with a partner in an office in New York City.

[14] He is licensed to practise in Manitoba as well as in Ontario. However, he states that his revenue from Manitoba is minimal. His primary business is centred in Toronto. He says that his Toronto business is mostly focused on bookkeeping, corporate and individual income taxes and audits. Since January 2018 Sabeeh has been licensed in Ontario to perform audits.

[15] The parties have four children, the oldest child being a boy, followed by three girls. The boy was born in 1999. He is not the subject of the parties' consent custody order. The three girls are respectively 16, 7 and 5 years of age.

[16] When the first child was born, Amber took maternity leave from her job. The parties subsequently separated, briefly, the first of what was to be three separations. This separation was brought on by an incident of domestic conflict which resulted in Sabeeh's arrest. They reconciled shortly afterwards.

[17] Amber decided to return to university while she was on her maternity leave. She obtained another OSAP loan and paid her tuition and then began classes. However, after only about one month, Sabeeh's expressed disapproval of Amber's decision to return to school led to her withdrawal from university.

[18] The parties' second separation resulted from another incident of domestic conflict. This separation lasted from December 2003 until October 2004. During this second separation Amber once again returned to school. In order to do this, she took another OSAP loan and she arranged with her own parents to care for the parties' then two young children while she attended classes. She was able to complete her Bachelor of Commerce degree in 2006.

[19] In or about 2007, Amber obtained employment as an administrative assistant at Allergen, a pharmaceutical company. She was earning an income of about $49,000 a year.

[20] In 2008, while she was pregnant, Amber suffered the onset of a serious ear infection, which lasted about two months and which, despite medical treatment resulted in a miscarriage and the permanent loss of about 60% of her hearing.

[21] The third child was born in 2010. Amber took another maternity leave for about one year. She then returned to work. She subsequently took another maternity leave in 2012 once the fourth child was born.

[22] Upon her return to work in 2012, Amber's employment was terminated due to company downsizing.

[23] The final separation occurred in January 2016 as a result of violence inflicted by Sabeeh on Amber and on the oldest child. This resulted in a criminal conviction against Sabeeh and a subsequent period of probation which will come to an end in June 2018.

3: LITIGATION PROCEEDINGS

[24] Amber issued her court application in April 2016. On July 26, 2016, Justice Zisman, as the case management judge, made a temporary without prejudice child support order in favour of Amber in the amount of $1,855 per month, based on Sabeeh's stated gross annual revenue of $81,728. She also made an extensive disclosure order with respect to Sabeeh's personal and business financial affairs.

[25] Sabeeh's disclosure was not completed by the time of the subsequent case conference dates, which were scheduled variously from October 7, 2016, to April 2017.

[26] Sabeeh then brought a motion to reduce his temporary child support obligation. However, Justice Zisman refused to hear that motion until Sabeeh had substantially complied with the disclosure order, and had done so in an organized manner.

[27] That motion was subsequently heard by the court on May 18, 2017. The parties took widely different positions as to what Sabeeh's income should be for support purposes. Ultimately, Justice Zisman made certain findings of fact which resulted in a dismissal of Sabeeh's motion. In doing so, Justice Zisman increased the temporary child support to $2,084 per month based on an imputed annual income of $94,088 to Sabeeh, for 2016.

[28] Following later costs submissions, on September 7, 2017 Justice Zisman ordered Sabeeh to pay $6,853.84 in costs to Amber.

[29] Subsequent court appearances were for the purpose of a settlement conference, and then assignment court at which time the trial was scheduled to be heard by me.

4: SABEEH'S INCOME

[30] The primary issue in this case is the determination of Sabeeh's income for support purposes. The relevant years for income determination are 2016 and 2017.

[31] The parties have vastly different positions as to what income ought to be imputed to him. For the years 2016 and following, Amber says that Sabeeh's income should be imputed at $175,000. Sabeeh says that his income for the years 2016 and following should be imputed at $30,000. In the next sections of my reasons I will set out the basis for the parties' respective positions.

4.1: Sabeeh's Position

[32] As I noted earlier, Sabeeh runs his own accounting business, SSATS, through a corporation of which he is the sole shareholder. He says that his business had gross revenue in 2016 in the amount of $84,360 and expenses in the amount of $82,752. The expenses included a salary paid to him by the corporation in the amount of $11,000.

[33] For the tax year 2016, Sabeeh's Notice of Assessment from Canada Revenue Agency ("CRA") reveals line 150 income in the amount of $11,000.

[34] However, in his statement of income and expenses prepared for trial he has added back certain expenses which are of a personal nature so that he says his actual income is $22,519. However, he testified that it would be reasonable for the court to impute income to him in the amount of $30,000 for child support purposes.

[35] From the draft order which Sabeeh submitted as part of the filings prior to trial, setting out the order he is requesting, it appears that he has ignored whatever his 2017 income might be, as he is asking for a support order based on what he says his income should be imputed at for 2016, namely, $30,000.

4.2: Amber's Position

[36] Amber's position is very different. She is asking the court to impute income to Sabeeh in the amount of $175,000.

[37] She argues that the court should make both a child support order as well as a spousal support order based on that income imputation.

[38] She seeks child support based on both the table amount of support pursuant to the Child Support Guidelines ("CSG") in the amount of $3,647 per month, for four children, as well as CSG section 7 support for the children for certain specified expenses.

[39] She is also asking the court to order Sabeeh to pay $1,474 per month for spousal support, based on the requested $175,000 imputation of income to him.

[40] I propose to set out in some greater detail the evidentiary basis for Sabeeh's position, followed by the evidentiary basis for Amber's position.

4.3: Sabeeh's Evidence Regarding His Income

[41] Sabeeh says he became a Certified General Accountant in 2010 and this certification was converted to a Chartered Professional Accountant in 2012 by his professional governing body.

[42] While he is also licenced to practise in Manitoba, he testified that his business revenue from Manitoba is minimal, amounting to only $1,500 in 2016 and $200 in 2017.

[43] His evidence is that his primary business focus is in Toronto, where he has a permanent client base of about 100 clients, made up of both corporations as well as individuals. He has two employees working for him on what he describes as an "honorarium", as well as another person who is able to assist when the work load requires it.

[44] In addition, he applied in October 2017 for a work visa for the United States. The U.S. authorities will decide by October 2018 whether to grant the visa. If it is granted, Sabeeh will open his New York office and work with a partner who is based in New York City.

[45] Sabeeh runs all of his business through his corporation, which pays him an income. He is the sole shareholder of that corporation, and he makes all of the decisions as to his compensation.

[46] The following is his evidence with respect to his 2017 income:

I do not have the business records compiled for 2017 for the company. The revenue for the company is approximately $103,000 and the expenses are approximately $107,000.

[47] Sabeeh produced no financial records for 2017. However, he stated that he is hopeful his business revenue will increase annually, especially if he is able to operate his business in New York.

[48] He did produce extensive records for 2016, filed in a number of disclosure volumes at trial. These included a statement of revenue and expenses, backup documents for his claimed expenses and various bank statements.

[49] Following a review of Sabeeh's Royal Bank of Canada ("RBC") bank statements, the parties both agreed that the total deposits by Sabeeh for his business in 2016 amounted to $94,637.33, inclusive of H.S.T., or $83,749.85, net of H.S.T.

[50] Sabeeh's line 150 income for the years 2015 and 2016, respectively, were $12,774 and $11,000.

[51] As at the date of trial, Sabeeh had not filed his 2017 income tax return.

4.4: Amber's Evidence Regarding Sabeeh's Income

[52] Amber has a very different view of Sabeeh's income. She rejects entirely that his income is as stated in his 2015 and 2016 income tax returns.

[53] She points out that that he took a number of trips during 2016 and 2017. For example, between January 2016 and September 2017, he travelled to New York City on eight different occasions.

[54] In October 2017 he travelled to Pakistan for one week. In November/December 2017 he spent one month in Pakistan.

[55] She has particular knowledge of Sabeeh's trips because she and Sabeeh are first cousins and, accordingly, they share close family relations.

[56] Amber filed as evidence an internet screen capture from Sabeeh's website revealing that Sabeeh has in fact already established an office at 100 Church Street, 8th floor, in New York, N.Y., together with the phone number of that office. The website reveals that the Chief Operating Officer of SSAT is Sabeeh's brother, Zia Syed, who currently lives and works full-time in the United Arab Emirates.

[57] As revealed by Sabeeh's Facebook page, he has a number of professional designations/qualifications/recognitions, including:

(1) A licence to Practice as a Public Accountant in Ontario, as issued by the CPA (Chartered Professional Accountants Ontario);

(2) American Institute of Certified Public Accountants, showing Certificate of Membership issued to Sabeeh M. Syed, CPA, admitted May 31, 2008;

(3) Chartered Professional Accountant, issued July 2, 2014 by The Chartered Professional Accountants of Ontario The Institute of Chartered Accountants of Ontario, showing a designation of CGA to Sabeeh;

(4) A Public Accounting Services Practice Permit, issued by the Chartered Professional Accountants Manitoba, designating Sabeeh as a Chartered Professional Accountant, and entitling him to provide public accounting services in the audit stream from his office in Winnipeg Manitoba; and

(5) By email addressed to Sabeeh, on September 20, 2017, he was notified by the Awards Executive that he had been nominated for the North American Excellence Awards 2018. This is an award which recognized Sabeeh's "hard work over the past 12 months" and which aims to reward the "ingenuity and sheer hard work of firms and individuals driving success in their respective sectors".

[58] Amber refers to Sabeeh's application for an E-2 Investor Visa regarding Sabeeh's intention to carry on business in New York. Amber states that based on her own investigations, an E-2 Visa would require an applicant to invest approximately $40,000 to $50,000 in capital in a "bona fide enterprise" in the United States.

[59] Sabeeh did not dispute this capital investment requirement needed to support his application but, rather, stated that the money did not come from him. Instead, he borrowed that money from his father. He testified that his father loaned him $25,000 in 2017, as well as a loan of $25,000 to Sabeeh's brother, for a total loan of $50,000, which was intended to be the start-up capital for the New York office.

[60] In support of this assertion, Sabeeh filed an affidavit from his own father who deposed that he loaned Sabeeh $7,320 in 2016 and $25,000 in 2017.

[61] Amber testified that much of Sabeeh's income consisted of cash prior to their separation. She stated that he rarely deposited the cash into his bank accounts when they were living together. Instead he would give her cash to make purchases, including the grocery shopping. The effect of her testimony was that Sabeeh was the spouse who controlled of the family finances.

[62] Amber accuses Sabeeh of creative accounting/bookkeeping in an effort to keep his net income low, thereby minimizing his income tax obligations. She says that he unreasonably wrote-off expenses which were not in fact business expenses.

[63] This allegation of creative accounting, combined with his failure to disclose all of his business revenue is, according to Amber, what has enabled Sabeeh to minimize his tax obligations to CRA.

4.5: Sabeeh's Evidence Lacks Credibility

[64] As I noted at the outset of these reasons, there is a very wide gap between what Sabeeh says his income should be for child support purposes, and the income which Amber is asking the court to impute to Sabeeh.

[65] The court finds Sabeeh's evidence to be lacking in credibility, for a number of reasons. I set out some of those reasons as follows:

(1) The Implausible Loan from His Elderly Father

As I noted earlier, Sabeeh claimed that the $50,000 start-up capital for the New York office came from his elderly father. His father is 82 years old. He came to Canada from Pakistan in 1999. In Pakistan he worked in a travel agency office. He owns no assets and he lives in subsidized housing in Toronto. His income is from Old Age Security, and it amounts to about $10,000 to $12,000 per year. When Sabeeh was asked how it was possible that his elderly father could manage to have accumulated $50,000 for a loan to his two children, Sabeeh responded that his elderly father managed to accumulate that amount over "4 or 5 years" after he paid his own expenses, such as rent and groceries. In other words, Sabeeh would have the court believe that a person whose income over a five-year period was, at most, $60,000, managed to save approximately $50,000 after paying all his own living expenses during that five-year period. This assertion is not credible.

Far more likely is that Sabeeh himself used his own funds for the New York business venture. Either he diverted monies into an account which was not disclosed to Amber and to the court, or he deposited undisclosed funds into his own elderly father's bank account and then took back those funds from his own father for use in the venture. In either event, the result is the same, namely, that large amounts of undisclosed funds were in Sabeeh's possession and control.

(2) Multiple Trips to New York with No Revenue Generated

As noted earlier, Sabeeh made several trips to New York in 2016 and 2017. He also has an office in New York City. And yet he testified that he doesn't do any remunerative work in New York. He also testified that all of his trips to New York were business trips. He said that one of his clients has a business in the United States. Sabeeh says he goes to New York to meet the "high top guys". The court finds it not credible that Sabeeh would make repeated trips to New York, that he has an office in New York, that he meets "high top guys" there for business purposes and yet, he generates no revenue as a result of his New York connections.

(3) International Travel on Minimal Income

Since separation, Sabeeh has made two trips to Pakistan. The court finds it not credible that he could manage to pay for these trips on an income reported to CRA in an amount which is less than minimum wage.

(4) The Yukon Contract and Questionable Invoices

From January to March 2015, Sabeeh was in the Yukon, performing work on a contract with the Canadian government. The government paid his travel expenses for this contract. Sabeeh billed the government $40,000 for that 3-month contract. While he was there he says he worked at an office provided by the government. He also said that even though he had an office provided to him, he did additional work for his own clients in another office, while in the Yukon. In other words, he was billing the government for his contract work and he was also working for his own clients. He said that in his own office, he had to pay someone to move an internet cable several feet from one location in the office to another location in that same office. He also paid someone to move the desk to another location in the office. The desk and the internet cable were already there, but he was simply moving them both a few feet away. And for that work, he produced an invoice in the amount of $5,364, which he says he paid, and then claimed as a business expense. Sabeeh deleted the name of the vendor on that invoice. Then, when his contract was ended, he paid exactly the same amount to move the desk and the internet back where they were when he first moved into the office. Again, Sabeeh had deleted the name of the vendor on the invoice which he produced.

When he was asked at trial why the two invoices did not reveal who charged him more than $10,700 for moving the cable and the desk a few feet, he said he had been told by the case management judge, Justice Zisman to delete the name when she ordered him to make full financial disclosure. In fact, Justice Zisman had not told him to do that. What she had told him to do was to redact the names of his own clients, when he produced his client invoices as part of his mandated financial disclosure.

Furthermore, it is almost inconceivable that Sabeeh would have paid someone more than $10,700 to move a desk (twice), and to extend an existing internet cable.

Amber testified that she communicated with Sabeeh by Skype almost every day while he was in the Yukon and she could see that he did not in fact have his own separate office. She says that Sabeeh's entire story – that he had to obtain a separate office, that he had to pay someone large sums of money to move a cable and a desk, are all a fabrication. She says that the set of invoices was created by the Sabeeh himself in order to fraudulently increase his expenses, thereby decreasing his taxable income. The court finds that Sabeeh's explanation makes no sense. Amber's evidence is far more credible. The court concludes that the two invoices produced by Sabeeh are likely falsified documents.

(5) Undisclosed CIBC Debit Card

At trial Sabeeh was shown a C.I.B.C. Advantage Debit card, in his own name. He had failed to disclose this as part of his financial disclosure prior to trial. When he was asked about the card, he said he called the bank and the bank told him that the card "doesn't exist". This response is not credible.

(6) Non-Disclosure of Personal Bank Accounts

Sabeeh produced a number of bank statements for his business account. He acknowledged that he also has a personal account. He did not produce the documentation for his personal account. He tried to explain that the reason for that non-disclosure was because of the way that the RBC login page appeared, making it less easy for him to then click on the link for his personal accounts. Again, this is an incredible statement; it is not believable, even more so because of the father's professional expertise.

(7) The Amber Accounting Business

He testified that Amber herself opened a business called Amber Accounting and Tax Services in January 2013. He said that she was the owner of the business and that he simply worked for her. Amber said that in fact it was Sabeeh who created this business and asked her to sign the papers showing that she was the owner, which she agreed to sign, well before they were separated. However, she says she never worked for the company, although she did do some data entry that he requested of her; nor was she ever paid any compensation for her work.

Sabeeh's assertion that Amber was the real owner of the business is not credible. In January 2013, when Amber supposedly opened this business and was purportedly the real owner and operator, she was at home caring for the parties' two year-old daughter and she was breastfeeding the parties' 4-month-old daughter.

Sabeeh himself acknowledged that Amber had no professional designation at that time, whereas he himself did have such a designation. Sabeeh was the one who met with the clients. He acknowledged she did not. Sabeeh was the person who would decide how much to charge the clients. Amber did not. The corporate tax return for the company was prepared by Sabeeh, not by Amber. The tax return was signed by Sabeeh's elderly father as "Director" of the company.

Regardless of Amber's signature on the incorporating documents, Sabeeh's assertion that she was the "owner" and that he simply "worked for her" is not credible. I accept Amber's version of the events and I reject Sabeeh's version.

(8) Failure to Disclose 2017 Financial Information

As I noted earlier, Sabeeh testified that his business generated revenue in the amount of $103,000 for 2017, with expenses of $107,000. And yet he produced no disclosure to substantiate these numbers, notwithstanding the ongoing obligation to make full financial disclosure.

Subrule 13(12) of the Family Law Rules ("Rules") requires a party to file an updating financial statement prior to trial. Sabeeh did file a financial statement on February 22, 2018, disclosing a current income of $12,000 and a 2017 income of $11,000. However, that disclosure was entirely misleading to the mother and to the court.

Furthermore, page 2 of the financial statement form states:

I attach proof of my year-to-date income from all sources, including my most recent . . . . statement of income and expenses/ professional activities (for self-employed individuals)

Whether or not he had prepared a formal statement of income and expenses for 2017, Sabeeh would have had sufficient documents to support his assertion respecting his income and expenses; otherwise, he would not have been able to state the amount of both his revenue as well as his expenses. And yet none of these documents were produced by him prior to, or at trial.

Sabeeh was very much aware that the quantification of his income would be the primary focus of this trial. Sabeeh's failure to make full financial disclosure was at the heart of the support motion heard by Justice Zisman in May 2017, and decided by her on June 9, 2017. In the face of that awareness, and despite the fact that he was represented by counsel, he failed entirely to make any financial disclosure whatsoever respecting his 2017 income. This failure goes to the very core of what this case is about; and, accordingly, the court can have no confidence in Sabeeh's evidence, where that evidence is either suspect, or where it conflicts with Amber's evidence.

(9) Asset Ownership Inconsistent with Claimed Income

In terms of what his financial statement does disclose, Sabeeh is the owner of two vehicles which he has valued at $44,000. This asset ownership is inconsistent with a person who claims to be earning an income which is either below, or barely above the subsistence level required for a person living in the City of Toronto.

(10) Non-Compliance with Prior Court Orders

On June 9, 2017 Justice Zisman ordered Sabeeh to pay temporary child support to Amber in the amount of $2,084 per month, as of February 1, 2016. Justice Zisman also ordered Sabeeh to pay costs to Amber in the amount of $6,853. By the date of trial in March 2018, Sabeeh should have paid support for 14 months, which amounts to $29,176, together with costs of $6,853, for a total amount of $36,029. In fact, Sabeeh had paid only $10,734. His refusal to comply with Justice Zisman's support order and costs order further undermines Sabeeh's credibility.

4.6: How Much Income to Impute to Sabeeh

[66] Section 19 of the CSG provides:

Imputing income

19 (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

(b) the spouse is exempt from paying federal or provincial income tax;

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

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

(e) the spouse's property is not reasonably utilized to generate income;

(f) the spouse has failed to provide income information when under a legal obligation to do so;

(g) the spouse unreasonably deducts expenses from income;

(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and

(i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

[67] One of the purposes of imputing income is to give effect to the recognition that parents have an ongoing obligation to support their children, and to pay support based on incomes which are fairly attributable to those parents.

[68] The leading case on the imputation of income in Ontario is Drygala v. Pauli, (2002), 29 R.F.L. (5th) 293 (O.C.A.). At paragraph 44 of the decision, the court stated:

[44] Section 19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court's discretion must be grounded in the evidence.

[69] Accordingly, this court must decide what income makes sense to impute to Sabeeh, based on the evidence led at this trial.

[70] I begin with the wage survey for accountants which was introduced in evidence by Amber. Sabeeh did not object to its admissibility. There is precedent for the admissibility of such surveys. See, for example, Rodrigues v. de Sousa, 2008 ONCJ 807 and Scholes v. Scholes.

[71] That survey was prepared by the Chartered Professional Accountants Canada and it provided a breakdown of income amounts for Canadian CPAs for 2014. The survey reveals that of the 5,640 members in the City of Toronto, the "mean" income was $167,000 annually, and the "median" income was $114,000 annually. An income of $85,000 was at the 25th percentile of income earners, while an income of $174,000 was at the 75th percentile.

[72] These kinds of surveys should be treated by the courts with some caution. Their value is in providing a reference point for the court to consider. In this case, it appears that a reasonable range for imputing income to Sabeeh is somewhere between $85,000 and $174,000.

[73] Sabeeh argues that the survey has no applicability in this case because:

There are firms in Toronto that make very good money and there are many that struggle, especially the young firms, like my firm.

[74] However, Sabeeh is not a first year accountant, nor even a second year accountant. On the evidence before me, he has been licenced to do this kind of work since 2008. Even if I discount the period that he worked for CN Rail, where he stopped working in 2009, he has been qualified to do his accounting work since at least July 18, 2011, according to his own testimony, a period of almost seven years.

[75] Trips to Pakistan and to the United States, as well as asset ownership, all relate to lifestyle. The Ontario Court of Appeal in Bak v. Dobell, 2007 ONCA 304, [2007] 86 O.R. (3d) 196, held that a payor's lifestyle will "often be relevant" in the determination of how much income to impute to him.

[76] Furthermore, he has designations in both Ontario as well as Manitoba. And he is licenced in the United States as well. Sabeeh acknowledged that he has clients in the United States. He said that those clients will send their paperwork to him in Toronto, where he will do the work for them, and then return the documentation to his clients in the United States.

[77] As well, he has been recognized by the Awards Executive of the North American Excellence Awards as someone deserving of recognition for his "ingenuity and sheer hard work".

[78] In my view, all of this takes him out of the category of the "young firms" who "struggle".

[79] I also take into consideration that he managed to obtain a government contract to work in the Yukon for three months, and for which he was paid $40,000.

[80] In addition, I note that while he was in the Yukon, charging the government $40,000 for his work, he says he was working for his private clients as well—although he provided no financial disclosure as to the work he performed or the revenue he received during that period of time.

[81] Furthermore, Sabeeh testified that he works from about 9:00 a.m. until midnight every day because he has no child care responsibilities and, as he said, "what else do I have to do?" He is totally free to devote 12-15 hours per day, every day, to his work and to maximizing his income. He is nothing, if not a diligent and dedicated professional, someone who seeks to maximize his income-earning potential.

[82] Had Sabeeh made full and frank disclosure of his 2017 finances it might have been somewhat easier for the court to arrive at an income amount which more closely reflects reality. That said, his disclosure for 2016 was unhelpful given the comments I have made earlier in these reasons about the misleading nature of that disclosure.

[83] Apart from this non-disclosure, there were many examples of Sabeeh having unreasonably deducted expenses from the business income which he did choose to disclose to the court. I provide only one example of these unreasonable deductions – which I consider to be representative of other such instances – as there were a great number of them. He deducted the cost of a hotel room in the same neighbourhood as his home, claiming it to be a "travel expense", declaring that the elevator in his apartment building was broken and he needed to go somewhere to have a nap before meeting with a client.

[84] Where a payor claims business expenses and fails to provide meaningful evidence of their reasonableness, the court may make an adverse inference against the payor in determining his income. Favero v. Favero, 2013 ONSC 4216.

[85] The court's inclination is to impute income to Sabeeh at the high end of the survey, given his evasiveness and his almost complete lack of credibility, as well as his failure to comply with the financial disclosure requirements of the Rules for the year 2017. However, I have decided to take a more modest approach and impute an income to him in the amount of $130,000. This represents the approximate mid-point between the two above-mentioned survey figures of $85,000 at the lower end, and $174,000 at the higher end.

5: CHILD SUPPORT

[86] The child support amounts which I will order are based on my own Divorcemate calculations which I am appending to these reasons. The calculations include support based on a combination of the CSG table amounts as well as the CSG section 7 expenses.

[87] Sabeeh's line 150 income for his last disclosed tax year, namely, 2016, was $11,000. I have imputed income to him at $130,000. According to the Divorcemate calculations, the difference, namely $119,000 is grossed-up to take into account the fact that Sabeeh is not paying income taxes on that difference. This produces a CSG income amount for support of $202,065, and a corresponding table amount of support of $4,123 per month.

[88] But Amber sought table support based only on an "employment income" of $175,000. The table amount for support at that level of employment income is $3,647.00. Had Amber sought the higher table amount of support based on grossing up Sabeeh's undeclared income I would have been inclined to order that amount. However, because she did not, I will limit my CSG table support order to the amount she sought, namely, $3,647.

[89] I turn next to the claimed CSG section 7 expenses. Amber is claiming two school-related expenses for the children. The two youngest children attend Muslim school. The parents had made the decision to send them to Muslim school prior to their separation. Sabeeh does not deny this. The older two children did the same, remaining in Muslim school until the 8th grade, and then moving on to the public school system for high school. I find that it is in the best interests of the two younger children to remain where they are, and that Sabeeh should contribute his pro rata share to that expense.

[90] The cost of this private schooling for the two children is $840 per month, for a 10-month school year. This equates to $8,400 annually.

[91] In addition, the two older children began taking tutoring in mathematics and science two years before they started high school, again, prior to the parties' separation. The children have specifically asked to continue with tutoring as those are their two weakest subjects, which they wish to improve upon. Sabeeh does not deny this. I find that tutoring is in the best interests of the children and that Sabeeh should contribute toward that cost on a pro rata basis.

[92] Tutoring costs $120 per month per child, for a total of $240 per month. Over a 10-month school year this amounts to $2,400.

[93] Accordingly, the total of the section 7 expenses which I am prepared to allow for support purposes is $10,800. Because I intend to award spousal support at the high end of the Spousal Support Guideline ("SSAG") formula, Sabeeh's contribution toward section 7 expenses will be $784 per month.

[94] Total monthly child support payable by Sabeeh will therefore be $4,431 per month ($3,647 + $784).

[95] From the evidence at trial, I recognize that university expenses are likely in the offing in the near future for the older children. This will necessarily increase the father's section 7 expense contribution.

6: SPOUSAL SUPPORT

6.1: The Law

[96] Section 30 of the Family Law Act ("Act") states:

30. Obligation of spouses for support.— Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.

[97] There is a presumption that spouses owe one another a mutual duty of support. There are essentially three bases upon which to make a claim for spousal support – contractual, compensatory and non-compensatory (needs-based).

[98] These concepts were recognized by the Supreme Court of Canada in the leading cases of Bracklow v. Bracklow, [1999] 1 S.C.R. 420, 236 N.R. 79, 120 B.C.A.C. 211, 63 B.C.L.R. (3d) 77, [1999] 8 W.W.R. 740, 196 W.A.C. 211, 169 D.L.R. (4th) 577, 44 R.F.L. (4th) 1, [1999] S.C.J. No. 14, 1999 Carswell BC 532, and Moge v. Moge, [1992] 3 S.C.R. 813, 145 N.R. 1, 85 Man. R. (2d) 161, [1993] 1 W.W.R. 481, 30 W.A.C. 161, 99 D.L.R. (4th) 456, 43 R.F.L. (3d) 345, [1992] S.C.J. No. 107, 1992 Carswell Man 143.

[99] In the present case, my finding that Amber is entitled to spousal support is based on both the compensatory model as well as the needs-based model. I will expand on this later in these reasons.

[100] Subsection 33(8) of the Act sets out the purposes of an order for spousal support:

(8) Purposes of order for support of spouse.— An order for the support of a spouse should,

(a) recognize the spouse's contribution to the relationship and the economic consequences of the relationship for the spouse;

(b) share the economic burden of child support equitably;

(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and

(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).

[101] And subsection 33(9) of the Act sets out the factors that the court is to take into account in assessing the amount of support to be paid:

(9) Determination of amount for support of spouses, parents - In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including,

(a) the dependant's and respondent's current assets and means;

(b) the assets and means that the dependant and respondent are likely to have in the future;

(c) the dependant's capacity to contribute to his or her own support;

(d) the respondent's capacity to provide support;

(e) the dependant's and respondent's age and physical and mental health;

(f) the dependant's needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;

(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;

(h) any legal obligation of the respondent or dependant to provide support for another person;

(i) the desirability of the dependant or respondent remaining at home to care for a child;

(j) a contribution by the dependant to the realization of the respondent's career potential;

(k) Repealed: 1997, c. 20, s. 3 (3).

(l) if the dependant is a spouse,

(i) the length of time the dependant and respondent cohabited,

(ii) the effect on the spouse's earning capacity of the responsibilities assumed during cohabitation,

(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,

(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,

(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family's support,

(v.1) Repealed: 2005, c. 5, s. 27 (12).

(vi) the effect on the spouse's earnings and career development of the responsibility of caring for a child; and

(m) any other legal right of the dependant to support, other than out of public money. R.S.O. 1990, c. F.3, s. 33 (9); 1997, c. 20, s. 3 (2, 3); 1999, c. 6, s. 25 (6-9); 2005, c. 5, s. 27 (10-13).

6.2: Amber's Ability to be Self-Supporting

[102] Sabeeh says that Amber should be imputed with an income of $30,000. He does not dispute Amber's significant hearing loss during her pregnancy in 2009. However, he does state, without any evidence:

I thought that the infection could have been handled more skillfully despite the pregnancy, had she received proper medical advice from doctors about the medication.

[103] He then goes on to state that despite that hearing loss, she was not prevented from remaining gainfully employed, nor has it had an impact on her ability to work because "she does not use hearing aids at work or at the home."

[104] At the time of her employment at Allergen, the mother was earning $49,000 yearly as an administrative assistant.

[105] In fact, the mother testified that she did return to work after her miscarriage resulting from the serious infection. However, she testified that when she returned to work, the quality of her performance deteriorated because of her hearing loss.

[106] She became pregnant again shortly afterwards and took another maternity leave in 2012. However, when she returned to work following that maternity leave, her employer let her go as part of a general downsizing of jobs. She received a severance in the amount of $35,000, all of which she used to help pay down the mortgage on the family home.

[107] M., the youngest child was born in 2012. The mother has not worked since M.'s birth, in large part, because she has two young children to care for, as well as the two older children. The youngest child is currently enrolled in senior kindergarten.

[108] Following the separation of the parties, she did begin to look for some form of employment. However, she could not work regular 9 to 5 hours because she was required to pick up the children from school at 3:00 p.m. Therefore, any job would have to allow her to leave in sufficient time to be home by 2:30 p.m.

[109] The school which the younger children attend does not have a daycare program, so that it would not be an option for them to remain behind after their regular classes come to an end which would otherwise enable mother to look for a job with regular hours.

[110] Furthermore, mother's 60% hearing loss poses certain barriers for her. For example, she said that although she did return to Allergen following that hearing loss she was less able to function well in meetings as her ability to hear had declined. This is an ongoing problem for her, and a problem which creates some embarrassment for mother in her potential job searches.

[111] Mother currently works as a volunteer in the youngest child's school. She does this in order to remain involved and active, and because she says she is unable to otherwise obtain gainful employment.

[112] Amber is now 45 years old. She has not been gainfully employed for about 6 years. She has no professional designations. She has a physical disability which, although it is not an absolute bar to gainful employment, does present as a barrier to seeking out and obtaining certain kinds of employment. She is the primary caregiver for four children, two of whom are respectively seven and five years of age.

[113] Furthermore, Sabeeh has minimal access to the children. This places an added burden on the mother in terms of her overall childcare responsibilities, including the time required to devote to those responsibilities. It also places an added financial burden on her, certainly as compared to families where the non-custodial parent may have the children perhaps 20%-40% of the time, during which time that parent would be paying for meals, entertainment, and other incidental expenses which typically arise during access visits.

[114] Based on all of the foregoing, I find that Amber is not currently capable of obtaining any meaningful gainful employment and, accordingly, her sole source of income is the rental income in the amount of $12,000 which she currently receives by renting out a portion of her family home.

[115] Amber gave birth to four children and she remained home to care for them variously throughout the parties' marriage. Her workplace losses, resulting from long periods of absences during maternity leaves has had the effect of diminishing her income-earning capacity. On that basis, I find that she is entitled to support using the compensatory model of spousal support as outlined in the case law referred to earlier in these reasons.

[116] Furthermore, she is entitled to support because she has need. Her physical impairment, her age, her current 6-year absence from the work force, her lack of any professional qualifications, and the ages of her two younger children all adversely impact her ability to find gainful employment and work toward self-sufficiency.

[117] Even if the court were to impute some level of income to Amber, that income would be very modest. And the gap between that modest income and the income I have imputed to the father would be sufficiently large such that Amber would nevertheless be entitled to spousal support. That said, and for the reasons I have articulated, the court is not prepared at this time to impute any income to mother apart from the rental income of $12,000.

[118] Once entitlement to spousal support has been decided by the court, the court should then have regard to the amount of that support, taking into account the calculations produced by the SSAG. Fisher v. Fisher, 2008 ONCA 11

[119] In considering the amount of spousal support payable, the imputation of income to the support payor for child support purposes is equally applicable for spousal support purposes. See Rilli v. Rilli, [2006] O.J. No. 2142 (SCJ); Perino v. Perino, [2007] O.J. No. 4298 (SCJ)

[120] As I noted earlier, Amber claimed spousal support in the amount of $1,474 per month. However, this was based on her submitted Divorcemate SSAG calculations which did not take into account Sabeeh's obligation to pay toward the CSG section 7 expenses, an obligation which I have concluded that he owes to his children.

[121] I refer again to Schedules "A" and "B". In Schedule "A", Sabeeh's imputed income is grossed up to reflect the court's finding that he has imputed income of $130,000 but pays income taxes on only $11,000. In that calculation, the high end of spousal support is $1,240 per month.

[122] In Schedule "B", Sabeeh's income is shown as "employment income" of $175,000. In that scenario, the high end of spousal support is $1,012 per month.

[123] For the reasons which I have articulated, I conclude it is fair and just to award spousal support to Amber at the high end of the SSAG calculations. She has been severely disadvantaged by the factors which I have discussed earlier. She may never be capable of returning to the work force. If she is able to become gainfully employed in the future, it would likely be difficult for her to earn the present-dollar value of her 2007 income of $49,000 per year.

[124] The two options open to the court are based on the two above-referenced SSAG calculations. Schedule "A" would produce a spousal support order of $1,240 per month. Schedule "B" would produce a spousal support order of $1,012 per month. In the circumstances of this case where the father is imputed at a substantial income and the mother has very significant child care responsibilities, I find that it is fair and just to award her spousal support in the amount of $1,240 monthly.

[125] In making such an award, Sabeeh would have approximately 40% of the parties' net disposable income ("NDI"), to support only himself. Amber would have approximately 60% of the parties' NDI to support herself and her four children, including the cost involved in meeting the section 7 expenses for her children. In my view that result is more than fair to the father.

[126] The SSAG calculations reveal that Amber is just short of reaching the threshold of the "Rule of 65" which would provide for spousal support to be paid for an indefinite duration. The Rule of 65 recognizes that the combination of the age of the recipient spouse together with the duration of the marriage qualifies as a long-term marriage which, in turn, produces a spousal support order of indefinite duration, not subject to review. In the present case, the combination of those two numbers add up to 63, just short of qualifying as a long-term marriage, and indefinite spousal support. The Divorcemate SSAG states that the resulting range of spousal support is:

For an indefinite (unspecified) duration, subject to variation and possibly review.

[127] In this regard, I refer once again to Fisher v. Fisher, supra, where that court stated, at paragraphs 107 and 108 as follows:

[107] While the "rule of 65" does not apply in this case, the general principle that it adopts in classifying marriage based on a spouse's age at separation is still relevant. This is because age is a strong indicator of an individual's ability to become self-sufficient.

[108] In circumstances such as these, where the marriage falls just outside of the Guidelines' classification of a "long-term" marriage, a court may still decide that an indefinite support order is appropriate. Similarly, a court may decide that limited-term support is appropriate even though the period of cohabitation is 20 years or more. This is because, as the Guidelines note, while courts should consider the age of the parties and the duration of the marriage, they must also consider all other relevant circumstances.

[128] I find the Court of Appeal's comments to be relevant to the facts of this case. In that regard, my order for spousal support will be for an indefinite duration, but with leave to bring a review after five years.

7: CONCLUSION

[129] Amber's court application was issued April 12, 2016. She seeks both spousal and child support to be effective from February 1, 2016, being the first day of the month following separation. For reasons which he never explained to the court, the father requests that support commence on August 1, 2016. In fact, he did not pay any support whatsoever to the mother for several months following the separation in January 2016. And then when he did begin to pay support in August 2016, the amounts were relatively minimal. I find that it is reasonable to require the father to pay both child and spousal support to the mother beginning February 1, 2016.

[130] Accordingly, the court makes the following order:

(1) Commencing February 1, 2016, the father shall pay the mother support for four children, based on father's imputed income of $175,000, in the amount of $4,431 per month, calculated by a total of the two following amounts:

(a) The Child Support Guidelines table amount of support in the amount of $3,647 per month; and

(b) The Child Support Guidelines section 7 expenses in the amount of $784 per month.

(2) The father shall be given credit for any child support or spousal support amounts he has paid to the mother since February 1, 2016. These amounts will be reflected in a statement prepared by the mother and provided by her to the Family Responsibility Office, in order to permit that Office to prepare an accurate statement of arrears of support.

(3) The costs order of Justice Zisman dated September 7, 2017, in the amount of $6,853.84 shall be enforced by the Family Responsibility Office as a support order.

(4) Commencing February 1, 2016, the father shall pay spousal support to the mother in the amount of $1,240 per month.

(5) Spousal support shall be for an indefinite duration, subject to leave for either party to bring a review application after June 1, 2023.

(6) By June 30th of each year, commencing in 2019, the father shall make full financial disclosure to the mother for so long as he is obligated to make support payments, whether child support or spousal support. Financial disclosure shall be in accordance with the requirements set out in the Child Support Guidelines.

(7) By June 30th of each year, commencing in 2019, the mother shall make the same financial disclosure to the father for so long as she is seeking a continuation of either spousal support or section 7 expenses in accordance with the Child Support Guidelines. The mother shall also comply with all reasonable requests made by the father for proof of ongoing section 7 expenses incurred for the benefit of the children.

[131] If either party finds a mathematical error in this decision, or an inputting error in the software calculations attached to this decision, they may serve and file written submissions within 21 days, submissions to be filed at the trial coordinators' office attached to a 14B motion form, either hand delivered or by fax.

[132] Based on the father's past conduct, including his non-compliance with Justice Zisman's order, as well as the unreasonable position he took in this trial, the court has little confidence that the father will begin to pay the support and costs which are reflected in the order I am now making. Accordingly, this matter should be enforced immediately by the Director of the Responsibility Office ("Director"). Court staff are directed to send a copy of this decision to the Director.

[133] In the event that mother seeks her costs of this trial, she shall submit her costs submissions within 21 days following the later of the date of this order or the date of any response by the court to a request by either party to reconsider the order based on submissions that there are either arithmetical errors or software inputting errors leading to the amounts reflected in my order. The father's responding submissions to the mother's costs submission shall be filed within 14 days following mother's filings. Costs submissions by the parties shall not exceed three pages, exclusive of any attachments and authorities relied upon. The submissions shall be double-spaced and shall be in 12-point font.

Released: May 31, 2018

Signed: Justice Robert J. Spence