Court File and Parties

Ontario Court of Justice

Date: 2020-08-24

Court File No.: Toronto D21359/18

Between:

Morgan Ashlee Lindo Applicant (Mother)

— AND —

Talal Sobhi Abdelhameid Respondent (Father)

Before: Justice Robert J. Spence

Trial conducted electronically by Zoom on: August 20, 2020

Reasons for Judgment released on: August 24, 2020

Counsel:

• Ms. Katie Gaboury, counsel for the applicant mother
• Mr. Sheldon Tenenbaum, counsel for the respondent father

Reasons for Judgment

R. J. SPENCE J.:

1: INTRODUCTION

[1] The applicant mother (mother) seeks child support from the respondent father (father) for the benefit of the parties' child, E., who will be three years old in December 2020.

[2] The mother is asking the court to impute income to the father in the amount of $57,699 annually for the purpose of determining child support.

[3] The mother seeks table support in the amount of $534 per month, pursuant to the Child Support Guidelines (Guidelines). She is not seeking any additional child support on account of Guidelines section 7 expenses.

[4] The father claims to be earning $300 per week, or about $15,600 annually in his part-time job. However, at the outset of trial he said he would be willing to pay support in the amount of $250 per month, based on an annual imputed income in the amount of $29,400. He also sought a credit in the amount of $2,400, being one-half of the monies in the joint account existing at the time of separation which he claims the mother removed entirely.

[5] Both parents agree that whatever support is ordered by the court, the commencement date for support should be January 1, 2018.

[6] The sole issue for this trial is the determination of the father's income for child support purposes.

[7] The parents consented to this trial being conducted remotely, through Zoom.

2: BRIEF BACKGROUND

[8] The parties began their relationship in or about March 2017. Their baby boy was born December 17, 2017.

[9] The parties separated when the father moved out of the mother's home in October 2017, while the mother was pregnant with their child.

[10] The mother has two older children from a prior relationship. Those children are not the subject of this proceeding.

[11] The father has three children from a prior relationship. Those children are not the subject of this proceeding.

[12] The mother commenced her Application in this court in August 2018. In that Application she initially sought:

1. Custody of the child, as well as incidents of custody;
2. Child support; and
3. A restraining order.

[13] The father was served with the Application, but he did not initially participate in the proceedings.

[14] On December 27, 2018, Justice Carole Curtis made the following temporary order:

1. Sole custody to the mother;
2. No access to the father;
3. Father to pay mother child support in the amount of $534 per month based on an imputed income to the father in the amount of $57,699 annually;
4. Father not to remove the child from the Greater Toronto Area (GTA); and
5. Father not to come within 500 metres of the mother or to communicate with her.

[15] The father subsequently retained counsel and he filed his Answer, in which he sought:

1. An order on consent for sole final custody in favour of the mother;
2. An order for specified access to the child;
3. An order on consent that he not remove the child from the GTA; and
4. A dismissal of the mother's claim for a final restraining order.

[16] On April 3, 2019, Justice Curtis granted the following temporary and final orders on consent of the parties:

1. Final order granting sole custody and specified incidents of custody to the mother;
2. Final order granting primary residence of the child to mother;
3. Temporary order permitting mother to travel with the child without the father's consent; and
4. Filing timelines for the father's material.

[17] On February 4, 2020, Justice Curtis granted the following final order on consent of the parties:

1. Mother at liberty to travel with the child outside Canada without the consent of the father;
2. Father not to remove the child from the GTA without the mother's written consent; and
3. Father to have supervised access to the child at Access for Parents and Children Ontario (APCO).

3: THE LAW

[18] The father has filed financial documents, including income tax returns and notices of assessments from Canada Revenue Agency which suggest that during the past three or four years his income has been less than minimum wage.

[19] Nevertheless, for child support purposes, the father has stated to the court that he is prepared to pay child support based on income approximating minimum wage, as set out in the introduction to these reasons.

[20] However, because the mother is asking the court to impute a significantly higher level of income to the father, I turn to the law respecting imputation of income.

[21] Section 19 of the Guidelines 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.

[22] 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.

[23] The leading case on the imputation of income in Ontario is Drygala v. Pauli (2002), 29 R.F.L. (5th) 293 (Ont.C.A.).

[24] In deciding what is meant by "intentionally" at subparagraph 19(1)(a) of the CSG, the Court states, at paragraph 28:

Read in context and given its ordinary meaning, "intentionally" means a voluntary act. The parent required to pay is intentionally under-employed if that parent chooses to earn less than he or she is capable of earning. That parent is intentionally unemployed when he or she chooses not to work when capable of earning an income. The word "intentionally" makes it clear that the section does not apply to situations in which, through no fault or act of their own, spouses are laid off, terminated or given reduced hours of work.

[25] In determining whether the parent is "intentionally" underemployed or unemployed, there is no requirement to find bad faith on the part of that parent. (Drygala, paragraph 36)

[26] The Court of Appeal is effectively stating that child support obligations will be based on the payor's capacity to earn an income.

[27] At paragraph 44 of Drygala, supra, the court states:

[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.

4: ANALYSIS

4.1: The Father's Credibility

[28] An assessment of the father's credibility is crucial to the court's ultimate findings about the father's capacity to earn an income.

[29] The starting point for this assessment is an examination of the father's own evidence. Some of his evidence is as follows.

[30] In the father's Answer dated February 8, 2019 he makes the following statements (extracted verbatim from his Answer):

1. The Respondent Father is a trained paramedic.
2. He graduated in 2011 in Windsor.
3. He then moved to Newfoundland for eight months and worked as a paramedic.
4. The Respondent then moved to another paramedic position, where he worked on oil rigs for three and a half years.
5. As a full-time paramedic, he was earning $80,000 a year.
6. In 2016 the Respondent father began working in sales for gas and electricity.
7. This was a commission-based job where he was moving back and forth between Toronto and Windsor.
8. Income was paid to his corporation in the gross amount of $90,000.
9. In 2017 the Respondent father decided to get involved in crypto currency.
10. He heavily invested in a mining corporation and bit connect.
11. Unfortunately, Bit Connect turned out to be a Ponzi scheme and he lost everything.
12. At the time, he was living in a luxury condo, on the Lakeshore, and overnight he ended up living in his car.
13. The Respondent is actively seeking employment in the paramedic field.
14. At this time, he is paying child support in the amount of $100 for the three children he has with [the other mother].

[31] The father swore an affidavit on August 8, 2020 which constituted his evidence in chief in this trial.

[32] In that affidavit, he stated:

I am looking for paramedic work, but as I will explain, it is my belief that ship has sailed.

[33] The father then sets out why he believes it would be difficult for him to obtain employment in the paramedic field, including his past criminal record, his need to requalify, his need to study "a map of the city and know its streets and roads", and his lack of experience working as a paramedic in government jobs.

[34] Nowhere in his evidence – either in his affidavit or in his oral testimony – does the father state that any of these barriers act as an absolute bar to becoming requalified as a paramedic.

[35] Furthermore, it would be illogical for the court to come to this conclusion given the father's own statement in his Answer that he is "actively seeking employment in the paramedic field." Whatever so-called barriers exist for him as set out in his affidavit dated August 8, 2020 would have been the same barriers which existed when he prepared his Answer in February 2019. In fact, his criminal record for convictions of uttering threats and for forgery occurred in 2015 and 2011 respectively, so that they either predate his employment as a paramedic or they occurred during the years he was working as a paramedic.

[36] The father says that he applied for a criminal record "suspension" five or six months ago in order to make it easier to become recertified as a paramedic. He was asked on cross-examination why he didn't apply earlier, for example, in 2019 or 2018 or 2017? He responded, because "I have four kids".

[37] He does not have custody of the child who is the subject of this proceeding; nor does he see that child.

[38] He does not have custody of the three children from his prior relationship. In fact, the mother has had sole custody of those children since 2016.

[39] He has a legal obligation to support all four of those children. If he was truly focused on his four children, he would be doing whatever he was capable of in order to earn an income to support those children. His explanation for doing nothing about seeking a record suspension/pardon until just recently makes little sense.

[40] If father had wanted the court to conclude that one or more of his stated so-called barriers act as absolute bars for him to be hired as a paramedic, he ought to have either filed evidence to that effect or given cogent and believable oral testimony to explain why that is the case. He failed to do so.

[41] Nor would he have stated, as he did, that he was actively seeking out employment as a paramedic if he truly believed that the ship had sailed.

[42] As for the father's need to pass exams and requalify, the father gave no evidence why he would be unable to do this.

[43] As to the requirement to learn city streets, every smart phone has a built-in GPS. The father has access to a smart phone. That is how he connected to this Zoom trial.

[44] In fact, he testified that he applied for reinstatement of his paramedic licence in British Columbia two months ago. It makes little sense that he would apply for reinstatement if he was sincere in the belief that the barriers to requalification were insurmountable.

[45] All of this leads the court to conclude that the father's evidence about his ability to work as a paramedic was inconsistent, self-contradictory and, overall, not believable.

[46] The father's evidence lacked credibility in several other respects.

[47] In his sworn financial statement, he listed as an asset one of his corporations. However, he failed to list the other two corporations which he owned. His explanation for this omission when he was cross-examined was, he didn't think those corporations had to be listed on his financial statement if they weren't profitable. And yet, the one corporation which he did disclose is, according to the father, also not profitable. His explanation for failing to make full financial disclosure makes little sense.

[48] He claims to be incapable of obtaining employment more extensive than his current part-time job for 20 hours per week at the rate of $15 per hour. And yet as his own Answer disclosed, he has been involved in a number of different businesses, including his own business in sales where he grossed $90,000.

[49] What is his explanation for his unwillingness to return to that sales business? He does not think the business is ethical. There is no evidence to support that claim apart from his bare assertion.

[50] The father would rather have the court conclude that it is instead more ethical for him to live out of his car, and not pay any child support to the mother, rather than to pursue meaningful income from any of the previous business ventures in which he was engaged, which would thereby enable him to pay support for his child.

[51] The father claims to be the "#1 best selling author on Amazon".

[52] By his own admission, he has published many books.

[53] However, at trial he testified that he gives these books away on Amazon for almost nothing, and that the proceeds from Amazon are only about $30 each month.

[54] While he did produce some bank statements showing deposits from Amazon in small amounts, he did not produce his monthly or yearly statements directly from Amazon which would have disclosed exactly what his sales have been.

[55] His Linkedin page describes him as:

CEO of Visual Marketing Solution . . . a technology company offering the most advanced Wi-Fi location marketing, advertising and analytics platform in the market. . . . the #1 advertising expert in the industry and he has massively helped his clients share their message in a more engaging and powerful way. His clients include executive business consultants, authors, life coaches and entry level internet marketers.

[56] At trial his denied that he has any clients. He said his Linkedin page is more about trying to promote his business. His documentary evidence belies his oral evidence. Which is the court to believe?

[57] He testified that he has been mostly unemployed for the past few years and incapable of finding productive work even though he is able-bodied.

[58] He filed a 24-page typed document listing the names of several hundred businesses which he says he has applied to in order to seek employment. He provided no details of the type of work he applied for, nor the results of his hundreds of applications, except to state that none of his applications bore fruit.

[59] Most significantly, although he claims to have been unemployed – or only marginally employed for the past three or so years, his 24-page list of companies covers only a three-month period, namely, from May 2019 to August 2019. He produced no evidence of jobs he has been seeking apart from this narrow time-period, including the 12 months between August 2019 and the start of this trial in August 2020.

[60] In the court's view, this 24-page list of companies, several hundred in total, covering a period of three months, serves only to make even more suspect the father's sincerity that he is actively seeking gainful employment.

[61] The father claims that he was not living with the mother during 2017 when the mother became pregnant. He claims instead that he was living in Windsor and that he stayed with the mother in Toronto only about two days a week when he otherwise had to travel to Toronto.

[62] In her reply affidavit, the mother filed documentary evidence to the contrary. The father's driver's Licence revealed that he was living with the mother at her address in Toronto. The father's Virgin Mobile account summary also revealed that the father was living in Toronto with the mother.

[63] The father's assertion that he was not living with the mother is not credible.

[64] Following his separation from the mother in October 2017, the father claimed he was homeless and was forced to live out of his car. In fact, the evidence revealed that from November 2017 until March 2018 he lived in a luxury condo on the Lakeshore in Toronto, where he was paying rent in the amount of $2,300 monthly.

[65] He subsequently moved to Windsor where he signed a lease for an apartment in the amount of $1,150 per month, plus utilities. At trial, the father claimed that he paid only a portion of that monthly rent because he had a roommate. However, that person's name was not on the lease. It was the father alone who leased the apartment. And it was the father alone who was required to pay the first and last month's rent on that apartment, totalling $2,300, the payment of which the father acknowledged in cross-examination.

[66] The father claimed that none of his web-based businesses made any money. However, the mother testified that she quit her job at Sick Kids Hospital in Toronto to assist him with the administrative work involved in running his solar panel business.

[67] She said that he was in the business of selling or installing solar panels, and she was assisting with the paperwork involved in that business, including the scheduling of his appointments.

[68] She did this work without any remuneration from the father's business.

[69] The father did not deny this in his evidence.

[70] The father's claim that none of his businesses generated any revenue is not credible.

[71] For a period of time he was receiving social assistance payments from the City of Windsor in Ontario, notwithstanding that he was living in Alberta. The only reasonable inference from this is that he was taking social assistance payments that he was not entitled to receive.

[72] Perhaps one of the most significant reasons that father's evidence lacks credibility stems from his absolute refusal to pay any support for his child from the date of the child's birth to the present, including his failure to comply with Justice Curtis' temporary support order.

[73] What is particularly troubling about this refusal is his testimony in which he says that despite the $100 per month support he was ordered to pay to the mother of his other children, he felt that amount was too low, that it was insufficient to support three children, so he has been voluntarily paying $150 or $200 per month to her.

[74] And yet, he fails to reconcile his apparent willingness to be "fair" by making "voluntary" support payments to the other mother, with his refusal to pay any support whatsoever to this mother, for this child. Instead, he simply claims that he'd happily pay support to this mother if he could afford to do so.

[75] If the father were sincere about his desire to pay support for his child, he would have found a way to pay something to the mother, in recognition that his child needs food, clothing and shelter. It is this self-evident lack of sincerity which further undermines the father's credibility.

[76] The foregoing is by no means a complete list of reasons why this court finds the father's evidence to be lacking in credibility. However, these examples are more than sufficient for the court to arrive at that conclusion.

4.2: How Much Income to Impute to the Father

[77] Given the court's conclusion that the father's evidence is not credible, the court is unable to agree with father that his support obligation should be based on a near-minimum wage income.

[78] More specifically, the evidence leads the court to conclude that the father is capable of earning an income considerably more than minimum wage.

[79] Despite the father's assertions to the contrary, the court concludes that the father is either intentionally unemployed or underemployed.

[80] As noted earlier in the extract from paragraph 44 of Drygala, supra, in imputing income to a support payor the court cannot simply pick a number arbitrarily. There must be a rational basis for the income which the court decides to impute.

[81] The father's own evidence is that he has earned $80,000 as a paramedic.

[82] His own evidence is that his sales business grossed $90,000.

[83] His own evidence is that he has been involved in several different entrepreneurial businesses, including the writing and publishing of books. Regardless of the actual sales numbers for these books, the fact that the father has the wherewithal to write a number of books and to become the #1 best selling author on Amazon, tells this court much about the father's capacity to be a productive individual.

[84] Whatever negative conclusions the court has reached about the father's credibility from the evidence in this trial, the father has clearly demonstrated to the court that he is a multi-talented individual. He has gained experience in a number of different fields over his working career.

[85] Following his graduation from high school in 2001 he obtained his Paramedic licence in 2011 and has since been involved in many ventures and projects. His resume reflects not only extensive work experience but also extensive volunteer experience, including volunteering in employment-relevant areas such as the Active Care Response Team from 2016 to the present and Medics for Refugees, also from 2016 to the present.

[86] There is much evidence before the court, almost exclusively from the father's own evidence, which enables the court to conclude that the father has the capacity to earn the amount sought by the mother.

[87] The law on imputing income, referred to earlier, focuses on the individual's ability to earn an income. So, whether the father is actually earning that income at the present time, is not determinative of his child support obligation.

[88] In the court's view, the father has the capacity to earn at least as much as the mother has requested of the court. Based on the evidence in this trial, he is fortunate that the mother did not seek a greater amount to be imputed to him.

5: CONCLUSION

[89] All the foregoing leads the court to conclude that income should be imputed to the father in the amount requested by the mother, namely, $57,699.

[90] As to the $2,400 credit claimed by the father, the evidence on this issue was conflicting. Given the overall lack of father's credibility I am not satisfied that he is entitled to a credit for any of these funds. Quite apart from the conflicting evidence, the fact that the father has not paid the costs previously ordered by Justice Curtis, combined with his refusal to pay any support to the mother would disentitle him, in the court's view, to this requested credit.

[91] I will, somewhat reluctantly, give him credit for the nominal support payment of $100 which the mother acknowledges having received from the father.

[92] The mother did not seek a continuation of the temporary restraining order granted by Justice Curtis. Accordingly, the court will terminate that temporary order.

[93] The court makes the following final order:

1. Father shall pay Child Support Guidelines table support to the mother in the amount of $534 per month for the support of one child, based on income to the father imputed at $57,699, support to commence January 1, 2018.

2. The father shall be given credit for support paid by him to the mother in the amount of $100 since January 1, 2018.

3. The arrears of support as at the date of this order shall be calculated by the Family Responsibility Office, and those arrears of support shall be payable by the father in the amount of $250 per month, commencing September 1, 2020, together with the table amount of support in the amount of $534, for a total of $784 per month.

4. The temporary restraining order granted by Justice Curtis on December 27, 2018 is vacated.

[94] In the event the mother seeks her costs of this proceeding she shall file her written submissions with the trial coordinator, by email, no later than 21 days following the date of this judgment. The father shall have 14 days thereafter to similarly file his responding submissions. Submissions by both parties shall not exceed three pages, exclusive of attachments, which may include a Bill of Costs, authorities relied upon and any Offers to Settle. Submissions to be double-spaced and in 12-point font.

Released: August 24, 2020

Justice Robert J. Spence (Signed electronically)

Footnotes

[1] In her closing submissions mother advised the court that should the court find that the father has accumulated arrears of support, she would be agreeable to payment of those arrears at the rate of $250 per month until fully paid.

[2] The father denies he ever lived with the mother. I will have more to say about this later in these reasons.

[3] Child Support Guidelines, section 1

[4] This would bring the timeline to about 2016

[5] Additional evidence in chief was adduced viva voce from the father at trial.

[6] He used this word but he understood it to mean the same as a "pardon".

[7] As he put it

[8] He states he may have paid a few hundred dollars to the mother, in total, since the date of the child's birth. The mother says that he gave her about $100 as well as two boxes of diapers.