Court File and Parties

Date: November 20, 2020

Court File No.: DR40088-20

Ontario Court of Justice

Between:

Asha Mohamed Acting in Person Claimant

- and -

Ilyas Nafyar Osman Acting in Person Respondent

Heard: March 31, September 29 and November 4, 2020

Justice: S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] The claimant has brought an application pursuant to the Interjurisdictional Support Orders Act (ISOA) seeking an order that the respondent pay her child support for three of the parties' children, who are ages 7, 4 and 2 (the children).

[2] The respondent initially did not respond to the claimant's application.

[3] The court first considered this matter on March 31, 2020 and released an endorsement on April 3, 2020. See: Mohamed v. Osman, 2020 ONCJ 172.

[4] The court wrote that it ordinarily would have determined the case based on the written material filed by the claimant, as the respondent had not filed any written response and had not requested an oral hearing by the time limit of March 2, 2020. However, it noted that the reality of ISOA cases is that many self-represented litigants do not file written materials in advance of the notice of hearing date and just attend on the return date. Since the COVID-19 pandemic created considerable obstacles for a self-represented litigant, the court decided to order a lengthy adjournment of the hearing and give the respondent one final opportunity to file the required responding material.

[5] Pursuant to its authority under clause 14 (1) (a) of the ISOA, the court ordered the respondent to pay temporary child support to the claimant of $517 (Canadian) each month, starting on February 1, 2020, based on an imputed annual income of $25,000. The respondent was given a lengthy extension of time to serve and file written responding material, and if he chose to, request an oral hearing. The matter was adjourned until September 29, 2020.

[6] The respondent did not file any responding material, but he did attend on the return date by teleconference. The court adjourned the matter and gave the respondent until October 27, 2020 to file specific financial disclosure. The court set an in-person hearing date for November 4, 2020 to give the respondent the opportunity to provide oral evidence.

[7] The respondent did not file any of the financial disclosure, as ordered, but did attend at court on November 4, 2020. He was assisted by a Somalian interpreter. The respondent provided oral evidence and filed some limited financial disclosure. He proposed to pay the claimant child support of $500 each month on an ongoing basis.

[8] The respondent testified that he had been making support payments directly to the claimant and that he had proof of this. However, he did not bring any of that proof with him to court. The court gave him an extension until November 18, 2020 to file documentary evidence of payments he has made to the claimant since September 1, 2019 – the date from when the claimant asks that support starts.

[9] The respondent filed proof of the direct payments to the claimant, as requested.

[10] The issues for this court to determine are:

a) What is the respondent's annual income for the purpose of the support calculation?

b) When should the child support order start?

c) What credits should the respondent receive for direct support payments made to the claimant?

Part Two – The Evidence

[11] The claimant is 32 years old. The respondent is 30 years old.

[12] The claimant lives in Minnesota, in the United States. The respondent lives in Ontario.

[13] The parties married in Minnesota in January 2013. The parties are the biological parents of the children.

[14] The respondent moved to Toronto in 2017 and has remained in Toronto since then. He plans to continue to live in Canada.

[15] The respondent advised the court that he and the claimant now have a fourth child together, who is 6 months old. The claimant has not made a claim for this child.

[16] The children have remained with the claimant in Minnesota.

[17] The claimant completed her application for support in Minnesota on September 18, 2019.

[18] The notice of hearing was issued in this court on January 22, 2020.

[19] The respondent was served with the application and notice of hearing on January 29, 2020.

[20] The claimant deposed that she has just started working part-time in student transport. She earned annual income of less than $9,000 (U.S. funds) in 2019.

[21] The respondent deposed that he works as an Uber driver. He testified that since the start of the pandemic he has driven part-time and has received CERB benefits.

[22] The respondent claimed that he was making payments of $600 each month (U.S. funds) to the claimant from September 2019 until the pandemic started. Since then, he said that he has been paying her between $300 and $500 each month.

[23] The respondent subsequently filed documentation showing that he directly paid the claimant the amount of $2,781 (U.S. funds) between September 1, 2019 and January 30, 2020. Using a rough conversion rate of 25%, this comes to $3,476 in Canadian dollars. The respondent also showed that he directly paid the claimant $1,424 in March and April of 2020 ($1,780 Canadian) and $1,699 from July to November 2020 ($2,124 Canadian).

Part Three – Statutory Pathway

[24] Clause 37 (4) (a) of the Ontario Family Law Rules (the rules) provides that the respondent shall file within 30 days after service of the notice of hearing an Answer in Form N under the general regulation[1], an affidavit setting out the evidence upon which he relies and a financial statement in Form K.

[25] Subrule 37 (5) of the rules sets out that the respondent is required to file a financial statement whether he intends to dispute the claim or not.

[26] Subrule 37 (7) of the rules sets out that unless the court orders otherwise under subrule 37 (9), the application shall be dealt with on the basis of written documents without the parties or their lawyers needing to come to court.

[27] Subrule 37 (9) of the ISOA sets out that the court may order an oral hearing, on the respondent's motion or on its own initiative, if it is satisfied that an oral hearing is necessary to deal with the case justly. The court determined that permitting the respondent to give oral evidence in this case was just. He is an unsophisticated litigant and English is his second language. Oral testimony gave him the opportunity to provide the court with his evidence with the assistance of an interpreter and answer the court's questions.

[28] Paragraph 1 of section 13 of the ISOA sets out that in determining a child's entitlement to support, the Ontario court shall first apply Ontario law, but if the child is not entitled to support under Ontario law, the Ontario court shall apply the law of the jurisdiction in which the child is habitually resident.

[29] Paragraph 3 of section 13 of the ISOA sets out that if entitlement to child support is established, the Ontario court shall apply Ontario law in determining the amount of support for the claimant.

[30] Section 14 of the ISOA sets out the types of orders the court can make as follows:

Order

14 (1) On the conclusion of a hearing, the Ontario court may, in respect of a claimant, a child or both,

(a) make a support order;

(b) make a temporary support order and adjourn the hearing to a specified date;

(c) adjourn the hearing to a specified date without making a temporary support order; or

(d) refuse to make a support order.

Retroactivity

(2) The Ontario court may make a retroactive support order.

Periodic Payments or Lump Sum

(3) A support order may require support to be paid in periodic payments, as a lump sum, or both.

Choice of Law

(3.1) A support order shall specify the law applied in making the order, and if the order does not specify the law applied, the order is deemed to have been made under Ontario law.

Reasons for Refusal

(4) If the Ontario court refuses to make a support order, it shall give written reasons for its decision and send them to the designated authority.

Part Four – Child Support Payable

4.1 Legal Considerations

[31] Section 31 of the Family Law Act (the Act) sets out that every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her eligible children.

[32] Subsection 31 (7) of the Act sets out that an order for the support of a child should recognize that each parent has an obligation to provide support for the child and should apportion the obligation according to the Child Support Guidelines (the guidelines).

[33] Subsection 31 (11) of the Act sets out that a court making an order for the support of a child shall do so in accordance with the guidelines.

[34] Clause 34 (1) (f) of the Act, provides the jurisdiction for a court to order that support be paid in respect of any period before the date of the order.

[35] Subsection 3 (1) of the guidelines reads as follows:

Presumptive Rule

3 (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and

(b) the amount, if any, determined under section 7.

[36] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. See: Drygala v. Pauli, [2002] O.J. No. 3731 (Ont. C.A.).

[37] In determining what income to impute, the court must have regard to the payor's capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living enjoyed during the parties' relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson.

[38] A person's lifestyle can provide the basis for imputing income. See: Aitken v. Aitken, [2003] O.J. No. 2780 (SCJ); Jonas v. Jonas, [2002] O.J. No. 2117 (SCJ); Price v. Reid, 2013 ONCJ 373.

4.2 The Evidence

[39] The claimant had little information about the respondent's income. She deposed in September 2019 that he is a taxi driver, gave her $600 (U.S. funds) monthly for a few months in early 2019 and then was able to afford a trip to Africa.

[40] In assessing the respondent's annual income at $25,000, starting on February 1, 2020, for the purpose of the temporary support order, the court wrote the following at paragraphs 26 and 27 of its April 3, 2020 endorsement:

26. Absent the COVID-19 pandemic, based on this information, the court would have assessed the respondent's annual income at $40,000. However, the court is very aware that the pandemic is having a detrimental financial impact on taxi drivers and will make a more conservative estimate of the respondent's income on a temporary basis.

27. On a temporary basis, the court will impute the respondent's annual income at $25,000. This can be adjusted on the return date regarding the amount and the start date. The court wants the respondent to know that this amount might be fixed at a much higher amount if he does not file the required financial documentation.

[41] The respondent testified that he worked as a scaffolder in Minnesota. When he came to Canada, he drove a taxi until the end of 2018. He started to work for Uber in 2019.

[42] The respondent continues to work part-time as an Uber driver. He said that work slowed down once the pandemic started. He said that he has been earning about $1,000 each month as an Uber driver, plus the $2,000 monthly federal CERB benefit.

[43] The father filed his 2019 income tax return showing a line 150 income of $8,353.

[44] The respondent proposes to pay child support of $500 each month.

4.3 Analysis

[45] The respondent's stated income in his 2019 income tax return appears to have little relationship to his lifestyle. He could not explain how he was supporting himself on such little income.

[46] The respondent confirmed that he travels to Africa every year for about one month to visit his family (except in 2020). He pays for these trips. He attested that his food, clothing and housing expenses were about $1,900 each month. He was paying monthly child support of about $600 (U.S. funds) prior to the pandemic.

[47] The respondent did not file a financial statement. He would have other monthly expenses.

[48] The respondent would not be able to maintain these expenses based on his stated income.

[49] The respondent has only one debt of $1,700 and about $5,000 in his bank account. He is not going into debt to maintain his expenses.

[50] It is apparent that the respondent earns much more than he claims in his income tax return.

[51] The court will impute the respondent's annual income at $36,000 for support purposes. This is consistent with his lifestyle and the present amount he is earning, through a combination of employment income and federal benefits. The court has also considered that most of the income the respondent earns is tax-free, as he is not declaring most of his income in his tax return.

[52] Although the parties now have four children, the claim before the court is for only three children. The court will order the guidelines table amount for the three children, based on the respondent's assessed income. This amount is $737 each month.

Part Five – When Should Child Support Start?

[53] The claimant is seeking child support from September 2019, the month when she completed her ISOA application in Minnesota. This is a retroactive support claim as the respondent was served with the application on January 29, 2020.

[54] The respondent asks that child support start on February 1, 2020 – just after he received notice of the claimant's support claim.

[55] Ordinarily, the court would have started the support order on September 1, 2019, as the claimant is making a modest retroactive support claim. However, in this case, the respondent has demonstrated that he voluntarily paid the claimant support in an amount very close to what the court would have ordered for this retroactive period. The total amount of child support that the respondent would have been required to pay from September 2019 until the end of January 2020 (5 months), based on the income imputed to the respondent, would have been $3,685. He paid $3,476. That is close enough.

[56] The court will order that support start on February 1, 2020.

Part Six – Support Credits

[57] The total support accumulated since February 1, 2020 (10 months at $737 each month) is $7,370.

[58] As set out in paragraph 23 above, the respondent has made direct payments to the claimant of $3,904 (converted to Canadian funds) since February 1, 2020. He is to receive credit for these payments.

[59] The respondent shall also be credited for any support payments made after February 1, 2020, that were processed through the Family Responsibility Office.

Part Seven – Conclusion

[60] A final order shall go on the following terms:

a) The respondent shall pay child support to the claimant in the amount of $737 (Canadian) each month, starting on February 1, 2020. This is the guidelines table amount for three children, based on the respondent's annual income imputed at $36,000.

b) The respondent shall be credited with the amount of $3,904 paid directly to the claimant.

c) The respondent shall also be credited with any support payments made after February 1, 2020, that were processed through the Family Responsibility Office.

d) A support deduction order shall issue.

e) The respondent shall provide the claimant with complete copies of his income tax returns and notices of assessment by June 30th each year.

f) This endorsement shall be sent by court staff to the parties and to the Designated Authority of Ontario - Family Responsibility Office, pursuant to the ISOA.

[61] The respondent is cautioned that he must make all future support payments to the Family Responsibility Office, not directly to the claimant. If he does not do this, he runs the risk of not receiving credit for those payments.

[62] The respondent is also cautioned that he now has a support obligation for four children. The court only dealt with the three children before it. However, if the claimant makes a claim for the fourth child, there is a very good chance that the court will order retroactive support for that child, as the respondent has notice of his support obligation. For his information, the guidelines amount for four children at his assessed income is $893 (Canadian) each month.

Released: November 20, 2020

Justice S.B. Sherr

[1] The general regulation is Ont. Regulation 55/03 (General) made under the ISOA.