ONTARIO COURT OF JUSTICE

CITATION: Abdullahi v. Warsame, 2021 ONCJ 449
DATE: August 26, 2021
COURT FILE NO. D57043/12

B E T W E E N:

AMINA JAMA ABDULLAHI
ACTING IN PERSON

APPLICANT

• and -

ABDULKADIR WARSAME
ACTING IN PERSON

RESPONDENT

DAWN GOLIN, for the ASSIGNEE, THE CITY OF TORONTO

HEARD: AUGUST 12, 2021

JUSTICE S.B. SHERR

REASONS FOR DECISION

Part One - Introduction

[1] The respondent (the father) has brought a motion to change the child support terms contained in a domestic agreement dated February 3, 2012 (the agreement). The agreement was filed with this court on July 9, 2012 pursuant to section 35 of the Family Law Act (the Act).

[2] The agreement provides that the father shall pay the applicant (the mother) child support in the amount of $849 each month for the parties’ four children. This was the Child Support Guidelines (the guidelines) table amount based on the father’s annual income of $35,800.

[3] The father asked in his motion to change that support be terminated for the parties’ three older children as these children are no longer eligible for support. He also asked, due to his inability to pay support, that no ongoing child support be paid for the parties’ youngest child.

[4] The father asked to retroactively decrease his child support obligation as of January 1, 2013, in accordance with his actual annual income earned from that date. In the alternative, he asked the court to rescind any support arrears found owing. Lastly, he sought an order permitting him to pay the arrears still found owing in small monthly payments.

[5] The mother assigned her interest in support to the City of Toronto (the City) for the period from July 1, 2012 until January 31, 2017. The City’s representative participated at this hearing.

[6] On March 16, 2021, the parties and the City agreed that the three oldest children were no longer eligible for support. They consented to an order to change the agreement as follows:

a) Support for the child Sa. W. be terminated effective July 1, 2016.

b) Support for the child Sh. W. be terminated effective August 1, 2019.

c) Support for the child D.W. be terminated effective April 1, 2021.

[7] The mother and the City both ask that the balance of the father’s motion to change be dismissed.

[8] The court relied on the affidavits filed by the parties and the City and the financial statement filed by the father. The father attached a medical report to one of his affidavits and this was considered. Both parties were permitted to give additional oral evidence at the hearing and to question the other. The City representative was permitted to question the father.

[9] The father had not replied to the mother’s affidavit that contained many allegations about his ability to earn income. The court put these allegations to the father at the hearing and gave him the opportunity to respond.

[10] The parties were both assisted by a Somalian interpreter.

[11] The hearing was scheduled to be held by videoconference. The parties both joined the hearing by telephone and asked to proceed on that basis.

[12] The court must determine whether it should make any further changes to the agreement, either retroactively or prospectively, or in the alternative, determine whether it should rescind any of the arrears found owing.

Part Two – Background facts

[13] The mother is 48 years old. The father is 55 years old.

[14] The parties were married in 1996 and separated in about 2007.

[15] The parties had 4 children together. Sa. W. would be 24 years old today. He died in 2019. Sh. W. is 22 years old. D.W. is 21 years old and I.W. is 17 years old.

[16] The children have always lived with the mother.

[17] I.W. remains eligible for support.

[18] The father left Canada and moved to Somalia in December 2013. He did not return to Canada until January 2019 – for Sa. W.’s funeral. He has remained in Canada since then.

[19] The father also did not pay any child support to the mother while he was in Somalia.

[20] The father has not paid any child support to the mother since he returned from Somalia. He has been in receipt of social assistance.

[21] The present support arrears owing under the agreement, after adjusting for the termination dates for the older three children, are $72,473.50, comprised as follows:[1]

$37,598.50 owing to the City of Toronto and

$34,875.00 owing to the mother.

[22] The father issued his motion to change on December 19, 2019. This was the date of formal notice to the mother of his intention to change the support terms in the agreement. It was also the date of effective notice of the father’s claim, as he said that he did not raise this issue with the mother prior to issuing his motion to change.[2]

[23] The case was administratively delayed due to the pandemic. It remained in First Appearance Court until the matter finally came before a judge on March 16, 2021. On that date, on consent, Justice Roselyn Zisman changed the agreement by terminating support for the older three children as described in paragraph 6 above.

Part Three – Evidence of the parties

3.1 The father

[24] The father deposed that he left Canada in December 2013 due to an emergency – both of his parents, he said, were very ill. He left his job as a car valet. He had worked full time at that job for many years.

[25] The father said that he had to stay in Somalia to care for his parents. He said that his father died in 2018 and that he stayed with his mother who was also suffering from various health problems.

[26] At trial, the father deposed that his older brother in Somalia became very ill and died. He said that he had also been caring for him.

[27] The father said that he did not work while he was in Somalia – that he lived with and was supported by his family.

[28] The father said that he remarried in Somalia in 2017. He has a 3-year-old child with this wife. They remain in Somalia.

[29] The father deposed that he is unable to work. He admitted that he has not looked for work other than inquiring about his old valet job.

[30] The father said that he is diabetic and has high blood pressure. He takes medication to deal with these issues. He had surgery on two of his fingers in March 2021. He said that he has pain in his hands. He said that he is unwell and fears that he may have mental health issues. He also fears that he may “fall down dead” if he works.

[31] The father filed a very brief medical report from his family doctor dated March 18, 2021. It reads as follows:

This is to confirm that the above named has following medical/surgical conditions

1. Diabetes mellitus

2. Hypertension

3. Tendon release surgery of right middle and ring fingers on March 12, 2021.

[32] The father said that his driver’s licence and passport have been suspended by the Family Responsibility Office. He described himself as a prisoner.

3.2 The evidence of the mother

[33] The mother testified that the father is lying to the court.

[34] The mother said that she has a very good relationship with the father’s family. She said that the father traveled to Somalia in 2013 to be with his second wife, who he had married in Somalia in 2009 – not to care for his ill parents. She said that the father has since married two other women in Somalia.

[35] The mother deposed that the father’s father was not ill in 2013 because he had died in 1975.

[36] The mother stated that the father’s mother is in good health and often calls her to talk about her grandchildren.

[37] The mother said that the father has a wealthy family in Somalia. They own and operate warehouses, hotels and rental properties there. She said that the father worked for the family hotel business. She said that she traveled to Somalia with the children and saw the 4-storey hotel owned by the father’s family where the father worked. She saw that he was “leading the good life”.

[38] The mother said that the father lived in a large 5-bedroom home in Somalia that he custom built for himself. She said that one of his wives and his child live in that home.

[39] The mother said that the father has been unable to return to Somalia because his passport was suspended by the Family Responsibility Office.

[40] The mother does not believe that the father has any medical limitations that prevent him from working – he just does not want to pay her support.

[41] The mother described how difficult it has been for her to support and raise the children without any assistance from the father.

[42] The father denied the mother’s allegations. He admitted that his brother owned a building in Somalia – but it only had 5 or 6 rooms. He denied having any marriages other than his present one.

Part Four – Credibility

[43] The court preferred the mother’s evidence over the father’s evidence where it conflicted.

[44] As a starting point, the court is more inclined to believe the mother, who raised and supported four children without any contribution from the father after December 2013.

[45] The father’s evidence about the family emergency in Somalia shifted at trial. In his motion to change, the health concerns expressed were only about his parents. At trial, much of his focus was on the health of his older brother – whom he had not mentioned in his affidavit. Further, he could not explain why he had to be the caregiver for these family members when there were many other family members already in Somalia.

[46] The father claimed that these illnesses prevented him from returning to Canada until 2019. He provided no evidence of these illnesses, even though this evidence (and his father’s date of death) was in dispute. It is more likely that he remained in Somalia to live with his wife and child.

[47] The father claimed that he was supported by his parents and his brother while in Somalia and that he did not work. However, according to the father, these same people were extremely ill and had to be cared for by him. This evidence was not credible.

[48] The father claimed that the mother knows nothing about his family or his life in Somalia. The mother was incredulous about this claim. She said that their families know each other very well. The mother was able to provide considerable detail about the father’s life. The court believed her.

[49] In his motion to change in December 2019, the father deposed that he was working with his doctors to make an Ontario Disability Support Plan (ODSP) application. At trial, when explaining why this application had not been made, he testified that his family doctor had told him that he needed to wait two years to make it. It is highly unlikely that his doctor would tell him this.

[50] The mother said that the father did not provide her with any annual financial disclosure until he brought his motion to change. This was not disputed by the father.

[51] The mother’s evidence was consistent and delivered with confidence. The court found her to be a credible witness.

Part Five – Legal framework

[52] Pursuant to clause 35 (2) (a) of the Act, the agreement may be enforced as if it were an order of the court where it is filed. Clause 35 (2) (b) of the Act provides that the order may be varied under section 37 of the Act.

[53] The father’s motion to change support is governed by subsection 37 (2.1) of the Act which reads as follows:

Powers of court: child support

(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,

(a) discharge, vary or suspend a term of the order, prospectively or retroactively;

(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and

(c) make any other order for the support of a child that the court could make on an application under section 33.

[54] The powers of the court on a motion to vary a child support order are very broad. The court can not only change the terms of the order, either prospectively or retroactively, but can also suspend or discharge the order, either in whole or in part, and on either a prospective or retroactive basis. The court's authority with respect to arrears is similarly broad and includes the power to rescind the arrears and interest, either entirely or in part, or to reduce the amount of arrears payable. See: Meyers v. Content, 2014 ONSC 6001.

[55] The child’s interest in a fair standard of support commensurate with income is the core interest to which all rules and principles must yield. A fair result that adequately protects this interest will sometimes lean toward preserving certainty, and sometimes toward flexibility. See: Colucci v. Colucci, 2021 SCC 24, par. 4 (Colucci).

[56] In Michel v. Graydon, 2020 SCC 24, the Supreme Court of Canada made the following observations about retroactive support that are germane to this case:

a) Courts must also turn their minds to other forms of marginalization in the courtroom. The gendered dimensions of poverty at different times mirror or obscure its intersections with race, disability, religion, gender modality, sexual orientation and socioeconomic class. The judiciary must take these differences into account and give them their due weight in considering the tests at issue. In the end, a system that can account for the social dynamics which act to impoverish certain members of society over others, or to prevent them from accessing the courtroom and reclaiming their rights, is a fairer system for all (par. 101).

b) The neglect or refusal to pay child support is strongly linked to child poverty and female poverty (par. 121).

c) Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations. (par. 25).

[57] The Supreme Court of Canada set out the framework for deciding applications to decrease support retroactively at paragraph 113 in Colucci as follows:

(1) The payor must meet the threshold of establishing a past material change in circumstances. The onus is on the payor to show a material decrease in income that has some degree of continuity, and that is real and not one of choice.

(2) Once a material change in circumstances is established, a presumption arises in favour of retroactively decreasing child support to the date the payor gave the recipient effective notice, up to three years before formal notice of the application to vary. In the decrease context, effective notice requires clear communication of the change in circumstances accompanied by the disclosure of any available documentation necessary to substantiate the change and allow the recipient parent to meaningfully assess the situation.

(3) Where no effective notice is given by the payor parent, child support should generally be varied back to the date of formal notice, or a later date where the payor has delayed making complete disclosure in the course of the proceedings.

(4) The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors (adapted to the decrease context) guide this exercise of discretion. Those factors are: (i) whether the payor had an understandable reason for the delay in seeking a decrease; (ii) the payor’s conduct; (iii) the child’s circumstances; and (iv) hardship to the payor if support is not decreased (viewed in context of hardship to the child and recipient if support is decreased). The payor’s efforts to pay what they can and to communicate and disclose income information on an ongoing basis will often be a key consideration under the factor of payor conduct.

(5) Finally, once the court has determined that support should be retroactively decreased to a particular date, the decrease must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.

Part Six – Legal considerations for the imputation of income

[58] In making the threshold determination of whether there has been a material decrease in a party’s income, that has some degree of continuity, and that is real and not one of choice, the court is not bound by the reported income of the party. Section 19 of the guidelines permits the court to impute income to a party if it finds that the party is earning or is capable of earning more income than they claim.

[59] 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. If they fail to do so, they will be found to be intentionally under-employed. See: Drygala v. Pauli, 2002 41868 (ON CA), [2002] O.J. No. 3731 (Ont. CA).

[60] The Ontario Court of Appeal in Drygala v. Pauli set out the following three questions which should be answered by a court in considering a request to impute income:

1. Is the party intentionally under-employed or unemployed?

2. If so, is the intentional under-employment or unemployment required by virtue of the party’s reasonable education or health needs?

3. If not, what income is appropriately imputed?

[61] The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552. (Ont. C.A.).

[62] Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. See: Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719

[63] Absence of a reasonable job search will also usually leave the court with no choice but to find that the payor is intentionally under-employed or unemployed. See: Filippetto v. Timpano, 2008 3962 (ON SC), [2008] O.J. No. 417, (Ont. S.C.); T.L. v. D.S., 2019 ONCJ 809.

[64] Once under-employment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness. When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way. See: Riel v. Holland, 2003 3433 (Ont. C.A.), at paragraph 23.

[65] As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. See: DePace v. Michienzi, 2000 22560 (ON SC), [2000] O.J. No. 453, (Ont. Fam. Ct.); Rogers v. Rogers, 2013 ONSC 1997.

[66] The salary level earned prior to quitting a job was imputed to the payor in Thompson v. Gilchrest, 2012 ONSC 4137 and in Lindsay v. Jeffrey, [2014] ONCJ 1.

[67] The payor must prove that any medical excuse for being underemployed is reasonable. See: Rilli v. Rilli, 2006 34451 (ON SC), [2006] O.J. No. 4142 (SCJ.).

[68] Cogent medical evidence in the form of detailed medical opinion should be provided by the payor in order to satisfy the court that his/her reasonable health needs justify his/her decision not to work. See: Cook v. Burton, 2005 1063 (ON SC), [2005] O.J. No. 190 (SCJ) and Stoangi v. Petersen, 2006 24124 (ON SC), [2006] O.J. No. 2902 (SCJ).

[69] In Davidson v. Patten, 2021 ONCJ 437, Justice Carole Curtis set out that a party resisting a claim for imputation of their income based on medical reasons should provide a medical report setting out at least the following information:

i. Diagnosis;
ii. Prognosis;
iii. Treatment plan (is there a treatment plan? And what is it?);
iv. Compliance with the treatment plan; and,
v. Specific and detailed information connecting the medical condition to the ability to work (e.g, this person cannot work at the pre-injury job; this person cannot work for three months; this person cannot work at physical labour; this person cannot return to work ever).

[70] Support payors must use reasonable efforts to address whatever medical limitations they may have to earn income. This means following up on medical recommendations to address these limitations. See: Cole v. Freiwald, [2011] O.J. No. 3654, per Justice Marvin A. Zuker, paragraphs 140 and 141.

[71] The third question in Drygala v. Pauli, supra, is: “If there is no reasonable excuse for the payor’s under-employment, what income should properly be imputed in the circumstances?” 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, 2006 26573 (ONCA).

[72] Even if the court decides to impute income due to the payor’s reckless behaviour or misconduct, it is not bound to impute income at the payor’s previous income level. It can impute income in an amount different than what the payor had been previously earning, or it can impute different amounts of income for different time periods. Courts have a significant degree of discretion when imputing income. See: Menegaldo v. Menegaldo, 2012 ONSC 2915; Tillmans v. Tillmans, 2014 ONSC 6773.

[73] The court will usually draw an adverse inference against a party for his or her failure to comply with their disclosure obligations as provided for in section 21 of the guidelines, and impute income. See Smith v. Pellegrini, 2008 46927 (ON SC), [2008] O.J. No. 3616, (Ont. S.C.); Maimone v. Maimone, 2009 25981 (ON SC), [2009] O.J. No. 2140, (Ont. S.C.).

[74] 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 39CJ 373 ().

[75] A payor cannot use the suspension of his or her driver’s licence by the Family Responsibility Office, due to non-payment of support, to justify a support reduction. See: Caine v. Ferguson, 2012 ONCJ 139.

Part Seven – Analysis of father’s claim to reduce support both retroactively and prospectively

[76] There were material changes in circumstances when each of the three older children ceased being eligible for support. These changes were addressed by the March 21, 2021 order.

[77] These were the only material changes in circumstances that warranted varying the support terms in the agreement.

[78] As set out in subparagraph 1 of paragraph 113 in Colucci, the father bears the onus of establishing a material change in his income that has some degree of continuity, and that is real and not one of choice, for the court to move on with the analysis of whether to further vary his support retroactively. This is described in Colucci as a threshold test.

[79] The court finds that the father did not meet his onus to pass this threshold test.

[80] First, the court finds that the father enjoyed a lifestyle in Somalia from December 2013 until January 2019 that was at least as good as the lifestyle that he had led in Canada. The court accepts the mother’s evidence about this lifestyle. It helps explain why the father stayed so long in Somalia.

[81] Second, the court finds that the father was earning an income in Somalia to support this lifestyle that was comparable to what he had earned in Canada. The court does not believe the father when he said that he did not work in Somalia. The court accepts the mother’s evidence that the father worked in his family business – specifically at the hotel his brother owned.

[82] Third, the court finds that if the father’s income decreased during the time he was in Somalia, it was through a deliberate choice he made. He chose to quit his secure job in Canada and abandon his financial responsibilities to the mother and the children.

[83] Fourth, the court did not meet his onus to establish that his inability to earn income in Somalia was due to his own health needs. He provided no medical evidence from a doctor in Somalia that he was unable to work from December 2013 until January 2019.

[84] Fifth, the court does not find it credible that the father had to remain in Somalia to care for his parents. He had other family members in Somalia to care for them (assuming this was even required). When the mother put his father’s date of death in issue, the father led no evidence to rebut it (such as a death certificate). In any event, the father’s support obligations to the children should have taken priority to his being a caregiver for his parents.

[85] The court finds that the father either earned or was capable of earning $35,800 annually (the amount that support was based on in the agreement) while he was in Somalia. It imputes that income to him for support purposes.

[86] The court also does not accept the father’s evidence that he has been unable to work since he returned to Canada.

[87] The court finds that the father has chosen not to look for work. He has been deliberately unemployed, without valid excuse.

[88] The medical evidence provided by the father to support his inability to work fell well short of what courts require.

[89] The medical report filed by the father is sparse. It merely categorizes the father’s medical conditions. It does not set out a prognosis or a treatment plan. It does not say what work the father can or cannot do in the future (or has unable to do since he returned to Canada) because of his conditions – it does not link his conditions to his ability to work. It does not set out how regularly he sees his doctor or if he has been referred to any specialists.

[90] It is noteworthy that the father has not obtained a medical report to support an ODSP application, when he had expressed his intention to make such an application in December 2019. The logical inference is that his medical conditions do not support making such an application.

[91] The father said that he does not go for physiotherapy for his medical conditio