SUPERIOR COURT OF JUSTICE - ONTARIO
Court File No.: FS-05-007947-03
Date: 2012-03-01
Re: FARZANEH ESMAEILI and HAMID TAVAFOGHI
Before: Justice M.J. Donohue
Counsel: Applicant and Respondent - Self-Represented
E N D O R S E M E N T
ISSUES
[ 1 ] The issues are as follows:
(i) Motion to change child support $294.00 per month as per Sproat J. retroactively to October 2005;
(ii) Order to pay section 7 extraordinary expenses for university for Arsalan Tavafoghi (born September 21, 1993) $10,000.00 (net of grants and loans).
[ 2 ] This requires the court to determine the income of the respondent Mr. Tavafoghi since 2005 and whether he worked part-time as a home inspector.
[ 3 ] Mr. Tavafoghi seeks dismissal of the motion and waiver of the arrears of $1,500.00 owed to the applicant and of the lump sum of $2,646.00 to FRO.
BACKGROUND
[ 4 ] Ms. Esmaeili and Mr. Tavafoghi were married in Iran in June 1992. They have two sons, Arsalan Tavafoghi, born September 21, 1993 and Shayan Tavafoghi, born April 16, 1996. They immigrated to Canada in April 2002.
[ 5 ] Mr. Tavafoghi had a work place accident in 2005. The couple separated in August 2005.
[ 6 ] Mr. Tavafoghi has been in receipt of WSIB payments. He has remarried and has a new son. His second wife is a student at Humber College in accounting.
MR. TAVAFOGHI’S INCOME
[ 7 ] Mrs. Esmaeili states that he is an engineer, worked as a manager of a tool cutting company up to his 2005 WSIB accident. She believes he works as a part-time home inspector.
[ 8 ] In Iran, per the Iranian Divorce Certificate of June 12, 2007 she produced, it is noted he was an engineer employed by an oil company in Tehran.
CONFLICTING EVIDENCE OF THE EVENTS OF 2005 TO 2007
[ 9 ] The applicant alleges that the respondent mortgaged the matrimonial home and left for Iran; sold Iran property; and issued a forged power of attorney and that he worked for an oil company in Iran for two years, 2005 – 2007.
[ 10 ] The respondent alleges that he left Iran in 2005 and had his passport seized due to improper and fraudulent legal proceedings by his wife in Iran; that he had to collect money to pay her gift of marriage before his passport was returned; that he was disabled from working.
[ 11 ] There is no evidence how he lived in Iran for 2006 and 2007 and what his income was.
[ 12 ] He denies that he worked in Iran. He denies the Iranian Divorce Certificate upon which his wife relies.
[ 13 ] WSIB ceased paying while he was in Iran until his return to Canada in November 2007.
[ 14 ] He also alleged that the applicant ran up a mortgaged amount on the matrimonial home using forged papers and he is left with debts which led him to file for bankruptcy. He advised he did not do any home inspection work.
[ 15 ] The constant in this remains that their two sons needed support from both parents.
TAX RETURNS (TAB 13)
[ 16 ] Mr. Tavafoghi declared to Revenue Canada:
2006
0
(In Iran)
2007
0
(In Iran)
2008
$20,892.00
(WSIB)
2009
22,724.00
(WSIB)
2010
23,056.00
(WSIB)
Mrs. Esmaeili declared to Revenue Canada:
2008
$24,691.00
2009
26,211.19
2010
24,600.88
2011
19,884.00
(Expected from disability insurer)
[ 17 ] Retroactive child support at an increased rate is sought by the applicant. Arrears to be waived is sought by the respondent.
[ 18 ] In light of the conflicting evidence before me regarding the past years income of the respondent, I am unable to conclude that the past payments should be higher or that they should be waived.
(i) Increasing Child Support
[ 19 ] The evidence we have for the applicant is that she is in receipt of long term disability payments of $19,884.00 per annum from Great West Life.
[ 20 ] The evidence we have from the respondent is that he is a full-time student at Humber College (funded by WSIB), expected to graduate in April 2012 and be employed by the fall 2012. The last tax return (2010) shows tax free income of $23,056.00.
[ 21 ] While I have no evidence regarding the appropriate tax gross up, I rely on the Divorce Mate calculations.
(ii) Increasing child support
[ 22 ] Calculations for automatic gross up find a gross income of $28,562.00 for the respondent.
[ 23 ] Based on his gross income of $28,562.00, the Child Support Guidelines indicate $419.00 per month.
[ 24 ] This motion to change was brought April 6, 2011 and served April 14, 2011.
[ 25 ] I order the respondent to pay child support of $419.00 per month commencing May 1, 2011.
[ 26 ] I order that the respondent disclose any change in his employment status within 30 days and financial disclosure of his income within 60 days.
SECTION 7 EXPENSES
[ 27 ] Tuition expenses for Arsalan:
Tuition
$6,682.12
Books
1,000.00
Laptop
599.00
Ancillary
1,000.00
Total
$9,281.12
Student loans, grants and scholarships: $8,940.00
[ 28 ] Modest expenses are sought for Arsalan in the amount of $10,000.00.
[ 29 ] For his first year, Arsalan obtained student loans, grants and scholarships totaling $8,940.00.
[ 30 ] This leaves a shortfall for his first year of $1,060.00.
[ 31 ] I order the respondent to contribute 50% of this, being $530.00.
[ 32 ] For subsequent years, I order the respondent to pay 50% of the university expenses of tuition, books and ancillary expenses net of loans, grants and scholarships that Arsalan can obtain.
M.J. Donohue J.
DATE: March 1, 2012
COURT FILE NO.: FS-05-007947-03
DATE: 2012-03-01
SUPERIOR COURT OF JUSTICE - ONTARIO RE: FARZANEH ESMAEILI and HAMID TAVAFOGHI BEFORE: Justice M.J. Donohue COUNSEL: Applicant and Respondent – Self Represented ENDORSEMENT M.J. Donohue J.
DATE: March 1, 2012