ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-05-7947-04

DATE: 2014/04/22

BETWEEN:

Farzaneh Esmaeili
Applicant

– and –

Hamid Tavafoghi
Respondent

Farzaneh Esmaeli, in Person

Hamid Tavafoghi, in Person

HEARD: April 2/3, 2014

ANDRE J.

[1] The applicant and respondent were married in 1992 and separated in 2005. They have two children, Arsalan Tavafoghi, born on September 21, 1993 and Shayan Tavafoghi, born on April 16, 1996, both of whom reside with the applicant. On August 26, 2005, Snowie J. ordered the respondent to pay child support of $294 monthly to the applicant, to commence October 1st, 2005. In 2012, Donahue J. increased child support payments to $419.

[2] The respondent failed to make any support payments for the period 2005 to 2007 and from October 2012 to the present. He brought a motion seeking a court order declaring that all child support arrears he owes should be fixed at zero and setting aside Snowie J.’s order requiring him to pay child support.

[3] The applicant opposes the respondent’s motion and also seeks a court order requiring the respondent to pay 50% of the post-secondary education of Shayan Tavafoghi.

[4] This trial therefore raises the following issues:

1. Should the respondent be relieved of his obligation to pay child support arrears owed to the applicant?

2. Should the respondent be relieved of his obligation to pay child support to the applicant?

3. Should the respondent be required to pay 50% of s.7 expenses towards the cost of Shayan Tavafoghi’s post-secondary education?

[5] For the reasons noted below, the respondent’s motion is dismissed while the applicant’s motion is allowed.

OVERVIEW OF THE EVIDENCE:

[6] The parties migrated to Canada from Iran in 2002. The respondent found employment as a welder and worked in that field until 2005.

[7] In the latter year the respondent fell ill. The Workplace Safety and Insurance Board (WSIB) later ruled that the respondent’s illness was work related and accordingly started to pay him benefits in the amount of $781.26 bi-weekly.

[8] The respondent claimed that he went to Iran in November 2005, on a family vacation for two weeks. Upon his arrival, the authorities seized his passport and prevented him from returning to Canada until he paid the sum of $150,000 which the applicant’s mother claimed the respondent owed to the applicant under what, according to local custom, was called “Gift of Marriage.”

[9] The respondent testified that fortuitously, his mother was able to raise the necessary funds by selling a property which she owned. He received his passport from the Iranian authorities only after the “Gift of Marriage” was fully paid.

[10] Upon his return to Canada, the WSIB reinstated his benefits in November 2007.

[11] The respondent resumed paying child support payments and an additional $100 monthly towards a reduction of the child support arrears that he had accumulated from 2005 to 2007. He declared bankruptcy in 2008 and was discharged in 2012.

[12] The WSIB terminated the respondent’s benefits in August 2012. In that year he received $16,905.37 from the WSIB. He started to receive Ontario Works benefits in September 2012.

[13] The respondent then completed a course in heating and air-conditioning. He opened a business in 2013 but did not generate sufficient business to cover his business expenses, despite extensive efforts at advertising the new business.

[14] The respondent presently receives about $1,106 monthly from Ontario Works. In March 2014, he earned $428.16 which was deducted from the amount he received from Ontario Works, leaving $677.82.

[15] The respondent claims that he has made exhaustive efforts to obtain employment but to no avail. He closed down his heating business in March 2014.

[16] The respondent remarried on June 7, 2008. The couple have a two and a half year old daughter. The respondent’s wife studies accounting at a local college and works part time as a bus driver where she earns $450 biweekly.

[17] The applicant commenced employment in Canada in April 2006. She worked in a bank until September 2010 when her bank was robbed. She subsequently suffered from post-traumatic stress disorder and has been on long term disability ever since.

[18] The applicant testified that the respondent placed a second mortgage on the matrimonial house in 2005 before going to Iran without informing her. She denied that she demanded a “Gift Marriage” from the respondent and tendered a letter from her mother which indicated that her mother never received any money from the respondent.

[19] The applicant also testified that the respondent “maxed” out his credit cards before leaving for Iran. The applicant denied that her mother received $150,000 from the respondent. She maintains that the respondent forged her signature in Iran and sold a condominium they jointly owned without her approval. The respondent stopped paying child support in October 2012 and has done everything in his power to avoid paying child support for the children. The applicant maintains that the respondent is deliberately underemployed for the specific purpose of avoiding paying the child support arrears or making his child support payments. She also testified that due to nonpayment of the mortgage, the matrimonial home was sold through a power of sale.

[20] As of March 4, 2014, the child support arrears owing by the respondent amounted to $14,775.53.

PRIOR COURT ORDERS

[21] On August 12, 2005, Snowie J. granted interim sole custody of the children to the applicant mother. She also ordered that:

1. The respondent pay interim child support to the applicant for the two children pursuant to the guidelines.

2. The respondent pay the applicant the sum of $2,000 forthwith on or before August 15, 2005, 12:00 noon.

3. Effective August 15, 2005, 12:00 noon, the applicant should have exclusive possession of the matrimonial home.

[22] On August 26, 2005, both parties consent to a court order which, in relation to the issue of child support, provided that:

1. The respondent to pay child support for two children of $294, based on a monthly income of $1,726.43 and a yearly income of $20,717.16.

[23] On March 1, 2012, Donahue J. ordered:

1. The respondent to pay child support for the two children of the marriage in the amount of $419 per month, commencing May 1, 2011, based on his annual income of $28,562.

2. The respondent to contribute 50 percent of Arsalan’s first year shortfall ($1,060) 530 towards Arsalan’s tuition.

3. The respondent to contribute 50 percent of the university expenses of tuition, books and ancillary expenses net of grants, loans and scholarships that Arsalan could obtain.

LEGAL PRINCIPLES

[24] Section 17.(1) of the Divorce Act, R.S.C. 1985, c.3 (2d Supp.) indicates that:

17.(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

(a) a support order or any provision thereof on application by either or both former spouses;

(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.

(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.

[25] Section 14 of the Guidelines outlines circumstances that would warrant variation of an order:

14. For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order:

(b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support.

[26] Justice Martinson’s decision in Earle v. Earle, 1999 BCSC 283, sets out the following basic principles for an application to vary a child support order:

MAINTENANCE - SUMMARY

46 These basic principles can be summarized this way:

1. Maintenance Generally

a. Parents have a joint and ongoing legal obligation to support their children.

b. It is the child, not the other parent, who has the right to maintenance.

c. The payment of maintenance is based on not just what a parent does earn but what a parent can earn.

2. Variation

a. There has to be a material change of circumstances, a change that is significant and long lasting.

b. A change to the Guideline amount is not automatic.

3. Arrears

Basic Principles

a. There is a heavy duty on the person asking for a reduction or a cancellation of arrears to show that there has been a significant and long lasting change in circumstances. Arrears will not be reduced or cancelled unless it is grossly unfair not to do so.

b. If arrears are not reduced or cancelled, the court can order a payment plan over time if convinced the arrears cannot be paid right away.

Examples

a. Arrears will only be cancelled if the person is unable to pay now and will be unable to pay in the future.

b. A reduction or a cancellation requires detailed and full financial disclosure, under oath (usually in the form of an affidavit) that at the time the payments were to be made:

i. the change was significant and long lasting and

ii. the change was real and not one of choice and

iii. every effort was made to earn money (or more money) during the time in question, and those efforts were not successful.

c. Responsibility for a second family cannot relieve the parent of his or her legal obligation to support the first family.

d. Delay in enforcement is generally not a legal basis to cancel or reduce child support arrears.

e. Judges will not cancel arrears because the other party gets a lot of money at once. Otherwise, people would be encouraged to not pay maintenance and rewarded for not paying maintenance.

f. Judges will not cancel arrears because the children were looked after in spite of the non payment.

g. Nor will judges cancel arrears because the children no longer need the money. The children should be compensated for what they missed.

h. An agreement between parents that the maintenance for the children does not have to be paid will not be considered.

i. Lack of access between a parent and child is not a legal reason to reduce or cancel arrears.

j. Judges will not reduce or cancel arrears because other money has been spent to buy things for the children.

k. The fact that a person did not have legal advice when the order was made or during the time when the arrears added up, is not, by itself, a reason to reduce or cancel arrears.

ANALYSIS

[27] The respondent does not deny that he has an overarching obligation to provide child support for his two children. He maintains however, that his impecuniosity militates against his ability to pay such support. Furthermore, that his lack of any income between 2005 and 2007 should result in the redirection of child support arrears for that period to zero. Finally, the respondent maintains that given his employment status, ongoing payments of child support and of child support arrears would result in serious hardship and unfairness, particularly where, as here, the applicant was responsible for his inability to leave Iran for two years.

[28] In my view, the respondent has not demonstrated, on a balance of probabilities, that there has been a material change of circumstances that justifies a reduction of his child support arrears to zero and vacating Snowie J.’s order that he should pay child support to the applicant.

[29] I arrive at this conclusion for the following reasons:

1. The respondent testified in his examination in-chief and during cross-examination that he went to Iran for two weeks’ vacation, only to be deprived of his passport by the Iranian authorities, thereby forcing him to remain in Iran.

2. If that was indeed the case, why would it have been necessary for the respondent to have taken a $50,000 second mortgage on his matrimonial home on the eve of his departure? Why would he have encumbered his home with such a large sum if he anticipated returning to Canada within two weeks?

3. Second, the respondent claimed that of this $50,000, he left $22,000 for the applicant in a joint account, yet when pressed in cross-examination, he was unsure whether he had left this money in the couple’s joint account or in one of his accounts. The applicant testified that the respondent never left any money for her.

4. Third, had the respondent left this money for the applicant, he would surely have had proof of his deposit of this large sum into the joint or single account. The fact that he lacks proof of this deposit seriously undermines his testimony about leaving any money for his wife.

5. Fourth, the respondent presented a number of “official” documents from Iran which purport to support his testimony that his mother was required to pay the applicant’s mother $150,000 as a “Gift of Marriage”. The applicant maintains that these documents are all fraudulent. Significantly however, the respondent presented no document such as a bank draft, certified cheque or banking record confirming that such a large sum was paid to the applicant’s mother.

6. Fifth, I seriously question the timing of the respondent’s departure from Canada in 2005. The respondent left Canada following court orders in August, 2005, which gave the applicant sole interim custody of the children of the marriage and which ordered him to pay child support. He placed a $50,000 second mortgage on his home although intending to be away for a mere two weeks. By sheer happenstance, he was forced to remain in Iran for two years.

It is difficult, in my view, to accept this sequence of events as being a case of extraordinary coincidence. On the contrary, it raises a reasonable inference that the respondent’s departure from Canada and his presence in Iran for two years was merely a cynical plan to avoid his child support payment obligations to the applicant.

7. Sixth, the applicant provided some documentary evidence that further brings into question the respondent’s explanation for being in Iran between 2005 and 2007 and thereby not having any type of income to make child support payments during this period. The respondent denied, under cross-examination, that he had taken significant cash advances on his credit cards before leaving Canada for Iran.

However, the applicant presented documents, marked as Exhibit 15 in the trial, that clearly corroborate her contention that on the eve of his departure for Iran, the respondent had borrowed heavily against his credit cards. These records indicate that:

a. The respondent’s HSBC card showed a balance of $10,161.30 as of November 23, 2005, despite having a credit limit of $10,000.

b. The Respondent’s CIBC Shoppers Optimum Visa card showed a balance of $3,237.30 as of September 27, 2005.

c. The respondent’s First Line Platinum Plus Visa card showed a balance of $1,890.83 as of September 20, 2005.

d. The respondent’s Canada Trust line of Credit showed an outstanding balance of $8,297.71 as of November 30, 2005.

e. The respondent’s RBC Visa Platinum card showed an outstanding balance of $3,908.38 as of September 27, 2005.

f. The respondent’s Capital one Gold MasterCard card, which was held jointly with the applicant, showed a balance of $5,144.65 as of February 2006. The statement from the company indicated that the account was sixty days past due.

8. At the time that the respondent incurred these huge credit card debts and also the $50,000 second mortgage he placed on the matrimonial home, he was only receiving a modest $781.26 bi-weekly from the WSIB. Even if I conclude that the outstanding balance on the Capital One MasterCard, which was in the names of the applicant and the respondent, was incurred by the former, the inescapable conclusion is that the respondent travelled to Iran with a large sum of money with the clear intention of remaining there for an indefinite period.

[30] I disbelieve the respondent’s testimony for two additional reasons. In his sworn affidavit dated May 27, 2013, he deposed, in paragraph five, that the court order dated August 26, 2005 was made while he was out of the country. That is clearly untrue, given that both the respondent and his counsel at the time signed the consent order made by the court.

[31] Secondly, the applicant has submitted a document in her Exhibit Book which confirms her testimony that the respondent fraudulently presented a Power of Attorney, which purported to have been signed by her, to the Iranian authorities. An official translation of the document, which appears at Tab 9 of the applicant’s Exhibit Book, shows that it was dated July 25, 2007. It is clear that the applicant did not sign this document given that:

1. She would not have granted the respondent a Power of Attorney, given the strained relationship between the two at the time; and

2. The applicant’s uncontradicted evidence that the last time she was in Iran was on September 21, 2004.

[32] The respondent also seeks a reduction of child support arrears from September 2012 to the present to zero. Given the respondent’s clear efforts to avoid his obligation to pay child support, the respondent’s contention that he was unable to find meaningful employment after he returned to Canada must be viewed with great skepticism. He testified that he did not sponsor his wife to Canada in 2008. He also testified that he did not know where she got the $22,000 she used to purchase a car. He further noted that he decided to shut down his business given that he was losing money. Significantly, Shahin Aliyev, the respondent’s business partner, testified that he was able to secure a job as a maintenance worker after the closing of their business, while the respondent has been unable to do so.

[33] There is no dispute that the respondent has accumulated a significant amount of debt. However, in my view, the applicant has proven, on a balance of probabilities, that the respondent has tried to avoid his support obligations and has likely hidden funds in a clear effort to avoid those obligations.

ISSUE THREE:

Whether the respondent should be responsible for 50 percent of the s.7 expenses related to Shayan’s university education.

[34] Section 7 of the Federal Child Support Guidelines provides that:

7.(1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to separation:

(e) expenses for post-secondary education.

[35] In Titova v. Titova, 2012 ONCA 864 [2012] O.J. No. 5808, the Ontario Court of Appeal defined the test for awarding s.7 special and extraordinary expenses as follows:

In awarding s. 7 special and extraordinary expenses, the trial judge calculates each party’s income for child support purposes, determines whether the claimed expenses fall within one of the enumerated categories of s. 7 of the Guidelines, determines whether the claimed expenses are necessary “in relation to the child’s best interests” and are reasonable “in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation.” If the expenses fall under s. 7(1)(d) or (f) of the Guidelines, the trial judge determines whether the expenses are “extraordinary”.

[36] The respondent does not dispute that he has an obligation to contribute to his child’s university education, but insists that he lacks the financial means to do so.

[37] As I have indicated, I am deeply sceptical of the respondent’s claims of impecuniosity, neither am I persuaded that he has been unable to secure gainful employment since returning to Canada in 2008.

[38] The applicant earns approximately $20,300 annually. The respondent, in my view, has the potential of earning, at a very minimum, $21,000 annually if he scrupulously tries to secure employment in his chosen field. There is no question that a university education is in his child’s best interests and the tuition expense being claimed is reasonable to the means of the parties and their spending pattern prior to separation.

[39] Based on the above, I order that:

1. The respondent’s motion to have his child support arrears reduced to zero is denied.

2. The respondent’s motion for an order setting aside Snowie J.`s order dated April 26, 2005, requiring him to pay child support is denied.

3. Effective April 1, 2014, the respondent must contribute fifty percent of Shayan’s s.7 expenses.

Andre J.

Released: April 22, 2014

COURT FILE NO.: FS-05-7947-04

DATE: 2014/04/22

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Farzaneh Esmaeili
Applicant

– and –

Hamid Tavafoghi Respondent

REASONS FOR JUDGMENT

Andre J.

Released: April 22, 2014