ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FC-12-859
DATE: 2014/01/02
BETWEEN:
Nagin Razavi
Applicant
– and –
Said Hamed Ghiasian
Respondent
Tanya C. Davies, for the Applicant and
for Farkhondeh Razavi as an Added Party
Steven Greenberg, for the Respondent
HEARD: September 30, October 1, 2, 3,
and 8, 2013
REASONS FOR DECISION
McNamara J.
Introduction
[1] This application was tried before me over the course of five days.
[2] The applicant, Nagin Razavi, is, at present, 33 years of age and resides in the city of Ottawa. The respondent Said Hamed Ghiasian is 29 and is a resident of the city of Toronto. Farkhondeh Razavi is the mother of the applicant and was added as a party to the proceedings.
[3] The applicant is the Canadian-born child of Iranian parents. Mr. Ghiasian came to Canada in 2007 as a refugee from Iran.
[4] The applicant and respondent have one child, Neka, born August 18, 2011.
[5] The couple met in or around March of 2009 when both were living in Toronto. They dated for a number of months and then decided to live together. Prior to taking up shared residence, the couple purchased a condominium unit at 15 Fort York, Toronto, in September of 2009.
[6] The parties were married, but there is a dispute as to the date. The applicant’s position is that the date of marriage is in accordance with the Record of Solemnization of Marriage filed in evidence, which is dated February 2, 2011. The respondent’s position is that a “religious” marriage took place in 2010, as evidenced by the translation of a religious marriage certificate dated February 1, 2011.
[7] The parties separated in November 2011.
[8] The Application was issued on March 29, 2012, and the Answer was filed on April 17 of that same year.
[9] The issues in this case can be generally summarized as follows:
a) Custody/access;
b) Child support and child support arrears;
c) Spousal support;
d) Equalization, with, at its center, a claim by the respondent that he has an interest in property described municipally as 545 Melrose Avenue in the city of Toronto.
Analysis
Issue: Equalization – and does the respondent have an interest in the property at 545 Melrose Avenue?
[10] I start with this issue as it was the one upon which the vast majority of time was spent at this trial.
[11] The applicant testified that, in the latter part of 2009, her mother, a long-term resident of the city of Ottawa, expressed an interest in buying a property in Toronto to renovate and resell as an investment. At her mother’s request, the applicant and respondent did some looking around and, in due course, located a property at 545 Melrose Avenue (“545”) in Toronto. Negotiations ensued and, ultimately, an Agreement of Purchase and Sale was entered into between vendors and the applicant and her mother as purchasers. The purchase price was $675,000.00.
[12] The applicant testified that, shortly before closing, in consultation with the real estate lawyer they had retained, the applicant and her mother entered into a declaration of trust. Pursuant to it, the applicant was shown as having a 99 percent share of the property and her mother one percent, subject to the proviso that the applicant was a bare trustee for her mother, who is described in the document as the sole beneficiary. The agreement also provides, amongst other things, that the mother was solely responsible for all costs in respect of the ownership and maintenance of the property.
[13] The lawyer who prepared the agreement, Garry Shapiro, testified at trial and indicated that the purpose and intent of the trust was to reflect the actual ownership of the property, to make clear who was responsible for all costs, to deal with potential future capital gains issues, etc.
[14] The transaction closed on April 28, 2010, before the applicant and the respondent were married.
[15] The applicant was adamant in her testimony that she never had any interest in the property and there was never any plan for her and the respondent to reside there as their matrimonial home.
[16] Some months subsequent to the closing of the real estate transaction, some problems developed in the relationship between the applicant and respondent. These culminated when, on May 15, 2010, the police were called and Mr. Ghiasian was charged with assault. All of that was ultimately resolved by way of a peace bond and the parties agreed to work on their relationship. In and around this same time, the applicant testified that she and the respondent were experiencing financial difficulties. She had lost her job, he was working off and on, and the combined effect of the cost of carrying their condominium, car payments, etc. made the situation extremely difficult. The solution they came up with was to rent out the condominium to cover its costs, and to move into a basement apartment with a modest rent.
[17] In the summer of 2010, the renovations at 545 got under way. The applicant testified that she had agreed with her mother that, since the applicant lived in Toronto and her mother was in Ottawa, and because her mother travelled extensively, her mother would transfer all funds required for the renovations to 545 and for mortgage payments, taxes, etc. to the applicant’s bank account, and the applicant would disburse the funds. The applicant and her mother had agreed that this made geographical sense and would also make it easy to keep a record of expenditures.
[18] The applicant’s evidence was that the renovations took much longer and were far more extensive than originally anticipated. Finally, however, by the fall of 2011, the property was ready and it was listed for sale in November of that year. It took some time to sell but finally closed in March of 2012, with the selling price being much less than they had hoped.
[19] In late 2010, the applicant became aware that she was pregnant. Despite some continuing doubts about the stability of her relationship, she says that she agreed with the respondent that they should marry so that the child would come into the world with married parents. As indicated earlier, there is a dispute about the date of marriage. It was the applicant’s evidence that the date of marriage is that set forth in the Record of Solemnization of Marriage: February 2, 2011. She acknowledged that there is a “religious marriage certificate” dated February 1, 2011, that was filed in evidence, the translation of which provides, amongst other things, that “according to admission of the both above persons on September 23, 2010 they married religiously and now requesting to register it officially. Signed and sealed.”
[20] According to the applicant’s evidence, there was no such prior ceremony; the religious marriage certificate was obtained only because she was pregnant in advance of their actual marriage, and, should she travel to Iran and her extramarital pregnancy be discovered, there could be dangerous consequences.
[21] The baby was born in August 2011.
[22] According to the applicant, she and the respondent were still living in the small basement apartment as of this point in time. In consequence, she went home to Ottawa, where she would have her parents to help her with the baby. She testified that the respondent would come to Ottawa for periods of time and then return to Toronto to work now and then. Their relationship was continuing to deteriorate, mostly, she testified, over his refusal to try and find full-time work in the Ottawa area.
[23] According to her evidence, in late November 2011, he left for good.
[24] The evidence discloses that, when the sale of 545 closed in March 2012, there was a net payout on closing of $297,445.95. It was the applicant’s evidence that, after paying back her mother for the monies she had put into the project, there was a loss of $30,000. Filed at trial and identified by the applicant was extensive financial documentation that confirms the expenditure of significant amounts of money on the 545 project. These included $84,105 for the down payment, CMHC and legal fees; $71,162 in mortgage, tax, and utility payments; $109,625 for demolition and construction; and $60,678 for construction materials. There was also filed in evidence documentation supportive of the proposition that the applicant’s mother had transferred into the applicant’s account approximately $244,000 written on various lines of credit; there was also evidence of the payment of a significant amount of materials by way of credit card.
[25] The applicant testified that the condominium owned by herself and the respondent sold in 2011. She conceded that the net proceeds of $27,481.07 went into her bank account. She testified that this was so because she had put up the entire down payment of $22,000 and had paid the vast majority of the carrying charges on the condominium while she and the respondent were living there.
[26] During cross-examination, the applicant conceded, when confronted with an affidavit she had sworn previously in this litigation, that, contrary to her evidence in-chief, she had never spent any time living at 545, she may have been there for a week. She remembered that became necessary when some repairs were being done to their basement apartment.
[27] She also conceded that she and the respondent were tenants in common with relation to the Fort York condominium, with her having a one percent interest and him 99 percent. She explained that the reason title was taken that way was so he could take advantage of the first time home buyer credit in purchasing the condominium, and she could take advantage of that credit at a later date.
[28] She was also referred to the closing documents for 545. She agreed that the full net proceeds of the sale were transferred into her personal account. She testified that the reason for this was so that, consistent with what they had done throughout the transaction, she could disburse funds from that account. The applicant then referred the court to the respondent’s productions, which included a statement from one of the applicant’s bank accounts (President’s Choice Financial) that shows the full closing sum being deposited into that account in the amount of $297,445.96 and then all but $131.43 being disbursed to repay her mother’s three lines of credit and various credit cards her mother had used to pay for building materials.
[29] The applicant also agreed, on cross-examination, that, on the sale of 545, and specifically, when she completed the transfer, she indicated that she was not a spouse. She testified that she did that because she didn’t consider herself to be a spouse having been abandoned by her husband. She also agreed that she had indicated in a statutory declaration that 545 had been her residence. Her explanation for that was to avoid capital gains tax.
[30] Farkhondeh Razavi, the applicant’s mother, gave evidence. Firstly, she confirmed that the acquisition of 545 was, from the beginning, a pure investment. She also swore, referring to the financial documentation, that all of the money that went into the project belonged to her. She identified the trust agreement and confirmed that it was put in place so that it would be clear what the arrangements were between her and her daughter.
[31] This witness was adamant that she never told the applicant and the respondent that 545 would be their house someday. She also indicated that her daughter, to her knowledge, never resided at 545 for any appreciable period of time. According to Ms. Razavi, the respondent put no money into this project, although she conceded that she thought he had done some painting.
[32] She was quite clear in saying that more money was invested in the project than was made, and that she still owes in excess of $25,000.
[33] Mr. F. Razavi, the applicant’s father, also gave evidence. This witness told us that he moved to Ottawa from Iran some 35 years ago. He is now the owner of three Nutrition House franchises, one of which, at times relevant to this case, was located in Toronto.
[34] Mr. Razavi indicated that, in late 2009/early 2010, his wife spoke to him about purchasing a property in Toronto, renovating it, and attempting to make a profit. He confirmed that he was kept apprised of developments as the house was located, purchased, etc.
[35] He was told by his wife that the home was being put in his daughter’s name for tax purposes and to take advantage of what he described as the first time home buyer’s credit. He was also aware that a trust document had been drawn up to define the relationship between his daughter and wife, and he thought that to be a good idea. To his knowledge, all expenses related to the acquisition, maintenance and renovation of 545 were funded by his wife.
[36] At that particular time, Mr. Razavi was in Toronto weekly to look after his business franchise in that city. He said that, every time he was there, he would go out and see how the renovations were progressing; he was also involved in paying some of the workers. It was also his evidence that, on occasion, he gave cash to the respondent in order that the respondent might pay project workers who were friends of the respondent.
[37] Mr. Razavi testified that, on no occasion while he was at the house, did he see any evidence that the applicant and respondent were living there. He volunteered that, from his perspective, they couldn’t live there, quite simply because the house was a complete mess during the large renovation process. Further, once the house was indeed liveable, it was put up for sale immediately.
[38] Mr. Razavi agreed that the respondent did some limited work on the project and he stated that he paid the respondent in cash for his services.
[39] He also testified that he personally gave his daughter the funds she needed for the full down payment at the time she and the respondent purchased the Fort York condominium.
[40] The respondent also gave detailed evidence. His evidence conflicted with that of the applicant on virtually every material point.
[41] He told us he came to this country as a refugee from Iran in 2007. He was initially on welfare but subsequently obtained a job in a restaurant where he worked for approximately six months.
[42] The respondent had taken training as an electrician in his native country so he decided to build on that training and attempt to get his qualifications here. Initially he worked for a company for a period of time earning $14 an hour, but he then decided to open his own business. He carried that on for some time, but testified that he then found out that he could not legally offer his services to the public because he did not have the necessary licensing.
[43] In April 2009 and June 2010, he was involved in motor vehicle accidents. It was his evidence that the injuries sustained impacted on his ability to work, and he began to receive certain accident benefits from his own insurer.
[44] The respondent confirmed that he met the applicant in 2009 and that, in due course, they agreed to move in together. To that end, they purchased the condominium earlier described, but it was his evidence he contributed one half of the down payment or approximately $11,000. He testified that he had saved that money since arriving in Canada, and that he kept it in cash at his residence.
[45] He agreed that he and the applicant lived in the condominium for less than a year, and that it was even less for him because of the period of time he was under bail restrictions as a result of the assault charges.
[46] Backtracking slightly, the respondent also acknowledged that, in the fall of 2009, he and the applicant began looking at properties and that they came across the home located at 545 Melrose Avenue. He denied that the basis for their property search was to find an investment property for the applicant’s mother, but rather it was to find a single home for themselves. He produced an Agreement of Purchase and Sale that was entered in evidence where he and the applicant are shown as the prospective purchasers for an offered price of $675,000. He went on to explain that the offer was accepted, but that they couldn’t get mortgage approval, which led to the offer wherein the applicant’s mother was named as a purchaser in his stead.
[47] He was adamant, in his evidence, that it was the plan from the outset that this property was to be his and the applicant’s home. He would do a lot of the demolition and renovation himself, and arrange for friends to do some of the trades work. He said that, in furtherance of this plan, he moved into 545 in May of 2010, while the applicant stayed in the condominium, to get busy at the renovation project. He also testified that, when the condominium sold in September 2010, the applicant moved in with him. He categorically denied that they ever lived in the basement apartment, and instead suggested that this space was rented to store their goods during the renovation project.
[48] It was his evidence that he contributed a large amount of labour and significant materials to the project. In terms of materials, he says he contributed approximately $62,000, and he pointed to a number of invoices filed in evidence that suggest that he had paid certain individuals for materials supplied and work performed.
[49] It was the respondent’s evidence that, during the renovation period, he was not otherwise employed but was receiving some periodic accident benefits. He also received two lump sum payments in satisfaction of the balance of any accident benefits claims. In terms of the accident of April 22, 2009, he received a lump sum payment in and around June 18, 2010, of $15,694.43. With relation to the June 14, 2010 accident, from the date of the accident, and for a period of approximately one year, he received $3,502.50 in housekeeping benefits, $6,000.00 in non-earner benefits, and long-term care benefits of $6,235.57. On or around October 28, 2011, he settled any further claims for benefits related to that accident for a net payout to him of $10,373.29.
[50] He also pointed to two wire transfers which he received from Iran, one dated February 21, 2011, in the amount of $9,000.00, and another on February 24, 2011, for $8,200.00. It was his evidence that these were funds forwarded to him to assist with funding the renovations.
[51] It was the respondent’s evidence that the applicant continued to live with him from the time their condominium sold until the week after the baby was born. He conceded that, at that time, she went to Ottawa so that her family could help her with the new child. Meanwhile, according to his evidence, he continued with the renovations.
[52] He testified that, after the applicant went to Ottawa, he visited several times and she came back several times. She finally returned with the baby in November 2011. He stated that she stayed briefly, but that he could tell that something was wrong. Shortly after that, her father showed up, they packed up belongings, the applicant left, and she never returned.
[53] It was his evidence that he did not even know that the Melrose property was for sale, and that he was shocked when he found out. He testified that he became depressed and that this prevented him from working.
[54] The respondent was also adamant that he and the applicant had gone through a religious marriage ceremony in September 2010, but that he later changed that date to May 2010. In any event, in support of that proposition, he pointed to photographs taken while he and the applicant enjoyed a trip to Japan, in September 2010, to visit with his mother and other family members.
[55] On cross-examination, the respondent insisted that he had put approximately $11,000 into the Fort York condominium purchase and that he had somehow accumulated $20,000 to $24,000 in savings in the two years since he came from Iran. He conceded that he could not show bank records of any sort to corroborate that he had those funds, but he reiterated that he kept his savings, at that time, in cash in his apartment.
[56] The respondent was questioned at length about the source of the funds that he accumulated and then used for the renovation project.
[57] First and foremost he acknowledged that, with the two accidents in 2009 and 2010, his ability to work was impacted, so that by May 2010, when he began working on the renovation project, his main source of income was the benefits he was receiving weekly from his insurer. He also acknowledged that, on that modest amount of money he had to live, had to make vehicle payments in the amount of $450 per month, etc. In this regard, he pointed to the lump sum settlements received from the two insurers that were deposited into his bank account. He conceded during cross-examination, however, that his banking records clearly disclose that significant portions of these payments were used to pay for other things that were not renovation-related. He also pointed to the monies he received from Iran, and denied the evidence that the applicant had given in-chief to the effect that those funds were from his brother-in-law, and were to purchase certain materials that the brother-in-law’s place of employment required, and that were far more expensive in Iran.
[58] He agreed that the applicant’s mother put a lot of money into 545 Melrose, but he denied there was any obligation to pay her back. According to the respondent, the applicant told him that the funds being advanced by her mother were to repay the applicant for monies the applicant had invested in the parents’ business enterprises and that these monies were owed to her.
[59] The respondent called three witnesses, all of whom testified that they had worked on the project at 545 Melrose.
[60] Common to their testimony was that the respondent was frequently around the project site doing work, each of them had rendered charges for services and materials supplied, and each had been paid by the respondent in cash. Each of them also testified that they had seen a pregnant woman in and around the Melrose property. One indicated that he had seen her once, another two to three times, and the third stated that he had seen her an unspecified number of times.
[61] On cross-examination, each of these witnesses acknowledged that they knew the respondent with varying degrees of familiarity, and that none of them had ever asked the respondent where the cash with which he was paying them had come from.
[62] Because certain documents had been introduced in evidence through the respondent to contradict the applicant but had not been put to the applicant during cross-examination, I allowed applicant’s counsel to call her in reply.
[63] In terms of the offer to purchase 545 wherein she and the respondent are shown as the prospective purchasers, she testified that this occurred because her mother was travelling and not available to sign an offer. That led to the document being drafted the way it was. The offer was accepted, and once her mother was back in the country, the respondent’s name was dropped and the mother’s substituted in his place.
[64] She was also referred to the Revised Net Family Property Statement identified by the respondent during his testimony. In particular, she was referred to an entry in her column under part 4(c) to the effect that, as of the date of separation, she had $34,084.68 in an RBC account. The applicant referred to the bank records which clearly indicate that on November 2, 2011, $34,000.00 was deposited in her account from her mother’s line of credit which was then disbursed on November 16. These were monies used to pay outstanding accounts on the renovations.
[65] It is the position of the respondent that the property at 545 was a matrimonial home. In support of this submission, the respondent points to the evidence that both he and the applicant received their mail at that address over an extended period of time, and he also points to evidence such as the applicant’s tax return for 2011, in which she shows, under the heading “Details of Dependant,” that, from the date of the birth of their daughter on August 18, 2011, to the date of separation on November 23, 2011, the dependant’s address was 545 Melrose. The respondent further points out that, while the applicant testified in-chief that she never resided at 545, when confronted with an affidavit she had supplied in May 2010, she admitted that she said in that document that she had lived in the house for a short period of time.
[66] The respondent further argues that the purported trust agreement between the applicant and her mother is a sham, and that it was concocted in order to prevent him from realizing any interest in the matrimonial home.
[67] The difficulty with the respondent’s submissions in this regard is that, for each of his arguments, there is credible evidence to the contrary.
[68] First and foremost, the fact that mail was addressed to the parties at 545 is of limited assistance. The applicant testified that this address was used as a matter of convenience because, at the time during which they were living in a basement at 67 Morgan Street, that apartment had no separate mail delivery. That is a rational explanation and not at all unusual. Mailing addresses are not necessarily an indication of residence, as demonstrated by the fact that there was evidence that, as late as 2010, the respondent was receiving mail to him addressed to a residence in which he had not lived in for at least a couple of years.
[69] As to the various documents the applicant completed showing Melrose as an address, including the aforementioned tax return, the applicant explained that this was done to obtain certain benefits, and, while that is hardly admirable, it does not mean that it is not true. Furthermore, there is significant other evidence that, during the four-month period from August 2011 to November 2011, the applicant and the child were residing in Ottawa. Her testimony on that point is confirmed by her mother, her father, her brother, and her brother’s girlfriend.
[70] I also accept the applicant’s explanation that she did indeed forget about having been at 545 for a short period of time owing to the fact that some emergency repairs had to be done to the basement apartment.
[71] The fact that some trades people saw the applicant at 545 on occasion is of no consequence. One would expect, with her mother’s property being renovated, that she would be there on occasion to see how things were progressing.
[72] The most important piece of evidence on this issue is, however, the evidence of Mr. Razavi. I found him, unlike the respondent, to be a credible witness with no tendency whatsoever to exaggerate or embellish his testimony. He testified, as reviewed earlier, that he was at 545 on a weekly basis and saw no evidence that it was being occupied nor, in his view, could it be. He described, not surprisingly, how the interior of the premises was a complete mess, and not really habitable, during this extensive renovation.
[73] I also reject the respondent’s argument that the trust agreement entered into between the applicant and her mother was a sham. To accept that argument, I would have to reject the evidence of Gary Shapiro, the lawyer who handled the transaction. He gave sworn evidence, which I accept, regarding the purpose and intent of the trust document, which was executed two days prior to the closing of 545. His evidence was not shaken in any way on cross-examination.
[74] I find on the credible evidence as a whole that 545, at the time of separation, was not ordinarily occupied by the applicant and respondent as their matrimonial home, nor was it ever so occupied. The only direct evidence that it was a matrimonial home comes from the respondent who, generally speaking, I found to be an unimpressive witness. I had the opportunity to observe him closely while he gave his evidence at trial and found him to be evasive, unnecessarily combative, at times inconsistent, and generally not credible.
[75] Next, the respondent argues that, if 545 was not a matrimonial home, then the applicant and her mother would be unjustly enriched if they were not required to share in the proceeds of disposition of 545.
[76] It is common ground that, in order for unjust enrichment to be found, three requirements must be satisfied:
there must be an enrichment;
the corresponding deprivation; and
the absence of any juristic reason for the enrichment.
[77] To succeed, then, the evidence must persuade me that there has been an enrichment and that the respondent has suffered a corresponding deprivation.
[78] I start with the respondent’s evidence that he has suffered a deprivation. According to his testimony, he spent approximately $62,000 on materials and trades, as well as a large amount of unquantified labour in renovating 545.
[79] I reject his argument in this regard.
[80] Firstly, there is no reasonable basis on the evidence before me that I can be satisfied that the respondent accumulated over $62,000 to expend on this project. As described earlier in these reasons, the respondent came from Iran as a refugee in 2007, was on welfare, and then worked for six months in a restaurant. Following that he worked for a period of time for a company that paid him $14 an hour. He then started his own business, which would not appear to have been terribly successful on the materials, and it was then closed when he discovered that he could not legally offer his services because he was unlicensed. To compound matters further, he was in two separate motor vehicle accidents, in 2009 and 2010, which, on his own evidence, impacted on his ability to work to the point where he was receiving accident benefits from his own insurer. The evidence also discloses that his financial circumstances were such that, when he purchased a vehicle in June 2010, the applicant had to cosign for the financing.
[81] While it is undoubtedly true that the respondent did receive two lump sum payments from his own insurer as well as certain periodic payments, he had to live on something. There were car payments, etc. to be made, he travelled to both Japan and Thailand, and his banking records disclose that significant amounts of those lump sums were paid out to pay for things that are clearly unrelated to the renovation. While there are certain invoices that contain notations that they were paid by the respondent, it is also a fact that some of these invoices as they appear in the applicant’s productions are different in content from the respondent’s copy. There is also, significantly, the evidence of the applicant’s father that, on a number of occasions, he gave the respondent cash in order to pay for trades and materials.
[82] Finally, there are the wire transfers. While the respondent suggests that they were used on the renovation project, the applicant suggests that those monies were forwarded to the respondent by his brother-in-law in order to assist that individual in acquiring certain goods for a business venture in Iran; this version is corroborated to an extent by documentation.
[83] In my view, based on the evidence as a whole, it is simply not credible that the respondent accumulated the money he says he did, and I do not accept that he put money into the renovation project. I do accept that he did some limited work on the project, but it could not have been significant, as he had been injured in two motor vehicle accidents to the extent that the was in receipt of benefits. There is also the evidence of Mr. Razavi that he paid the respondent in cash for any services that the respondent did perform.
[84] Finally, I also accept that it is established by the evidence, both viva voce and documentary, that the applicant’s mother spent the money she says she did on the project, that the entire proceeds from the sale of 545 went to retire the debt incurred by her during the acquisition and renovation phases, and that the property sold at a loss.
[85] I find on the evidence that the respondent did not contribute to the renovations in any material way for which he was not compensated, and as such there is no corresponding deprivation to any benefit the applicant’s mother may have achieved as a result of those renovations. The claim for unjust enrichment is dismissed.
[86] I am unable, on the present state of the written submissions that were provided by counsel, to go any further with equalization owing to the fact that so central to the submissions on equalization was whether or not 545 was a part of the equalization process. Further, as formerly indicated, I am satisfied, on the evidence, that the applicant’s mother expended the funds that she said she did on the renovations, including the $34,000 that was deposited in the applicant’s bank account on November 2, 2011, and disbursed on November 16, in advance of separation. That figure, I repeat, should not be part of any equalization calculation. With these two significant items removed from the equalization exercise, if counsel are unable to agree on a calculation, then they are directed to arrange a date through the trial coordinator to appear before me and make submissions in this regard.
Custody/Access
[87] The child of the applicant and respondent, Neka, was born on August 18, 2011. She has been in the primary custody of her mother, the applicant, since that date. During the trial and in the written submissions that followed, no one suggested that the status quo in that regard ought to be altered at this point. Clearly, in my view, considering all relevant factors, I am satisfied that it is in the best interests of the child that the applicant have sole custody.
[88] I turn now to access. The governing principle when it comes to access is, of course, that the child should have as much contact with each parent as is consistent with the child’s best interests. Unfortunately, to date, there has been very little contact between Neka and her father. It is the position of the applicant that that is so because the respondent has shown very little interest in the child. The respondent indicates that the reason there has been so little access is primarily the distance he has to travel, combined with a lack of income. He also says that the applicant and her family have made it difficult for access to be scheduled.
[89] The net result, no matter what the reason for the limited access, is that this very young child does not know her father and needs to be reintroduced to him.
[90] In view of the geographical challenges, it is my view that, for the first six months following the release of these reasons, the respondent ought to have one access visit per month of two to three hours’ duration. This would allow him to become reintroduced gradually into his daughter’s life in order to give her a chance to get to know him. In my view, the access during this initial period needs to be supervised. That is not because I am of the view that Neka would be in any danger from her father, but rather because he is a young man with no family to assist him and he has no experience in dealing with a very young child. Access that would be supervised and observed would allow a record to be kept of how the access visits progress, and could potentially provide a building block upon which more extensive access could be ordered after the initial period. Ideally, in order to avoid a long waiting period, the parties could agree to jointly retain a qualified independent individual to observe the access. If, however, that is not financially viable, then access would need to take place at the supervised access centre.
[91] Once the initial period is completed and there is some record of how the access went, it would be expected that the parties, perhaps with the assistance of counsel, could discuss whether or not increased access is appropriate at that stage. Failing that, they could, of course, put the matter before the court.
Child Support
[92] There is no issue that the respondent pay child support. The issues are, firstly, whether or not additional income ought to be imputed to the respondent, and, secondly, whether there ought to be retroactive child support.
[93] It is common ground that, at the date of separation, the respondent was working on a very limited basis. According to his evidence, the separation caused him emotional upset and depression for a period of time, but, in early 2012, he resumed his training in the electrical field and, on February 28 of that year, he received his preliminary certificate under the Trades Qualification and Apprenticeship Act, R.S.O. 1990, c. T.17.
[94] According to the respondent, there are a lot of individuals who hold that preliminary certificate, all looking for work so that they can get to the point where they can qualify to become a Master Electrician. He testified that he began looking for work immediately, but was not hired until July 15 of this year. Filed in evidence at the trial was correspondence from his employer confirming his hiring as a Journeyman Wireman at a rate of $15 per hour, working 37.5 hours per week. There is no evidence before the Court that would establish, on balance, that there were jobs the respondent could have taken but did not.
[95] In those circumstances I am satisfied that there ought not to be any imputation of income. The respondent began paying child support shortly after he secured his job in July, and obviously guideline child support based on his current income will continue forward. He will also be responsible for his share of s. 7 expenses in proportion to the incomes of the parties. There will be an exchange of tax returns by the first day of June of each year for purposes of recalculating child support and the proportionate responsibility for extraordinary expenses. With the evidence as described and with no credible evidence to the contrary, there will be no retroactive award.
Spousal Support
[96] This is not an appropriate case for an award of spousal support.
[97] While the applicant is, apparently, not working at the moment, the evidence would suggest from her job history that her unemployment is a temporary situation. When employed, historically she has earned more income than the respondent. Given the short duration of the marriage, and keeping in mind the respondent’s present income level, any award would be modest.
[98] Perhaps most importantly, even an award of modest spousal support could have an effect on the respondent’s financial ability to have access to his child. The access that has been ordered during the initial stage is to take place here in Ottawa. The respondent will be responsible for the expense of getting here and for accommodations while present in Ottawa. Keeping in mind his limited income level and his responsibility for child support and a proportionate share of extraordinary expenses, ordering spousal support could have a detrimental effect on access.
Travel Outside Canada
[99] I heard nothing during the course of this trial that suggests to me that the applicant should not be allowed to take Neka on a trip as long as adequate notice, an itinerary, and contact information is provided, and, if any access is missed, it is made up. I am not prepared to order that the applicant can unilaterally take the child on such a trip, but, by the same token, consent cannot be unreasonably withheld. In the event that the latter situation occurs and a court application is necessary, it is hoped that these reasons would be a guide to the presiding judge vis-à-vis costs against the party unreasonably withholding consent.
Costs
[100] The applicant has provided a position on costs, but I have no submissions from the respondent. I would suggest that, if it is going to be necessary for a further court appearance in order to address outstanding equalization issues, then costs be addressed at that time. Conversely, should a further appearance on equalization not be necessary, I will receive brief written submissions on costs.
Mr. Justice J. McNamara
Released: January 2, 2014
COURT FILE NO.: FC-12-859
DATE: 2014/01/02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Nagin Razavi
Applicant
– and –
Said Hamed Ghiasian
Respondent
REASONS FOR DECISION
Mr. Justice J. McNamara
Released: January 2, 2014