Haidar v. Saleh, 2015 ONSC 3659
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Hadeel Haidar, Applicant
AND:
Amjad Zuhir Saleh, Respondent
BEFORE: Woollcombe J.
COUNSEL: J. Lagoudis, Counsel for the Applicant
M. Garcia, Counsel for the Respondent
HEARD: May 1, 2015
ENDORSEMENT
Introduction
1The applicant, Ms. Haidar, brings a motion for interim child support, child support arrears, and section 7 current expenses and arrears. It is her position that I should impute income of $78,000 to the respondent, Mr. Saleh and order the payment of child support and s. 7 expenses based on that income.
The Relevant Dates
2The parties were married on July 26, 2003. They have three children: Yazan (DOB July 25, 2006), Kareem (DOB November 25, 2008), and Talia (DOB June 30, 2010).
3The family moved to Canada from Syria in August, 2012.
4The parties disagree on the date of separation. Ms. Haidar says that they lived separate and apart in the matrimonial home beginning January 26, 2014. She left the home with the children on June 10, 2014. Mr. Saleh says that they separated on June 1, 2014. For the purposes of this interim order, I am going to proceed on the basis of a June 1, 2014 date of separation, the later of two dates. This is without prejudice to the trial judge’s power to make a different finding of the date of separation based on all the evidence at trial.
The Incomes of the Parties and Position of the Applicant
5Ms. Haidar had no income in 2013 as she was ineligible to work in Canada. She began working in January 2014 as a Marketing Co-Coordinator for Grafton Fraser Inc. Her income for 2014 was $42,115.00. She says that her income for 2015 will be $50,000.00.
6The real issue before me is Mr. Saleh’s income. His Notice of Assessment from Revenue Canada indicates that his income for 2013 was $21,516.00. I do not have before me a Notice of Assessment for 2014. He says that he is prepared to have his income for 2014 imputed at $54,589.33, based on money that he obtained as an inheritance from Syria. Ms. Haidar asks me to impute a higher income of $78,000.00 for these two years.
7In her affidavit, Ms. Haidar highlights some troubling aspects of Mr. Saleh’s financial disclosure. For instance, it appears that when the respondent applied to the Bank of Montreal for a mortgage in order to finance his purchase of the matrimonial home in August 2013, he provided a T4 from 2011 stating that his income that year was $65,380.00, a T4 from 2012 stating that his income was $65,493 and a paystub dated June 21, 2013 indicating that his earnings to date for that year were $33,287.94 (suggesting an annual income in excess of $65,000.00).
8If accurate, these documents would suggest higher incomes for these three years than Mr. Saleh now claims to have had. However, there are reasons to be concerned about these documents. To start with, the respondent did not arrive in Canada until July, 2012. He had no income here in 2011, leading me to conclude that the 2011 T4 is not accurate. Furthermore, his Notice of Assessment for 2013 was for an income of $21,516.00, significantly less than the paystub provided to the Bank would suggest. I conclude that the respondent misled the bank about his income in order to secure a mortgage. This causes me concern about his credibility generally. I cannot impute to him the higher incomes suggested in the documents submitted for the mortgage as I believe these documents to be inaccurate.
9A further issue raised by Ms. Haidar is about money that appears to have been deposited into Mr. Saleh’s account between May, 2013 and October, 2014. His bank records are before me. Setting aside the deposit of $204,820.00 in July 2013, which were funds provided to Mr. Saleh for the purchase of the home, there are still infusions of over $50,000 in 2013 and of $78,764.50 (on her materials) in 2014. There were also redemptions of $37,533.93 from Mr. Saleh’s mutual funds between July 5, 2013 and December 23, 2013. Ms. Haidar asks me to find that Mr. Saleh has sources of income about which he has not been forthright and, on this basis, invites me to impute higher incomes to him. She says that the $78,000.00 figure is the approximate average of deposits made into his TD account in 2013 and 2014, setting aside the deposit for the matrimonial home. I am invited to calculate child support and s. 7 expenses on this basis.
10Mr. Saleh brought to court an affidavit, sworn April 29, 2015 responding to Ms. Haidar’s affidavit. Counsel for Ms. Haidar was content to proceed with her motion notwithstanding that there was new information that she had not been aware of until reviewing the affidavit on the day of the motion. I have now had the opportunity to review this affidavit.
11In his affidavit, Mr. Saleh explains the cash infusions. He says that in the period between August 2012 and April 2013, he received transfers of funds totalling $142,753.69 as full and final compensation for his share of properties in Syria, which were from his mother’s inheritance. He says that by July 2013, most of this was spent as his family was living well beyond its means.
12Mr. Saleh explains that the deposits that were made to his TD account between May, 2013 and October 2014 were transfers from his mutual fund accounts, where he held some of the money advanced to him by his uncle for the home and the remainder of his inheritance.
13I am not confident that Mr. Saleh has been completely forthright about all of his income. It is clear to me that there was access to income in 2013 and 2014 about which Mr. Saleh has not, before his most recent affidavit, been forthcoming. Moreover, there is a live issue with respect to whether the properties that he says have been disposed of in Syria were, in fact, sold. A document provided by Ms. Haidar suggests that as of April 23, 2014, Mr. Saleh held three properties in Damascus, Syria. The inference she invites me to draw is that there are other sources of income available to Mr. Saleh. By contrast, Mr. Saleh provides documents suggesting that these properties were sold in 2011 and 2012. He tells me that he has no other sources of income. I am not able to determine from the documents before me the true state of affairs.
14A final issue raised by Ms. Haidar is that Mr. Saleh is intentionally under-employed. He did not work in 2014 and has provided some evidence about his various job searches between October, 2014 and January 2015. His affidavit indicates that he is now working 22-25 hours a week and being paid about $1,500.00 a month, as of March 2, 2015. He is employed as a Fire Inspection Assistant with Ace Fire and Safety Solutions. He has not provided an explanation as to why he is not working 40 hours per week. Ms. Haidar suggests that while he was unable to work for a period as a result of caring for his ill mother, she is now deceased, and the respondent is capable of earning a higher income.
The Applicable Legal Principles
15In Fraser v. Fraser, 2013 ONCA 715, the Court set out the principles to be used in determining child support. Under s. 15.1(3) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), a court making an order for child support shall do so in accordance with the applicable guidelines. The Federal Child Support Guidelines, S.O.R./97-175, are the applicable guidelines. Section 3 of the Guidelines creates a presumptive rule that the amount of support payable for a child is to be determined based on the income of the spouse against whom the order is sought.
16“Income” is defined in s. 2 of the Guidelines as meaning “the annual income determined under sections 15 to 20.” Section 16 establishes the basic, presumptive rule that a spouse’s income should be determined based on the spouse’s “Total Income” on line 150 of the T1 General tax return:
Calculation of annual income – Subject to sections 17 to 20, a spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III.
17Under s. 17, if a court is of the opinion that s. 16 would not provide “the fairest determination” of a spouse’s annual income, the court may have regard to the spouse’s income over the last three years and determine an amount that is “fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.”
18Section 19.1 provides that a court may impute to a spouse “such amount of income…as it considers appropriate” and provides a non-exhaustive list of such circumstances. The relevant portion of s. 19 states:
Imputing Income – The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include,
the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the spouse;
(e) the spouse’s property is not reasonably utilized to generate income;
(f) the spouse has failed to provide income information when under a legal obligation to do so;
(h) the spouse is a beneficiary under a trust or is or will be in receipt of income or other benefits from that trust.
19The case law makes it clear that I should exercise caution in imputing income on an interim basis. There is no question that temporary motions for child support are difficult to make when adequate income information is not available. Judges are to be cautious in these circumstances, as the trial judge will be in a better position to fully review the merits of the arguments and correct past support.
20I am also reminded of the principles applicable to imputing income. As Gillese J.A. held for the Court of Appeal in Drygala v. Pauli, 2002 CanLII 41868 (ON CA), [2002] OJ No. 3731:
[44] Section 19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court's discretion must be grounded in the evidence.
[45] When imputing income based on intentional under- employment or unemployment, a court must consider what is reasonable in the circumstances. The factors to be considered have been stated in a number of cases as age, education, experience, skills and health of the parent. See, for example, Hanson, supra, and Cholodniuk v. Sears (2001), 2001 SKQB 97, 14 R.F.L. (5th) 9, 204 Sask. R. 268 (Q.B.). I accept those factors as appropriate and relevant considerations and would add such matters as the availability of job opportunities, the number of hours that could be worked in light of the parent's overall obligations including educational demands and the hourly rate that the parent could reasonably be expected to obtain.
Mr. Saleh’s Imputed Income
21Mr. Saleh’s Notice of Assessment suggests that his income for 2013 was $21,516.00. He invites me to impute an income of $54,589.33 for 2014. He says this is based on money he received between August 2012 and August 2013, including his 2013 employment income. The deposits made to his TD account are much higher than $54,589.33. In fact, in his affidavit, he says that there was $74,998.61 transferred into his TD account in 2014. He explains that most of the large deposits were from his mutual fund accounts which were left from his uncle’s loan and some of his inheritance. The other bank deposits, beginning in June 2014, came from his parents.
22Mr. Saleh’s evidence about the money deposited into his TD account over 2014 is not entirely satisfactory. As I review the chart he has provided, it shows that there are significant deposits into his TD account that were not from the mutual fund account which he said contained the inheritance and loan money. For instance, there appear to be deposits of $13,774.59 in January 2014, $5,953.91 in February 2014, $8,450.00 in April 2014 which he has not explained. I also note that in his affidavit, he said that by July 2013, he had spent most of the most of the money associated with his inheritance. Furthermore, he states that by December 2013, there was only $50,000 remaining from his uncle’s loan. Yet, the amount that went into his account was well in excess of this. In the end, I am not sure about the origin of all of the money that was deposited into the TD account in 2014.
23It seems to me entirely fair, in these circumstances, to impute to Mr. Saleh a higher income that he suggests. This is based on what are unexplained deposits to his TD account in 2014. While some of the incoming funds were explained, some were not. I am satisfied that he had income from sources that have not been explained. The real question is what income should appropriately be imputed to him. I think it is appropriate to impute to him an additional $10,000 for 2014, beyond what he suggested, based on unexplained deposits to his TD account in 2014. While the deposits post June 2014 were from he says his parents, and a portion of the earlier deposits were from his inheritance and the loan, I am prepared to conclude that he had access to at least a further $10,000.00 income and to impute to him an income of $64,589.33 for 2014.
24Although I am left with real questions about the money that he received in 2014, and suspect that he received more than the $10,000,00 of additional income I have imputed to him, I am not prepared, on an interim basis, and in the absence of a more fulsome evidentiary record, to impute additional income to him.
The Appropriate Child Support and s. 7 Payments
25Mr. Saleh’s child support payments for 2014 should be based on what his income was.
26Accordingly, the respondent’s child support payment for 2014 should be based on an income of $64,589.33, which is $1,245.00 per month for three children. He has paid $600.00 a month (combined child support and s. 7) since either July 2014 (according to him) or September, 2104 (according to her). For the purposes of this interim order, I am going to assume that the payments began on July 1, 2014. This means that for 2014, he is in arrears by $645.00 for each month. This means that his child support arrears for 2014 are $3,870.00.
27The section 7 arrears need to be calculated on the basis of the relative incomes: Ms. Haidar’s 2014 income was $42,115.00. Mr. Saleh’s was $64,589.33. He should be paying 60.5% of the s.7 expenses to her 39.5%. The 2014 s. 7 expenses include $1,316.45 for children’s camp fees for the summer and $1,000.00 a month for nanny/child care from September, 2014 through to December, 2014. The total amount of s. 7 expenses for 2014 is $5,316.45 and the respondent’s share is $3,216.45.
28These calculations mean that the respondent’s total arrears for child support and section 7 expenses for 2014 is $7086.45.
29For 2015, the respondent says his income will be only $18,000.00. While he says he is only able to find 22-25 hours of work per week, I conclude from the fact that he is working so few hours that he is intentionally underemployed. There is no evidence before me to explain why he is not working full-time. He is working 25 hours per week making $15.00 an hour. This results in a weekly income of $375.00. If he were to work an additional 15 hours per week, even at a minimum wage $11.00 an hour, his weekly income would increase by $165.00 to $540.00. On this basis, his annual income would be $28,080.00. I impute to him an income of $28,080.00 for 2015. Accordingly, under the Child Support Guidelines, his monthly child support obligation is $560.00 for three children.
30He should be paying s. 7 expenses on the basis of his relative income, assuming Ms. Haidar’s income is $50,000.00, as she reports for 2015, and his income is $28,080.00. He should be paying 36% of these expenses. Up to May 1, 2015, the s. 7 expenses for daycare were $1000.00 per month, or $4,000. He owes $359.63 in s. 7 expenses per month.
31On my calculations, the respondent should have been paying $919.63 a month in total, since January 1, 2015, for child support and s. 7 expenses. He has paid only $600 a month and so is in arrears of $319.63 a month. As of May 1, 2015 when this motion was heard, this would have been $1,278.52.00.
32Going forward, the applicant has requested that the respondent contribute to additional s. 7 expenses for the children’s extra-curricular activities including swimming, soccer and dance. Swimming is $125.00 per child per session, soccer is $100 per child per session and dance is $125.00 per child per session. If and when the applicant enrols the children in any of these activities and provides the respondent with a copy of the receipts for payment, he is to reimburse her for 36% of the costs. In addition, he should reimburse her for 36% of the cost of summer camp expenditures for 2015. If camp costs replace daycare costs, the monthly s. 7 costs should be adjusted accordingly to reflect any change for the summer of 2015.
33I conclude that the total arrears for child support and s. 7 expenses for the time period from July 1, 2014 until May 1, 2015 consist of $7,086.45 for 2014 and $1,278.52 for 2015. These add up to a total of $8,364.97. There are obviously additional arrears since May 1, 2015 which are likely $319.63 for May.
34On an interim without prejudice basis, going forward in 2015, the respondent ought to be paying both child support and s. 7 expenses on the terms I have set out above. A support order is to issue.
35It may well be that the trial judge is able, on the basis of a more fulsome record of evidence, to impute additional income to the respondent on the basis of properties in Syria or other income. Given the conflicting affidavit evidence before me, I do not have a basis upon which to do so now.
36On April 29, 2015, Justice Edwards released to the applicant, on a without prejudice basis, $8,980.00 from the net sale proceeds of the matrimonial home. I understand that this was on account of arrears for child support and s. 7 expenses. These funds more than satisfy what I have found to be $8364.97 arrears for child support and s. 7 expenses up to May 1, 2015. The balance of the funds should be credited to further arrears for May and June 2013. I am not prepared to release any further funds for arrears on the basis of the evidence before me on this motion.
37The parties have not as yet had an opportunity to address the issue of costs. If the respondent seeks costs, he shall serve and file his costs submissions within 20 days of the release of these reasons. The applicant shall have one week in which to respond.
Woollcombe J.
Date: June 8, 2015
CITATION: Haidar v. Saleh, 2015 ONSC 3659
COURT FILE NO.: FS-14-81371-00
DATE: 2015 06 08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Hadeel Haidar,
Applicant
– and –
Amjad Zuhir Saleh
Respondent
COUNSEL:
J. Lagoudis, Counsel for the Applicant
M. Garcia, Counsel for the Respondent
ENDORSEMENT
Woollcombe J.
Released: June 8, 2015