CITATION: Karrawan v. Mabrouk, 2015 ONSC 7451

COURT FILE NO.: FS-13-3729-00

DATE: December 1, 2015

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

KARRAWAN KARRAWAN

Self-represented

Applicant

• and -

NADA MABROUK

James A. Brown, for the Respondent

Respondent

HEARD: November 10, 12, 16 &17 2015

REASONS FOR JUDGMENT

Baltman J.

1This was a trial to resolve various financial and parenting issues between the parties, who are the common law parents of two young children. The major dispute concerns what amount of income, if any, should be imputed to the Applicant father for purposes of child support. He claims that for a variety of reasons he is unable to earn anything. For the reasons that follow, I find the father is deliberately under-employed and impute to him an annual income of $41,392.

2During this trial Mr. Karrawan also tried repeatedly to assert various property claims. However, as I explain below, he is an undischarged bankrupt and therefore has no status to make those claims.

Factual Background

3Karrawan Karrawan (his first and last names are identical) and Nada Mabrouk are 39 and 36 years old, respectively. They met in February 2007 and moved in together that same month.

4In August 2007, Mr. Karrawan purchased a home on Creditview Road, in Brampton. The couple moved into that home. They later had two children, C.K., born September 1, 2009 (now 6), and A.K., born July 15, 2011 (now 4). The family lived together at the Creditview home.

5By August 2010, Mr. Karrawan was experiencing financial difficulties, including significant debts to the CRA. In order to shield the property from creditors he transferred the family home to Ms. Mabrouk.

6On April 16, 2012, he filed an assignment in bankruptcy. He received an automatic discharge on April 17, 2013.

7On June 17, 2013 the couple separated. The breakup was tumultuous, involving a physical altercation followed by Mr. Karrawan’s arrest by police. A charge of assault was ultimately resolved by Mr. Karrawan entering into a peace bond and agreeing not to be within the vicinity of the family home.

8On August 27, 2013, Mr. Karrawan commenced an application claiming, amongst other things, that Ms. Mabrouk had been unjustly enriched and that he was entitled to assert an interest in the Creditview home on the basis of constructive trust.

9Ms. Mabrouk and the children continued to live in the house until the spring of 2014, when Ms. Mabrouk sold it. The net proceeds were approximately $260,000.

10In April 2014, Mr. Karrawan brought a motion before Barnes J., seeking an order that the proceeds of sale be held in trust, and that Ms. Mabrouk return two automobiles (which are in her name) along with his share of $45,000 he claimed to have placed in her bank account.

11Justice Barnes released 50% of the proceeds (i.e. $130,000) to Ms. Mabrouk and ordered that the remaining 50% be held in trust. He deferred any determination on the remaining financial issues for the trial, and ordered Ms. Mabrouk to preserve the vehicles pending trial. Ms. Mabrouk’s appeal of that Order (she had been seeking all of the house proceeds) was dismissed by Dawson J., who assessed costs against Ms. Mabrouk in the sum of $2,600. Those costs remain unpaid and Mr. Karrawan seeks their recovery as well.

12At this point the Trustee in Bankruptcy learned of the sale proceeds from the Creditview property and brought a motion to recover Mr. Karrawan’s share. On January 22, 2015, Justice Penny declared the Trustee in Bankruptcy to be the sole owner of any interest Mr. Karrawan has in the Creditview property.

13Importantly, Penny J. further stipulated that “the Trustee is reappointed for the purpose of administering the assets of the estate”. The practical effect of this order is that Mr. Karrawan remains an undischarged bankrupt, and therefore has no standing to assert a claim for any property acquired before his ultimate discharge.¹ Moreover, even if such a claim was successful on its merits, any property recovered would belong to the Trustee. For those reasons there is no point in adjudicating any property claims.

14Unfortunately, while the property issues are no longer relevant, Mr. Karrawan remains very bitter over their outcome. He is furious that Ms. Mabrouk recovered any proceeds from the family home, seemingly of the view that she was complicit in his effort to evade creditors and therefore should fare no better than he.

15Ms. Mabrouk used her share of the house proceeds to purchase a townhome in Milton, where she now resides with the children. In addition to caring for the children full-time, she does a modest amount of commission sales work from home, and earns rent from a tenant. Her parents also provide financial help. Her taxable income in 2014 was $6,099.

16Mr. Karrawan lives with his father in a two bedroom apartment in Mississauga. He claims to be unemployed, with no sources of income. Pursuant to minutes of settlement signed at the outset of the trial, the couple has agreed that he will have access to the children on alternate weekends. Due to their volatile relationship the parents exchange the children at the 22 Division police station, in Brampton. They both testified that on several occasions they have argued at the station, in the children’s presence.

The Legal Framework

17Section s.19(1)(a) of the Child support Guidelines provides:

19(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the parent or spouse…

18Section 19 is an exception to the method of calculating income set out under s. 16, which determines income according to the “total income” set out in the payor’s most recent income tax form, and under s. 17, which considers the payor’s patterns of income over the past three years.

19The onus is on the party requesting the court to impute income to establish the grounds for that remedy: Homsi v. Zaya, 2009 ONCA 322, at para. 28; Drygala v. Pauli, (2002) C, 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (C.A.).

Evidence and Analysis

a) Child Support

20The following chart summarizes Mr. Karrawan’s declared earnings over the recent years:

2009: $50,451

2010: $21,509

2011: $47,080

2012: $10,480

2013: $41,392

2014: $17,670

21It is apparent that his earnings have fluctuated over the years. Mr. Karrawan explained that he is a certified floor installer and worked in that field for several years. In 2009, the year their first child was born, he earned $50,451. According to Mr. Karrawan, a lowered demand in 2010 resulted in less work, and his salary decreased to $21,500. Demand improved in 2011, bringing him back up to $47,080. In 2012 - the year he declared bankruptcy - he transitioned to working as a truck driver, claiming it was less demanding physically. He became licensed to drive a truck, and that year he reported income of only $10,480. However, in 2013 he continued driving (for Pylon Paving) and earned $41,392.

22As noted above, the couple separated in June of 2013. Mr. Karrawan testified that he continued to work until December of that year but then stopped because there was no more work available. For the first six months of 2014 Mr. Karrawan received employment insurance benefits. When they expired, he applied successfully to have his benefits extended on medical grounds for another four months. That took him to the end of 2014, with a total of $17,670 in benefits.

23Although Mr. Karrawan remained employed from the date of separation (June 17, 2013) to the end of 2013, he has paid no child support whatsoever for that period. When the parties appeared before Justice Dawson in May 2014, he declined Ms. Mabrouk’s request for retroactive child support and deferred that issue for trial, on the basis that the record before him was inadequate. Dawson J. ordered temporary child support going forward based on Mr. Karrawan’s “projected” employment insurance income of $19,316 for the year 2014. Mr. Brown, counsel for Ms. Mabrouk then and now, did not challenge that figure.

24Even now, at trial, Mr. Brown is content to limit Ms. Mabrouk’s claim for retroactive child support for the 2014 year to the employment benefits received by Mr. Karrawan. Those benefits turned out to be $17,670 in total, rather than the amount of $19,316 previously projected. In any case, in 2014 Mr. Karrawan failed to pay the guideline amount for either income, deciding unilaterally that he would pay only a portion of what was owed.

25As for 2015, Mr. Karrawan claims that since the beginning of this year he has been unable to earn any income, either by way of employment or government benefits. He has given contradictory explanations for this. On the one hand, he claims there was no work available. On the other hand, he states he is medically unable to work. Neither proposition is supported by the evidence.

26Darryl Gardner, a good friend of Mr. Karrawan, testified that he works as a senior estimator at Pylon Paving, Mr. Karrawan’s former place of employment. He testified that in 2013 he gave Mr. Karrawan a job as a truck driver at Pylon. Mr. Karrawan was paid “in the low 20 per hour”, i.e. slightly over $20 per hour. When asked why Mr. Karrawan stopped working there, Mr. Gardner stated that Mr. Karrawan was distracted and anxious. He would show up late and his mind wasn’t on the job. Mr. Gardner attributed Mr. Karrawan’s psychological state to his marital dispute.

27Mr. Gardner explained that eventually, even though Mr. Karrawan was one of his oldest friends, he “had to let him go”. Importantly, he did not suggest that was because of any shortage of work. On the contrary, he stated “I hope he will work with me again.” According to Mr. Gardner, the only reason Mr. Karrawan isn’t working there now is because Mr. Karrawan doesn’t feel “comfortable to commit himself to the job”. Mr. Karrawan has never produced to him any medical documentation confirming an inability to work.

28Mr. Karrawan’s attempts to get another job are modest, at most; he claims he applied to five or six companies for a truck driving position, with no success. Given his evidence that “right now I don’t think I can work”, I question how motivated or persistent any efforts to date have been.

29As for any alleged disability, the evidence is scant and unpersuasive. Mr. Karrawan filed four letters² from medical doctors, as follows:

1. Report from Dr. Z. Jancelewicz, dated November 23, 2010

Dr. Jancelewicz is an allergy specialist. The report documents complaints of hay fever and itchy skin. Testing confirmed that Mr. Karrawan is allergic to dust and mould, amongst other substances. Dr. Jancelewicz recommended various medications and antihistamines. Contrary to Mr. Karrawan’s evidence, he did not suggest that Mr. Karrawan should avoid work in the construction industry or indeed that any type of employment was contraindicated. I note that this assessment is now five years old and has never been updated.

2. Letter from Dr. Gyongyossy, dated July 28, 2014

Dr. Gyongyossy has been Mr. Karrawan’s family physician for many years. This one line letter, addressed “To Whom it may concern”, merely states that [Mr. Karrawan] is “unable to work at this time for medical reasons”. There is no indication of what complaints were made, what examinations were conducted or, most importantly, on what basis Dr. Gyongyossy concluded that Mr. Karrawan was unable to work. By its timing, the letter appears to have been prepared specifically to support Mr. Karrawan’s claim for Ontario Disability benefits.

3. Report from Dr. M. Sabouba, dated October 31, 2015

Dr. Sabouba is a family physician who works at a walk in clinic near Mr. Karrawan’s home. This “report” is very brief (six sentences), and is addressed to “whom it may concern”. Dr. Sabouba indicates that he saw Mr. Karrawan twice for “clinical depression” – August 29^th and October 30^th, 2015.

Based on Mr. Karrawan’s complaint that he was “stressed out with symptoms of depression” because of his “divorce/custody” proceeding, Dr. Sabouba prescribed an antidepressant. There is no indication of what observations Dr. Sabouba made of Mr. Karrawan or, more importantly, to what extent, if any, Mr. Karrawan’s “depression” disabled him from gainful employment.

4. Report from Dr. Gyongyossy dated November 7, 2015

This “report” was prepared just before the trial began, and is again very short (four sentences). After advising that Mr. Karrawan has been under his care “for depression” since January 2014, Dr. Gyongyossy opines that Mr. Karrawan’s depression is “primarily due to difficulties arising out of his divorce”. Dr. Gyongyossy then adds that Mr. Karrawan has ongoing “difficulties concentrating” as a result of his depression, and continues to visit him for treatment.

In contrast to his report in 2014, Dr. Gyongyossy does not suggest that Mr. Karrawan is unable to work.

30The “reports” boil down to little more than this: i) based on Mr. Karrawan’s subjective complaints, his doctor thinks he is depressed; and ii) on one occasion over a year ago, his doctor said he cannot work, for undisclosed reasons. The reports are conclusory and superficial, unsupported by any reliable evidence. More importantly, nowhere does any physician suggest that Mr. Karrawan’s “depression” disables him from employment.

31Finally, the letters from Drs. Gyongyossy and Sabouba were all generated after Ms. Mabrouk brought her motion for child support (May 2014); there was no mention of disability when Mr. Karrawan began this proceeding, in August 2013. At that point he was working full steam, earning nearly $3,500 per month.

32For all those reasons the medical reports should be given little weight in determining whether income should be imputed to Mr. Karrawan.

33Mr. Karrawan testified that in addition to his problems with depression, he has difficulty concentrating at work and is therefore a hazard to others. Not only do the medical reports not identify any such problem, Mr. Karrawan’s presentation at this trial completely contradicted that assertion; he showed no difficulty following the proceedings or responding to the issues. He always arrived on time and appeared to be acutely aware of what was in dispute at any given moment.

34Mr. Karrawan deposed that he also has a weak left shoulder, for which he’s getting physiotherapy. He suggested that was another reason he can’t work. My response is threefold: 1) he produced no medical documentation in support of that injury; 2) he is right handed and therefore the injury is not to his dominant arm; and 3) the injury dates back to June 2013, and did not prevent him from earning a substantial income during the remaining months of that year.

35Mr. Karrawan testified that he now has no income whatsoever. He lives with and is largely dependent upon his father, including pocket money for any day to day expenses he might have. He has also borrowed money from friends, including Mr. Gardner, who has loaned him close to $10,000.

36On the weekends when he has the children he borrows his father’s car to pick them up and they all stay together, with his father, in the two bedroom apartment. He has not gone back to school or tried to upgrade his job skills in any way. He appears to have given up entirely on ever getting a real job.

37Mr. Karrawan blames all his problems on Ms. Mabrouk. He can’t get a job because he’s depressed about their separation. He can’t see the children more often because she has both their cars.³ He can’t afford a home of his own because she took all their money. Nowhere in this scenario is there a plan to help himself, keeping in mind that he is relatively young (39), physically fit and was - until shortly after separation - gainfully employed at over $40,000 per year.

38I do not accept that he cannot find a job anywhere. Even a minimum wage job would pay approximately $20,000. And Mr. Karrawan conceded in cross-examination that he still gets requests to do flooring jobs – as he explained, “that’s how good I was” - but declines them.

39I accept he is depressed. So are many people who continue to battle with their former partner over children and money. But that is not a license to withdraw from the work force and live off one’s father. Based on the evidence, he has both the ability and opportunity to earn a salary comparable to what he earned in 2013; Mr. Gardner wants him back, but he’s decided he’s not able.

40After weighing the evidence, I conclude that income of $41,392 should be imputed to Mr. Karrawan, being the amount he earned in 2013, the year of separation. Given Mr. Brown’s position that he is not seeking to impute income retroactively before 2015, that amount is imputed retroactive to January 1, 2015.

41The following chart summarizes the amounts payable, received and owing for the relevant years:

Payable

Paid

Owing

2013 (July to December)

$3,624.00 (6 months x $604 per month) Based on actual income of $41,392

0

$3,624.00

2014

$3,237.60 (12 months x $269.80 per month) Based on actual income of $17,670

$1,369.41

$1,868.19

2015

$7,248.00 (12 months x $604 per month) Based on imputed income of $41,392

$1,228.15

$6,019.00

Total

$14,109.00

$2,597.00

$11,512.00

42The total arrears outstanding for the years 2013-2015 inclusive are $11,512. Mr. Karrawan is entitled to a credit of $2,600 against that amount to reflect costs owed by Ms. Mabrouk, leaving a net amount of $8,912 in arrears.

b) s. 7 Expenses

43Ms. Mabrouk also brought a claim pursuant to s. 7 of the Child Support Guidelines for contribution by Mr. Karrawan to the children’s expenses. She identified a small number of expenditures for drugs that had been medically prescribed for the children. Beyond that, however, she did not specify what expenses or activities she seeks to have compensated; rather her counsel, Mr. Brown, wants a blanket order for any future expenses she may incur on behalf of the children.

44While s. 7 permits orders based on “estimated” expenses, they must be both necessary and reasonable. I accept that any medically prescribed expenses meet both those criteria; however, beyond that there is no evidence of specific expenses and therefore I cannot assess, in the abstract, whether they are reasonable and necessary. Should such expenses arise, the matter can be revisited on a motion to vary.

c) Custody

45Section 24 of the Children’s Law Reform Act provides that any decision respecting custody or access by a court shall be determined on the basis of the best interest of the child. In so doing, a court shall consider all the needs and circumstances of the child, including various enumerated factors set out in the legislation.

46As noted above, the parties have agreed the children’s primary residence shall be with Ms. Mabrouk, and that Mr. Karrawan shall have access on alternate weekends.

47However, Mr. Karrawan seeks joint custody, arguing that unless he is formally recognized as a custodial parent Ms. Mabrouk will take advantage of her authority and unfairly exclude him from important decisions.

48Given the high level of conflict I do not believe joint custody is feasible in this case. It is simply unrealistic to expect that the parents can cooperate on any essential decisions affecting the children’s well-being. That said, I understand Mr. Karrawan’s wish to be informed about any significant medical or educational developments in the children’s lives. I believe that is adequately addressed by recent minutes of settlement in which the parties agreed that both parents may attend all school events, functions and parent-teacher meetings and that if either child requires emergency medical care while with one parent, that parent will promptly notify the other.

Conclusion

49I order as follows:

a) Ms. Mabrouk shall have sole custody of C.K. and A.K.;

b) Mr. Karrawan shall pay Ms. Mabrouk arrears of child support in the sum of $11,512, to be set off by $2,600 in costs owed by Ms. Mabrouk, leaving a net sum of $8,912 payable as arrears;

c) From January 1, 2016 onward, Mr. Karrawan shall pay child support in the sum of $604.00 monthly, based on an imputed annual income of $41,392;

d) The parties shall share any drug or medical expenses for the children that have been prescribed by a physician. The ration for sharing pending further Order is 87% by Mr. Karrawan and 13% by Ms. Mabrouk, based upon his imputed income of $41,392 and her income of $6,099;

e) On or before June 1^st every calendar year, each party shall provide the other with their Income Tax Return, all supporting documentation and Notice of Assessment, so that child support continues in accordance with the Federal Child Support Guidelines;

f) Unless the support Order is withdrawn from the Office of the Director of the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the support Order shall be paid to the Director, who shall pay them to the person to whom they are owed;

g) The Order of Barnes J. dated April 28, 2014 regarding the Dodge Challenger and the 2006 Volkswagen Jetta is rescinded; Ms. Mabrouk may deal with those vehicles as she sees fit.

50If the parties cannot agree on costs, they may each make written submissions no more than five pages long, along with any offers to settle and a Bill of Costs. Ms. Mabrouk shall deliver by December 10th, 2015 and Mr. Karrawan by December 17^th.

Baltman J.

Footnotes

1. 1The Trustee is aware of Mr. Karrawan’s claims against Ms. Mabrouk but has declined to participate in this action, presumably because there is little value in any of the remaining property.
2. 2The letters were unsworn; however, Mr. Brown did not object to their admission, and, mindful that Mr. Karrawan was self-represented, I allowed them into evidence.
3. 3He declined Ms. Mabrouk’s offer to expand his weekend access to include Friday overnights, claiming he can’t get hold of a vehicle on Friday evenings in order to pick up the children.