Court File and Parties
COURT FILE NO.: FS-09-350485 DATE: 2016-06-22 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
AGHIL BEHZADI Applicant
- and - ROSHANAK GOODARZY Respondent
Counsel: Margaret Osadet, for the Applicant Elaheh (Ella) Aiaseh, for the Respondent
HEARD: April 11, 13, 14 & 15, 2016
HOOD J.
REASONS FOR DECISION
Overview
[1] The applicant father (the “AF”) and the respondent mother (the “RM”) were married on July 5, 2006 in Iran. They have two children, Daniel, now 9 years old, born April 24, 2007, and Hanna, now 8 years old, born April 15, 2008. The parties separated on February 19, 2009. Since separation the children have lived with the RM. The AF is now 49 years old and the RM is now 46.
[2] The AF commenced his Application in April, 2009 seeking custody or in the alternative access. The RM filed her Answer in June, 2009 seeking custody, child support and spousal support. There was a first case conference in September, 2009, then the file went dormant.
[3] In June, 2013 pursuant to a consent of July 11, 2013 that became the order of Justice Paisley, the AF began paying child support of $397.00 for Daniel and Hanna based upon an anticipated income of $27,040.00. In the same consent and order the parties agreed to an access arrangement for the AF which has been generally followed although varied from time to time. This has been a relationship which has included allegations of domestic violence. As a result, the pickups and drop-offs of the children have involved friends, neighbours, relatives and the police.
[4] The parties have continuing difficulties and seem unable to agree on much. They were divorced on October 22, 2014.
[5] The issues in this trial are custody, access, the imputing of income, child support, spousal support, s.7 expenses, “retroactive” support, equalization relating to assets allegedly held by the AF in Iran, and a post-separation claim for $5,000.
Custody
[6] In Kaplanis v. Kaplanis (2005), 10 R.F.L. (6th) 373 (Ont. C.A.) at paras. 10 & 11, Weiler J.A. in dealing with a custody case, stated that in order to determine the best interests of the child, there should be evidence of the bonds the child had with each of her parents, each parent’s ability to parent the child, the current parenting arrangements, each parent’s parenting plan and evidence as to how their plan will work.
[7] While the case before me deals with more than custody and includes access, what Weiler J.A. said I believe holds true with respect to access issues too. There was very limited evidence presented to me on any of the matters listed above by Weiler J.A., nor was there much evidence presented as to what access arrangement would be in the best interests of the children, Daniel and Hanna. Each parent gave evidence concerning the inconvenience to them as to either the current access arrangement or the proposed one and why various other pickup or drop-off times would be better for them. However, no parent gave much evidence as to what might be in the best interests of their children in preserving or changing the times for access, let alone what custody arrangement was in the best interests of their children.
[8] Since the order of Paisley J. dated August 6, 2013 the RM has had sole custody of the children. She wants to retain this. The AF, while he claims sole custody or alternatively joint custody, acknowledged in argument that in the circumstances, it was better if one party had custody.
[9] While the RM acknowledges in her testimony that the RF should see Daniel and Hanna, being their father, she is the one who has taken care of the children for the past 7 years and is the one who knows them best.
[10] Currently the AF lives with a friend and his friend’s wife. There is no space for the children to live on a regular day-to-day basis. When he has access for the weekend, he and the children go and stay at his fiancé's home which has more room. The AF testified that, if granted custody, he would obtain suitable accommodation. He gave no evidence as to how he would do this considering his financial situation. That was about the extent of his plan for the children if granted sole custody.
[11] The AF travels to Iran on an annual basis. Historically he has gone once or twice per year for two to four weeks at a time. There was no suggestion from him that these trips would stop. There was no evidence from him as to what his plan would be for the children when these trips occurred if granted sole custody.
[12] As set out above the court requires evidence as to what is in the best interests of the child. There was very minimal evidence on this from either party. However, the RM has had de facto sole custody since the separation in February, 2009 and has had a court order granting sole custody since the order of Paisley J. made August 6, 2013. With no evidence being called in support of a change of custody there is no basis for me to do so. (see Kaplanis, at paras. 10 & 15)
[13] The RM is prepared to grant the AF rights to information from the children’s schools, medical providers and third parties and to advise him as to the names and contact numbers of the professionals involved in the children’s lives, which is his right, in any event, under s.20(5) of the CLRA.
[14] While sole custody shall remain with the RM, she will provide copies of the children’s health cards to the AF and he shall have the right to make decisions about their health on those occasions when they are in his care.
Access
[15] Access for the AF has changed over time. Following separation in February, 2009 the RM filed criminal charges against the AF and as a result he was unable to have any access to the children. In October, 2009 the charges were withdrawn and the parties arrived at a consensual access arrangement where the RM would bring the children to a park where the AF could play with them. He also took them out on his own from time to time.
[16] There was a difference in the evidence as to how often this took place. The AF said that he saw the children maybe 3 to 4 times per week. He also said he saw them almost every day. He also said he saw them every day. The RM said that his visits were irregular at best.
[17] This changed in January, 2013 when the RM again filed criminal charges against the AF resulting from an alleged incident where the AF threatened the RM. These charges were also eventually withdrawn. While the charges were pending the RM denied the AF access. The AF brought a motion and on August 6, 2013, on consent, Paisley J. ordered that the AF was to have access every other weekend from Saturday at 9:00 a.m. to Monday morning. Pickup was to be at the RM’s residence and drop-off was to be at the children’s daycare. To avoid contact between the parties, designated friends of the AF were to pickup the children. Pursuant to this same order the AF agreed to pay child support of $397.00 per month, commencing June 1, 2013, based upon an anticipated income of $27,040.00.
[18] On December 2, 2013 the parties, on consent, varied the access as follows: (a) The Saturday pickups were changed from 9:00 a.m. to 9:30 a.m.; (b) The AF and/or his fiancé were to conduct the pickups with the children being taken to the pickup vehicle by certain designates of the RM’s; (c) Any long weekends were extended to include the holiday Monday; (d) The AF was to have a Monday overnight after the non-access weekend; and (e) The AF was to have access from after school/daycare at 3:30 p.m. to 8:00 p.m. on Mondays and Thursdays except for those Mondays where there was a long weekend or there was an overnight.
[19] On January 30, 2014, again on consent, the access was varied by order of Jarvis J. The Saturday morning pickup was changed from the RM’s residence, which had been in place from January, 2013, to a police station. The time was changed to 7:30 a.m. If the AF did not show by 7:45 a.m. the RM was free to leave with the children.
[20] According to the RM, the AF has not always picked up the children at the stipulated times and hasn’t fully utilized his access. The AF denies this and says he missed one access visit when his car broke down. According to the AF, the RM dresses the children in totally inappropriate or dirty clothing for the Saturday pickups so he is forced to buy new clothes for them for the purpose of their drop-off on Monday morning at school/daycare. He further alleges that they never have their lunch pails on Saturday so he has to buy new ones. The RM denies these allegations.
[21] There were numerous unsubstantiated allegations by both parties about the other’s misconduct at, or concerning, the pickups. There were also conflicting stories about alleged inappropriate activities when the other had the care and control of the children. What this disclosed to me is that the parties still have an inability to communicate and act as two reasonable adults where the other party is concerned. While I accept that both of them love their children they must learn to put their differences aside in the best interests of the children. In terms of their respective access suggestions they should focus on their children’s best interests as opposed to what is convenient to each of them in terms of access.
[22] The parties are in agreement that the access for the AF on alternate weekends should continue. The AF wants weekday access and wants to keep the Monday but change the Thursday to a Wednesday. The RM wants to remove weekday access altogether arguing it is not in the children’s best interests.
[23] The AF wants the weekend pickups to take place on Saturday morning, as is the case now, but at a supervised access centre at 9:30 am, or the RM’s home, rather than the current pickup at 7:30 am at the police station. Both sides agree the police station is no longer needed or appropriate. I agree that it is not in the best interests of the children to have any exchanges take place at the police station. Exchanges there would only heighten the tension between the parties. The less police involvement the better for the children and the parents.
[24] The AF wants the weekend drop-offs to take place on Sunday night because he has difficulty in getting the children to the school/daycare on Monday morning because of his job. He says he has to leave for work at 5:30 am on Mondays which makes it difficult to arrange for the children to be dropped off. His fiancé takes the children but because she has to drop off her own son first at another location, Daniel and Hanna are often late for school. He wants to drop the children off at an access centre or at the RM’s home. The access centre closes at 5:00 pm on Sunday so any drop-off would have to be before then.
[25] The RM wants the weekend drop-offs to continue to occur on Monday morning. Her reason is that she works or studies Sunday night.
[26] The AM is opposed to the use of the access centre for drop-offs because, in her view, it is the same as a police station with its negative connotations for the children. I agree.
[27] Whatever one side suggested the other opposed and vice versa. There was very limited evidence given to me from either side as to why certain schedules were preferable over others. There was no evidence as to what was in the best interests of the children. The RM argued that midweek access was not in the best interests of children relying upon H.(K). v. R.(T.K.), 2013 ONCJ 418 at para. 67, where Sherr J. eliminated Wednesday access. The RM argued that this decision stood for the proposition that as a general rule midweek access was inappropriate. The case does not stand for that proposition. On the facts of that case, where evidence was called as to the specific problems associated with Wednesday access, Sherr J. eliminated it.
[28] I had no evidence as to problems associated with the current Thursday evening access by the AF. There was no evidence that I could discern from the AF as to why he wanted the current access changed to Wednesday.
[29] In my view, it is better for the children due to stability and predictability that the status quo should remain with respect to the weekly access by the AF. He shall pick the children up from school or the after school daycare as is currently the case, and shall drop the children off at the RM’s home at 8:00 p.m. on Mondays, as is currently the case, except when he has weekend access for a Monday long weekend and on Thursday. If the Monday is on a long weekend and a non-access weekend for the AF, the AF shall have no access on Monday. The children shall be with the RM for the entire long weekend.
[30] As previously mentioned there was some evidence from the AF, although limited, that the Monday morning drop-off on alternate weekends was problematic, and a cause of stress for the children being late for school, and a Sunday night drop-off at the RM’s home would be better. The RM in turn gave evidence that this would be difficult for her because of her work at the dental clinic or her studies. No explanation or detail was given as to why it was difficult or how the difficulties could be addressed. In considering the best interests of the children and weighing the problems associated with the children getting to school late on Mondays versus the undisclosed difficulties for the RM on Sunday nights, I find in favour of the children and order that the alternate weekend drop-off is to take place on Sunday evenings at 8:00 p.m. at the RM’s home. Children want stability. They want to know that they won’t be late for school. They do not need this stress. A Sunday drop-off will ensure this. In addition, the RM, on the non-access weekends, already has to make some arrangement for the Sunday night to look after the children if her work or studies interfere. She can make similar arrangements, if need be, on the access weekends.
[31] Both the AF and RM also put forward the suggestion that access could be for entire alternate weeks. There was absolutely no evidence called as to why this would be appropriate. I am not prepared to make this order, especially with children aged 8 and 9.
[32] As to the alternate weekend pick-up I find pickup Friday from school or the after school daycare at school to be preferable to Saturday morning. The AF complains that with the Saturday pick-ups the children do not have their lunch boxes and are dressed in “dirty” and inappropriate clothes, which necessitates him having to constantly buy new lunch boxes and clothes. The RM denies this. Without making any finding as to whose evidence to believe, having a Friday after school pick-up will eliminate these allegations as a point of conflict. The children will already have their lunch boxes and the children will be picked up in the clothes they have worn to school, which the RM testified are always appropriate for school. When the AF returns the children on Sunday night he shall ensure that they have their lunch boxes and that they are wearing or have with them the same clothes they were wearing on Friday when picked up. This arrangement will also reduce the interaction between the parties.
[33] No evidence was called and no position was taken concerning holidays or days such as Mother’s Day, Father’s Day, March Break or summer holidays. I gather from this that the parties have been or will be able to work this out on their own.
[34] The parties did agree, in final argument that communicating by Family Wizard would be appropriate. Each party shall be responsible for the cost, if any, of their enrolment in the program.
Income of the AF
[35] While the parties separated in February, 2009 and the Application was issued on April 29, 2009 and the first case conference held on September 25, 2009, the AF did not commence paying child support until 2013. In July, 2013 the parties agreed, on a without prejudice basis that, commencing June 1, 2013, the AF would pay child support for his two children in the amount of $397.00 per month based upon his anticipated 2013 income of $27,040.00.
[36] The RM argues that the AF is either failing to report his income or is underemployed. She asks that the court impute an annual income of $85,000.00 to the AF for the purposes of both child and spousal support. There was no evidence as to what this income would mean for child support or spousal support payments.
[37] The AF argues that his income is less than the figure of $27,040.00 being used for child support and for 2015 was actually $22,150.00.
[38] The AF once worked as a truck driver. He admits that he owns a numbered company called 'Yellow Leafs Inc.' He also admits that at one time during the marriage he provided truck transportation services to different transport companies through Yellow Leafs. While all of this may be so, his reported income from driving a truck was minimal. For example, his reported income from 2007 for self-employment was only $8,582.00.
[39] The RM at Exhibit 19 provided copies of cheques from 2007 written on the account of Yellow Leafs which showed sizeable payments to various family friends, rental payments for their apartment in 2007, and a payment to the AF’s then lawyer. From this she argued that if one added up those cheques alone and then took judicial notice of the tax rates in 2007 to gross up the cheque amounts, that the cheque payments showed that Yellow Leafs earned $77,000.00 in 2007 which was the equivalent today of $85,000.00 being the RM’s figure for imputed income for the AF.
[40] The AF testified that these cheques were written using lines of credit of Yellow Leafs and not from income in the bank created by Yellow Leaf. The money was not paid back and eventually he went bankrupt. He did acknowledge in cross-examination that the payments to his friends, which amounted to approximately $46,000.00, were actually for him, as his friends would cash the cheques from Yellow Leafs and then give him the cash, but again that this was debt not income. If it was income it certainly was not reported on his 2007 return.
[41] On the limited evidence before me, I am unable to conclude that Yellow Leafs generated $77,000.00 in income in 2007 and that somehow I can convert this amount into 2015 dollars to arrive at $85,000.00 and to then impute this as 2015 income for the AF.
[42] The AF gave evidence that he currently works as a handyman/caretaker for the Friendly Little Campus Daycare Centre. They have two locations and he works there from around 5:30 a.m. or 6:00 a.m. to 7:00 a.m. or 7:30 a.m. when they open to students and then in the evening after 6:00 p.m. when they close. He is paid $13.00 per hour and is paid for 35 hours per week, at a minimum, whether he puts in that much time or not. If he works more than 35 hours he is paid for that.
[43] In his evidence, he said that once he finishes at 7:00 a.m. or 7:30 a.m. he goes home and watches TV until he has to go back to the daycare after 6:00 p.m. He claims that while he is considering going back to work as a truck driver sometime in the future, because he could make more money being a driver, he presently is unable to do so because of his current problems caused by this court case, which makes it impossible for him to concentrate and pay proper attention while driving a truck.
[44] There was no evidence as to what sort of truck he used to drive or would drive although in cross-examination he stated that driving a tractor trailer causes stress. For all I know he could have been a delivery van driver, which is really no different than driving a car, which he acknowledged he was still able to do despite this legal proceeding. Nor was there any medical evidence to support his claim that he was incapable of driving a truck.
[45] In cross-examination, the suggestion was made to him that he was in fact working as a truck driver based upon his Hwy 407 account statements for February to June, 2014, which showed frequent use of the 407 primarily between the Hurontario entrance in Brampton and the Highway 404 exit, in conjunction with his chequing account statements from June, 2014 to October, 2014, which showed his Petrocan use and regular purchases at Tim Hortons. There was no evidence as to where the Petrocan stations or the Tim Hortons outlets were located.
[46] The AF stated that the 407 was used to travel to and from work. As for the Petrocan charges, he did not know what they were for. He admitted they could be gas charges but also suggested that he might have been doing some grocery shopping at the Petrocan. Without evidence as to where the Tim Hortons outlets were located, the fact that in 2014 there were weekly small purchases means little.
[47] I am not satisfied that this limited evidence establishes on a balance of probabilities that the AF was working as a truck driver in 2014, nor can I conclude that he is currently working as one, let alone what his income would be as a truck driver.
[48] No case law was cited by either counsel on the issue of imputing of income.
[49] Section 19 of the Ontario Child Support Guidelines allows the court to impute income if it finds that the AF is earning or is capable of earning more income than claimed. Imputing income allows the court to give effect to the ongoing obligations of parents to support their children. In order to meet this obligation, the parents must earn what they are capable of earning. If they fail to do so, they may be found to be intentionally underemployed. The onus of establishing intentional underemployment is on the person requesting an imputation of income. They must establish an evidentiary basis upon which this finding can be made. (see Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552 (Ont. C.A.) at para. 28)
[50] If satisfied that the payor is intentionally underemployed the burden shifts to him to prove, to the satisfaction of the court, that his underemployment status is, for example, because of his health or his reasonable educational requirements. (see Drygala v. Pauli, (2002), 61 O.R. (3d) 711 (Ont. C.A.) at paras. 38 & 39 and Rilli v. Rilli, [2006] O.J. No. 4142 (SCJ) at para. 18)
[51] I find that the AF is underemployed. On his own evidence, his employment at the daycare amounts to perhaps 4 hours per day or maybe 20 hours per week. His pay stubs at Exhibit 7 for 4½ months from 2013 have no bearing to reality when they show that he worked 40 hours per week. He has a current arrangement where he is paid $13.00 per hour for 35 hours regardless of how many hours he actually works. He claims he is paid $13.00 per hour in 2016 which is the same amount he was paid in 2013. He travels to Iran once or twice a year for extended periods of time. He acknowledged that he spent his time between the opening and closing of the daycare watching TV. He also gave evidence that if he wasn’t watching TV, he drove around in his fiancée’s car. He also gave evidence that he could not remember how he found the job at the daycare. Since this is his only reported job for many years, I find this evidence to be implausible. I also find his evidence that he cannot recall when he last worked as a truck driver to lack credibility.
[52] He has no explanation why he works so little. He is not taking any educational courses to upgrade his skills. He claims that he is unable to drive a truck due to concentration problems caused by the stress of his marital proceedings. There is absolutely no corroborating evidence of this. In his own evidence, he is not in counselling for this, he is not taking any medication for this, and he has not seen any doctors for this. The onus is on him to establish why he is underemployed. He did not present anything.
[53] What income is properly imputed to the AF? The RM asks for $85,000.00. I have already rejected that amount. The little amount of time working at the daycare allows the AF to find other employment, even if part-time. That is preferable to watching TV or driving around in his fiancée’s car. He claims that whenever he needs money, in addition to what he earns at the daycare, that he asks his fiancée and she provides him with funds. His expenses on his most recent financial statement, filed at trial as Exhibit 20, amount to just under $22,000.00 per year and about $500.00 less than his total income of $22,500.00. He says this is because he does not pay rent to his friend or his fiancée and because he leads a simple life and does not smoke or drink. His expenses do not include any costs associated with travelling to Iran once or twice a year.
[54] While I don’t accept the AF's financial statements, I cannot arbitrarily pick a figure as imputed income. That is what the RM is asking me to do based upon cheques from the AF’s company from 2007. While the AF claims the caretaker job is full-time, it is in reality a part-time job. He is free for most of the day. Rather than watching TV or driving his fiancée’s car, the AF should be working. He claims he makes $22,500.00 per year. It is reasonable to assume that he could earn twice this amount if he worked full-time. I impute an income for 2015 for child support purposes of $45,000.00 per year. I direct the parties to attempt to agree upon a number and if unable to do so I will make a supplementary endorsement as to the amount.
Spousal Support
[55] The AF admits that the RM was financially dependent on him during the marriage. The marriage was for approximately 2 ½ years.
[56] The RM worked in Iran as a dentist. When the parties moved to Canada in 2006, the RM was unable without proper accreditation to work as a dentist. However, she did not need to do so as the AF earned a good income and she was busy looking after their two young children.
[57] Since separation, the RM has worked in the dental field and currently is doing a co-op at a dental clinic in Mississauga. I gather, as there was no direct evidence on this point from the RM, that based on her most current financial statement she does not receive any remuneration while on the co-op. Her long range plan is to take the necessary courses and write the appropriate exams, when she has the funds to do so, in order to obtain her international dentistry accreditation. She expects that this will take 3 to 4 years. As a result, she asks that spousal support should be for 3 to 4 years.
[58] The AF acknowledges that even through the marriage was of short duration, it is open to the court to find that the RM is entitled to support because there are two young children of the marriage.
[59] I have considered the provisions of s.15.2 of the Divorce Act. In moving to Canada, the RM gave up her dentistry practice in Iran and while married stayed at home to look after the children where she was financially dependent upon the AF. Since separation, she has looked after the children and finds herself at an economic disadvantage due to the separation. In order to get by, she relies upon the financial assistance of others, primarily her sister, from who she borrows money. The AF on the other hand does not appear to have suffered from the marriage breakdown. He travels regularly to Iran. His debt has not increased despite his reported low income. While during the marriage, the RM did not need to seek dentistry accreditation in Canada she is doing so now in the hopes of becoming self-sufficient. It is reasonable for her to do so.
[60] In considering the means, needs and other circumstances of the parties and the economic hardship suffered by the RM from the marriage breakdown, I conclude that she is entitled to spousal support. In the absence of any objection from the AF, as to the range suggested of 3 to 4 years, I find that the mid-point of 3 ½ years is appropriate.
[61] I impute an income of $45,000.00 per year for the AF for spousal support purposes. While the cases mentioned in the section dealing with the income of the AF deal with the imputation of income for the purposes of determining child support, courts have applied the same rationale for spousal support. (see Mann v. Mann at para. 15). For the purposes of the spousal support calculation, the RM’s income shall be $14,599.00 in accordance with her financial statement of March 18, 2016. I direct the parties to exchange Spousal Support Advisory Guidelines calculations, using the above input data and to agree upon a number, failing which I will make a supplementary endorsement as to the amount.
Section 7 Expenses
[62] Based upon the incomes of the parties of $45,000.00 and $14,599.00, the sharing of s.7 expenses shall be 75% and 25%.
[63] The evidence presented by the RM as to the s.7 expenses incurred by her was not that helpful. It should have been a relatively easy task to put in evidence as to what had been paid for and to provide supporting documentation if it was available or explain why there is no documentation.
[64] This was not done. At the end of the RM’s evidence, I was unsure as to how much had been paid, for what and when. I was unclear as to what the RM had paid for and what was subsidized by the City of Toronto. I was unclear as to the times and regularity of the activities. I was unclear which child was doing what. Some payments were allegedly in cash, some were by cheque but only a few cheques were provided.
[65] One exception was for Hanna’s eyeglasses. The RM had receipts from 2014 and 2015 which totalled $559.00. The AF is to pay 75% of this amount, or $419.25 to the RM.
[66] The RM was also able to provide a total of 3 cheques for $300.00 each paid to a caregiver who the RM uses to pick up and drop off the children at school when the RM is unable to do so because of her work schedule or her school schedule. The AF is to pay 75% of the total amount of $900.00 or $675.00 to the RM.
[67] For the court to award the RM anything else for past s.7 expenses would just be guesswork and inappropriate. However, on a go forward basis, the AF is to pay for 75% of the s.7 expenses incurred by the RM after April 1, 2016. The RM is to provide receipts or proof of payment to the AF on a monthly basis if she expects payment from the AF for the children’s activities and after school care. The current activities include swimming, skating, skiing, dance, basketball, art and Kumon. No further activities are to be arranged by the RM, if she expects financial contribution by the AF, without his prior written consent. The AF shall be free to enroll the children in programs or activities, at his own expense, on his weeknight access evenings.
Retroactive Child Support
[68] The RM is asking for a lump sum payment for child support representing the period of March 1, 2009 to March 31, 2016. The start date of March 1, 2009 is based upon the parties separating in February, 2009. In the RM’s Answer filed June 25, 2009, she asked for child support retroactive to the date of separation.
[69] While the RM framed this lump sum payment as “retroactive” child support it really is not retroactive as it is post-application support or prospective support following the issuance of an application or answer that is being sought. I was provided with the case of D.B.S. v. S.R.G. 2006 SCC 37, [2006] 2 SCR 231 which deals with the issue of retroactive child support, although as Bastarache J. notes at paragraph 2, that of the four appeals dealt with by the court, not all of them were truly retroactive in nature.
[70] Bastarache J. listed four factors, with none being decisive and recognizing that his list of four factors was not complete. He stated that the court should strive for a holistic view of the matter and decide each case on the basis of its individual financial matrix. His four factors were reasonable excuse for the delay, conduct of the paying parent, circumstances of the children and hardship to the paying parent.
[71] As to delay, while the Answer claiming child support was served soon after the separation, the proceeding was dormant from September, 2009 until July 11, 2013 when a consent arrangement was entered into with respect to access and child support. There was no explanation for this delay. Thereafter the matter slowly moved its way to trial, with numerous adjournments, conferences and non-compliance with orders by both sides. There was no explanation as to why it took from July 2013 to get to trial before me in April, 2016. While I am aware that child support is the right of the children unreasonable delay militates against a retroactive award of the sort being requested.
[72] With respect to the conduct of the AF, from June, 2013 the AF made the agreed upon child support payments. There was no evidence as to what if anything was or was not paid between separation and 2013, other than the RW testifying that she did not ask for any support prior to 2013. Nor was there evidence as to what should have been paid based upon the AF’s income during this time frame. He testified that he wasn’t working in 2009. There was no evidence as to what his income was for 2010. His 2011 tax return filed as Exhibit 12 showed an income of $14,937.00. He testified that due to health reasons, he worked on and off in 2012. The RW testified that in 2012, the children were in the custody of the AF for a number of months. In 2012, the AF had a reported income of $16,640.00. In 2014, his reported income was $11,406.00. All of these amounts would have resulted in a smaller monthly child support payment than what the AF started paying in June 2013.
[73] I am hard pressed on the evidence before me, which was minimal at best, to find blameworthy conduct on behalf of the AF which would result in a retroactive award. Using the example of Bastarache J. at paragraphs 106 and 107 of D.B.S. v. S.R.G., there was no evidence that the AF hid his income increases, that he intimidated the RW in order to dissuade her from bringing an application for child support or that he misled the RW into believing his child support obligations were being met when he knew that they were not. Nor was there any evidence that the AF knowingly avoided or diminished his support obligations to his children.
[74] As to the third factor, there was no evidence as to a change in the children’s standard of living post separation compared to that pre-separation. While the RM may have suffered hardship in having to look to family members and in increasing her debt, in order to meet the children’s needs, that is irrelevant if the children did not suffer hardship because of non-payment.
[75] With respect to the fourth factor, hardship on the AF, I believe that any retroactive award will be a hardship to the AF and will place too great a burden on him. Even with an imputed income of $45,000.00, the RM’s request for 7 years of retroactive child support will undoubtedly lead to hardship. While Bastarache J. was discussing true retroactivity of a claim before formal notice actually being given to the payor parent, his comments at paragraph 123, that it will usually be inappropriate to delve too far into the past, hold true here in considering the hardship to the AF. As well, I am only imputing an income to the AF for 2015. To retroactively apply this income to previous years would be unfair, inappropriate and inequitable in all of the circumstances, where the evidence I have shows that the AF was making much less between 2009 and 2014.
[76] Accordingly, I am not prepared to make an order for a lump sum payment of child support as requested and this claim is dismissed.
Retroactive Spousal Support
[77] The RM is asking for a lump sum payment for spousal support representing the period of March 1, 2009 to March 31, 2016. The start date is again based upon a separation date of February, 2009. In the RM’s Answer filed June 25, 2009 she asked for spousal support retroactive to the date of separation. Again this is more properly described as prospective support than retroactive support.
[78] No case law was provided to me on this particular issue by either side. The argument of the AF was that any award would create a financial hardship, there was a three-year limit on any retroactive award and because the AF, for the time in question between 2009 and 2014, made less than the floor amount no spousal support payment would have been ordered in any event. The RW’s argument was simply because it was claimed in the Answer I should make the order back to 2009.
[79] In Bremer v. Bremer (2005), 3938 (ONCA) at para. 9, the court set out eight considerations governing retroactive spousal support - past need and the ability to pay, the basis for ongoing support, the reason for retroactive support, the effect on the payor, blameworthy conduct of the payor, notice to seek support, delay and the explanation for it and the appropriateness of the order. In Fisher v. Fisher, 2008 ONCA 1120 at para. 76 the court stated that retroactive support should be available when the recipient establishes that “he or she was entitled to a greater amount of interim support, the respondent had the ability to pay, and the imposition of retroactive support would not create undue hardship for the payor.”
[80] While I am satisfied that the RW has established an entitlement to spousal support and I have found that support is appropriate going forward, there was no evidence from the RW that the AF has the ability to pay spousal support back to 2009 and that the imposition of a lump sum order back to 2009 would not create undue hardship for the AF. As with the claim for “retroactive” child support there was no explanation for the long delay from separation to trial. I also have a concern that considering the AF’s income between 2009 and 2014 any award for spousal support would have been inappropriate as his income during those years was below the floor amount.
[81] Accordingly, I am not prepared to make an order for a lump sum payment of spousal support as requested and this claim is dismissed.
Equalization
[82] The RM claims equalization with respect to assets allegedly held by the AF in Iran. She alleges that the AF had a bank account in Iran with an approximate balance of $18,000.00 at the time of separation, and that he had a property in Iran bought before separation which sold for more than $400,000.00 in 2013.
[83] The RM served a Request to Admit, marked as Exhibit 10 at trial, which referred to both the bank account and the property. The request was served on March 7, 2016. Pursuant to Rule 22 of the Family Law Rules, the AF was to respond on or before March 28, 2016. He did not do so. Counsel for the AF stated that the AF denied the statements made about the bank account and the property found at paragraphs 11 to 19 of the Request to Admit, and that it was through her inadvertence that the required response was not served in time. The AF asked for leave to serve and file his response dated April 11, 2016 at trial.
[84] The RM’s Answer dated June 25, 2009 makes no mention of the bank account or property. Her Financial Statement of June 25, 2009 makes no mention of either nor does her Financial Statement of March 18, 2016 although her Net Family Property Statement of March 16, 2016 filed as Exhibit 24 does.
[85] Exercising my discretion I allowed the response to the Request to Admit to be filed. It was marked as Exhibit 11. To deny the AF the right to now serve and file the response, when it was his counsel’s admitted mistake in not serving a timely response, would be unfair to the AF and would cause him prejudice that could not be remedied. When I ordered that the response could now be served and filed, the RM did not request an adjournment of the trial in order to gather the evidence to prove the now denied statements about the bank account and property. The RM was prepared to continue with the trial with her request and the response both going in as evidence.
[86] Without the Request to Admit, there was no evidence of the bank account other than the RM’s assertion which was denied by the AF. I am unable to find on a balance of probabilities that this bank account existed at the date of separation or that it contained $18,000.00.
[87] With respect to the property, the RM gave evidence that when in Iran she looked after a building and had a key for it. While she may very well have done so, there was no admissible evidence that the AF owned a building in Iran. The AF denied it.
[88] The RM tendered a four-page document which her counsel alleged was proof of the AF’s ownership of a property in Iran and its value. The document was a photocopy. The document, which was marked as Exhibit A, was not attached to an expert’s report nor was it certified or authenticated in any way. It consisted of two back pages of Arabic with two pages of English attached on top. The RM gave evidence that her father had obtained this photocopied document from somewhere in Iran. He did not give evidence as to how he got this document or what it was.
[89] While it had on the first page, of the two pages in English, a stamp alleging that the document was a true translation, it failed to comply with s. 125(2)(b) of the Courts of Justice Act as there was no affidavit of a translator certifying the translation of the two Arabic pages into English.
[90] Moreover, there was no witness who gave evidence as to what the underlying two pages of Arabic purported to be and what it proved. There was no expert to give evidence on Iranian law and no expert’s report explaining what this photocopied document allegedly was.
[91] If this was a document relating to property in Ontario, absent agreement of the parties, s. 53 of the Evidence Act would have to be complied with in order for the document to be admissible. Ten days’ notice would have to be given to tender a certified copy of a registered instrument relating to land in Ontario. It was not suggested that any such similar notice was given here. I cannot be less stringent in relation to the admissibility of documents allegedly dealing with foreign property than I am with respect to documents dealing with Ontario property. For all of the foregoing reasons I was not prepared to admit Exhibit A into evidence.
[92] Without any evidence I am unable to find on a balance of probabilities that the AF owned any land in Iran or that he sold it for in excess of $400,000.00 following separation. Accordingly, neither party had any NFP and there is no equalization.
Non-Removal Order
[93] The children, according to the RM, have Iranian birth certificates and passports, although both were born in Canada. According to her, the AF, being male, has extraordinary power in Iran and if the children were ever taken by him to Iran, she would be powerless to get them back.
[94] She testified that in 2012, she was in Iran, and at the direction of the AF, her Iranian passport was taken by Iranian officials so that she was not allowed to leave the country. Her Canadian passport meant nothing for purposes of travel out of Iran. Eventually, the AF relented and she was allowed to leave Iran with the children in the fall of 2012. Her evidence on this was not contradicted by the AF. I accept her evidence on this.
[95] The AF travels to Iran once or twice a year for two to four weeks at a time. Clearly he still has close connections with Iran.
[96] I have granted custody to the RM. I believe it to be appropriate to make an order that the AF shall not remove the children from Ontario without the consent of the RM, such consent to not be unreasonably held, or by court order. The children’s Iranian birth certificates and passports shall be placed in the possession of the RM if currently in the possession of the AF.
[97] The RM shall have the authority to travel with the children out of Ontario without the consent of the AF.
The Post Separation Claim
[98] At a trial management conference on January 2, 2015 before Stevenson J., she ordered that the RM was to amend her Answer to include this claim in order for it to be dealt with at trial. The RM did not do so. However, no objection was made by the AF when the RM testified about this claim at trial or filed exhibits related to it.
[99] The RM alleged that she gave the AF $5,000.00 in 2011 for him to assist her in buying a used car for her from a friend who ran a used car dealership. A bank draft for $5,000.00 from the RM’s account was made an exhibit at trial.
[100] According to the RM, the car was to be hers but instead the AF ended up registering it in his name. According to the Bill of Sale filed as part of Exhibit 25, the vehicle cost $8,249.00, so that the additional funds of $3,249.00 required for its purchase came from someone else other than the RM. There was no evidence from whom.
[101] She alleged that while in his name, she drove the car for the balance of 2011 and some of 2012 before he took the car away in 2012 and in turn sold it in 2013.
[102] There is no evidence of the alleged agreement with the AF. There is no evidence that the $5,000.00 actually went to the purchase of the vehicle listed in the Bill of Sale. At the time the vehicle was purchased, the RM was an undischarged bankrupt. It would have been unwise to have the vehicle in her name. While the Bill of Sale indicated the AF was the purchaser there was no evidence as to whose name the car was actually registered to. There is no evidence as to what happened with the proceeds when the vehicle was allegedly sold.
[103] The RM has not made out her claim against the AF for $5,000.00. This claim is dismissed.
Conclusion
[104] Based upon the foregoing a final order shall go on the following terms:
(1) The RM shall have sole custody of the children of the marriage, namely, Daniel Behzadi, born on April 24, 2009 (“Daniel”) and Hanna Behzadi, born on April 15, 2008 (“Hanna”) (collectively, the “children”), and the children shall have primary residence with the RM.
(2) The AF shall have access to the children alternate weeks, from pick up every other Friday at the children’s school/daycare, from the end of daycare, to drop off on Sunday evenings at 8:00 p.m. at the RM’s residence, commencing Friday, July 8, 2016. When dropped off the AF shall ensure that the children are wearing or have with them the same clothes they were wearing when picked up and have their lunch boxes if they had them when picked up.
(3) The AF shall have access to the children on each Monday and Thursday, from pick up at the children’s school/daycare, from the end of day/care, to drop off at 8:00 p.m. at the RM’s residence, commencing Monday, July 11, 2016.
(4) If the Monday is a statutory holiday that coincides with the AF’s access weekend, the drop off at the RM’s residence shall take place on the Monday evening at 8:00 p.m. rather than Sunday evening at 8:00 p.m.
(5) If the Monday is a statutory holiday that does not coincide with the AF’s access weekend, the AF shall not have any access on that Monday and the children shall remain with the RM.
(6) The Temporary Order of Justice Jarvis, dated January 30, 2014 shall and is hereby terminated and is of no force and effect.
(7) On the exchanges at the RM’s residence, the children shall say their farewells to the AF inside the vehicle and the AF shall stay inside the vehicle at all times.
(8) Neither party shall disparage or speak ill of the other or discuss any issues regarding the children’s custody or access or spousal support or child support or other financial issues between them with the children or in their presence. Both parents shall encourage the children to have a healthy and respectful relationship with the other parent and his or her extended family and encourage the children to attend their scheduled parenting time with the other parent.
(9) The AF and RM shall communicate by Family Wizard, with each party being responsible for the cost, if any, of their respective enrolment in the program.
(10) Both parents shall have the same rights to information and documentation as a custodial parent from the children’s schools, medical providers and any other third party caregiver or professional involved with children and, if necessary, both parties shall execute any necessary consents to the release of such information.
(11) Both parents shall provide the other with the names and phone numbers of all professionals in the children’s lives (such as doctors, teachers, therapists, social workers, dentists, counselors, etc.) and shall advise the other parent if there is any such change in these professionals. The RM shall provide copies of the children’s health cards to the AF. The AF shall have the right to take the children to any health care professional and make decisions about their health and welfare while in his care.
(12) The AF shall be free to enroll the children in programs or activities, at his own expense, on his weeknight access evenings.
(13) The AF shall provide the RM with the children’s Iranian birth certificates and passports within 15 days of today’s date and the RM shall be entitled to apply for a renewal of the children’s Canadian passports without the AF’s consent.
(14) The AF shall not remove the children from Ontario without the consent of the RM, such consent to not be unreasonably withheld, or by court order. The RM shall have the authority to travel with the children out of Ontario without the consent of the AF.
(15) An income of $45,000.00 for 2016 shall and is hereby imputed to the AF for all child and spousal support payments.
(16) The AF shall pay the RM table child support payments for the support of the children, commencing April 1, 2016 and on the first day of each month thereafter, based on his annual imputed income $45,000.00 and the Child Support Guidelines.
(17) The AF’s proportionate share of section 7 expenses shall and is hereby set at 75% and the RM’s share at 25%, in accordance with the RM’s actual income of $14,599.00 and an annual imputed income of $45,000.00 to the AF.
(18) The AF shall pay the RM for his 75% proportionate share of the section 7 expenses incurred by the RM for Hanna’s eyeglasses in the amount of $419.25 and the caregiver costs in the amount of $675.00.
(19) The AF shall pay the RM for his 75% proportionate share of all future section 7 expenses incurred by the RM after April 1, 2016 upon provision of documentation from the RM including proof of payment for after school care and the children’s current activities of swimming, skating, skiing, dance, basketball, art and Kumon. No further activities are to be arranged by the RM, if she expects financial contribution by the AF, without his prior written consent.
(20) The AF shall pay to the RM spousal support, commencing on April 1, 2016 and on the first day of each month thereafter, up to and including December 1, 2019, based upon his annual imputed income of $45,000.00, $14,599.00 for the RM and the Spousal Support Advisory Guidelines.
(21) With respect to paragraphs 16 and 20, by June 30, 2016, counsel for the RM shall provide to counsel for the AF, the RM’s Divorcemate statements that reflect the abovementioned inputs. By July 7, 2016 counsel for the AF shall accept the RM’s statements or provide statements on behalf of the AF. If by July 14, 2016 the parties are not in agreement as to either or both of the monthly child support and spousal support payments, counsel for the RM shall forward the statements to my attention, where there is disagreement, and I will make a supplementary endorsement as to the amount or amounts to be paid.
(22) The AF shall comply with s.25 of the Federal Child Support Guidelines and shall provide the RM with his 2016 Tax Return on or before June 30, 2017 along with any notice of assessment or reassessment. If the AF’s line 150 income is less than $45,000.00 there shall be no change to the child support payments. If the line 150 income is greater than $45,000.00 then the child support payments shall change in accordance with the Child Support Guidelines and be paid commencing April 1, 2017. The AF shall continue to comply with this requirement on an annual basis on or before every June 30th so long as child support is payable.
(23) The RM’s claims for retroactive child support, retroactive spousal support, equalization and the post-separation claim are dismissed.
(24) Any arrears created by this order in relation to spousal support, child support and s. 7 expenses may be paid by the AF at the rate of $100.00 per month, starting on August 1, 2016.
(25) This order bears interest at the post-judgment interest rate set pursuant to the Courts of Justice Act, R.S.O. 1990 c.C.43 on any payment or payments in respect of which there is a default, from the date of default.
(26) Unless this order is withdrawn by the Director of the Family Responsibility Office, it shall be enforced by the Director, and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.
(27) The parties shall attempt to reach an agreement on costs. If unable to do so, the RM may file brief written submissions, not to exceed three typed double-spaced pages, together with a Bill of Costs and any necessary documents, such as offers to settle, on or before July 14, 2016. Any reply submissions, subject to the same directions, are to be filed within three weeks of service of the initial submissions. I understand that often the parties, following service, file their submissions as part of the continuing record. The court office does not always bring the submissions to the court’s attention as they are unaware that the court is waiting for these submissions. Accordingly, I direct the parties to not only file their respective cost submissions as part of the continuing record, but to also provide a copy directly to Judges’ Administration, Room 170, at 361 University Avenue, to my attention.
Released: June 22, 2016 Hood J.
COURT FILE NO.: FS-09-350485 DATE: 20160622 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: AGHIL BEHZADI Applicant - and - roshanak goodarzy Respondent REASONS FOR DECISION HOOD J. Released: June 22, 2016