Yousefigohar v. Ghanei, 2017 ONSC 502
CITATION: Yousefigohar v. Ghanei, 2017 ONSC 502
NEWMARKET COURT FILE NO.: FC-16-50426-00
DATE: 20170125
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Masoud Yousefigohar Applicant
– and –
Negar Ghanei Respondent
A. Yassavoli-Sani, Counsel for the Applicant
L. Mongillo, Counsel for the Respondent
HEARD: January 18, 2017
McGee J.
RULING ON MOTION
Scope of Motion
[1] The respondent mother served this omnibus motion on January 12, 2017. As drafted, the motion well exceeds the one hour for which it was scheduled. Counsels are gently reminded that a motion is not a trial. Keen discernment of the legal issues that can be properly adjudicated within the time scheduled not only demonstrates respect for the court process, but is the foundation of litigation success.
[2] Within today’s attendance, respondent’s counsel limits the temporary relief sought to:
(a) paragraph 3 (determination of income for support purposes);
(b) paragraphs 4 and 5 (child support from the mother’s date of separation of December 1, 2015. The father asserts February 1, 2016);
(c) paragraph 6 (a proportionate sharing of child care expenses) and;
(d) paragraphs 7 and 8 (spousal support from December 1, 2015).
[3] Counsel for the father consented to these portions of the motion proceeding. Also on consent, the court received the father’s 191 paragraph affidavit deposed January 13, 2017; to which he attaches extensive exhibits numbered up to “XYZ 11” and subdivided into 24 tabs.
[4] The mother’s materials are equally voluminous. Both sets of materials contain numerous inadmissible documents, such as unsworn personal letters, untranslated statements, or those purporting to be translations of an original document, without a copy of the original, or a properly certified translation. Much of the material consisted of solicitor’s letters submitted for the truth of their contents. No reference shall be made to such exhibits. Motions do not suspend the law of evidence.
Nature of a Temporary Motion
[5] Temporary orders are intended to cover a short period of time between the making of the order and trial. Their purpose is to provide a reasonably acceptable solution to a difficult problem. A full investigation of the facts may demonstrate a substantially different order than that granted on a motion. The motions judge must rely on the evidence before him or her. The order must be made in accordance with the Federal Child Support Guidelines and the Divorce Act.
Entitlement to Spousal Support
[6] The parties were married for eight and a half years and are the parents of one son, aged six. Given the length of the marriage, the economic interdependence created by the birth of a child, and their emigration to Canada; I find that the respondent mother is entitled to spousal support.
Incomes upon which Support Obligations must be Determined
[7] In their January 24, 2015 application to emigrate to Canada, the respondent is listed as a mother and housewife, with no assets or income. Since arriving, she has made a great success of herself. She entered the workforce in 2015 earning $4,395; which grew to $13,750 in 2016. She projects her 2017 income at $40,000 from a fulltime position achieved in June of 2016. She is to be commended. She is compliant with the Divorce Act obligation for every spouse to work towards self-sufficiency.
[8] The key issue in this motion is an adjudication of the applicant father’s income. Since separation, perhaps in anticipation of it, he has created a situation of much confusion and contradiction. He resides in Iran approximately two out of every three months, returning to an apartment in Toronto for the remaining month. He has removed all his Canadian assets[^1] and obscured those in Iran. He claims to be the victim of a fraud, within changeable and unsubstantiated claims. At the same time, he continues to operate a wholesale business in cell phone applications and accessories with his brother. The business operates out of Iran, possibly Dubai and on-line through social media. His pattern of travel for business and pleasure defy his claims of impecunity.
[9] The applicant has deposed five Financial Statements in the course of his Application. All show date of separation (February 1, 2016) assets of $630,210; and net family property of zero.[^2] The relevant figures are:
Date of Statement Income[^3] Expenses Debts:
Separation Date Statement Date
Aug 2, 2016 $12,000[^4] $125,076[^5] $2,339,622 $2,339,622
Aug 25, 2016 $12,000 $125,076 $2,339,622 $2,339,622
October 1, 2016 $21,000 $125,076 $2,339,622 $2,339,622
December 2, 2016 $21,000 $125,076 $2,340,967 $2,339,749
January 16, 2017 $19,200 $116,376 $2,340,967 $2,085,741[^6]
[10] His stated assets on each of the Statement dates are:
Aug 2, 2016 $630,210
Aug 25, 2016 $630,210
October 1, 2016 $630,210
December 2, 2016 $838,483
January 16, 2017 $587,395[^7]
[11] How does he maintain expenses of $125,000 on income of $12,000 and $21,000? What is the source of an increase in assets of $208,273 between October and December 2016?
[12] There are further questions. The parties made an economic application to enter Canada from their native Iran in January 25, 2014. The application was nominated by the Province of Manitoba. The application states that the applicant father :
(a) is the Manager and Owner of Yousefi Shop (50%) and Radin Electronic L.L.C. (25%) with a current net assets book value of $200,000 CAD;
(b) is a member of the Tehran Province Guild of Telecommunications Equipment & Accessories, and that he has
i. $104,662 CAD in savings;
ii. $150,000 in fixed deposits;
iii. $700,000 of real property; and
iv. placed a deposit of $131,944 on an apartment in Dubai.
(c) has a total net worth of $1,286,606; $600,000 of which is available for transfer to Canada;
(d) has no debt; and
(e) has an average annual income from September 2007 to present, of 3 Billion Rials ($123,486 CAD converted to today’s currency rate).
[13] Why does he show $1,286,606 of assets in January of 2014, and only $630,000 of assets on February 1, 2016? Why does he show no debt as of January 2014 and $2,339,622 of debts just two years later upon the parties’ separation? These will be questions for trial.
[14] The applicant father has filed two Canadian tax returns in which he has reported, and been assessed on income of 0 in 2014 and $20,779 in 2015. The latter year shows the assessed income as “other income” in accordance with a schedule which has not been disclosed. During submissions his counsel asserted that the “other income” is in fact PayPal receipts earned through the eBay sale of certain items. Counsel assured the Court that he had the PayPal receipts – which he then attempted to collate during submissions, - but had not disclosed. The court declined to receive them.
[15] The applicant’s stated income is woefully insufficient to his acknowledged expenses: $1,800 per month in rent for a Toronto apartment, child support of $500 per month[^8] and cell phone expenses. The stated income cannot be reconciled with his additional under or unstated expenses: credit card payments, quarterly flights to and from Canada, transportation costs in Toronto, his vehicle in Iran and the operating expenses of his Iranian properties. The totality of his expenses are far more consistent with the non-taxable income of $123,486 affirmed within his 2014 emigration application.
[16] One could go further. The applicant’s stated income is further insufficient to the contemporaneous, alleged maintenance of debt payments of $7,300[^9] CAD per month. His counsel submits that he is making such payments through a refinancing of a property in Iran. If so, it is an undisclosed, or improperly valued property. His Financial Statements clearly show no depletion in equity since separation, but for an amount that appears to match a corresponding reduction in debt between December 2, 2016 and January 17, 2017.
[17] Applicant’s counsel spent little time addressing these critical inconsistencies. He made no useful submissions on calculating his client’s income for support purposes. Rather, he unwisely spent his time attacking the respondent’s entitlement to spousal support. He proposes that she has sufficient means of support through the largess of her family of origin. Alternatively, he suggests that payment of debts is his client’s proper priority and that after covering his own financial needs, no monies remain for the support of his former spouse and son, both of whom he has brought to this country.
[18] Sections 15 to 20 of the Federal Child Support Guidelines are the starting points for a calculation of a party’s income for child and spousal support purposes. Section 15 (1) provides that subject to section 15 (2), a spouse’s annual income is determined by the court in accordance with sections 16 to 20. Section 19 (f) of the Federal Child Support Guidelines permits the imputation of income to a payor when he has failed to make financial disclosure while under a legal obligation to do so. Section 19 (f) is equally operative when the disclosure made cannot be true, and is therefore vitiated.
[19] A court is not required to blindly use the income deposed by a party. Courts make findings of income based on the totality of the available evidence. There is no possibility that the applicant father’s reported income is his actual income. I therefore accept the respondent counsel’s proposal that the applicant father’s income be assessed in accordance with his averaged unfunded expenses. Such an approach better reconciles his known expenses and is consistent with the income reported on his 2014 emigration application.
Calculation of Child and Spousal Support
[20] A DivorceMate calculation presented by the respondent offers as non-taxable (auto gross-up) three figures: the rounded expenses of $125,000, the credit card debt of $16,408 and the amount of $12,700. I do not accept this calculation as it has the potential to double count the last figure. I do accept that the applicant’s stated expenses are low based on the absence of credit card, and considerable air and auto travel expenses. There is no evidence as to how much these two categories may overlap. Taking a broad view, I will average the figures, and find the father’s income for the purpose of this motion to be the rounded annual total of $20,000 taxable income and $120,000 non-taxable (auto gross-up) income. I calculate the latter as $100,000 plus a portion of the annual credit card and travel expenses.
[21] The resulting table child support and range of spousal support can be found in the DivorceMate calculation at Schedule ‘A.’ As per the calculation, income for support purposes is $221,490.
[22] There is a significant dilemma in this calculation. The respondent must report the monies received as spousal support for tax purposes. The applicant may not have the ability to deduct payments of spousal support. Only he knows the source of his income, in what jurisdiction it ought to be recorded, and thus, whether that jurisdiction provides for deductibility. Such a dilemma is the payor’s to resolve. Accommodations can be made when the amount of spousal support paid is not deductible to the payor. The applicant is encouraged to make full disclosure of his source(s) of income should he seek such an accommodation.
Orders for Child and Spousal Support and Daycare
[23] Monthly table support for one child on income of $221,490 is $1,792.
[24] Temporary spousal support is to be ordered within the range provided by the Spousal Support Advisory Guidelines unless reasons are provided otherwise.[^10] In these circumstances I find that the Guidelines do provide an appropriate range.
[25] I choose the mid to high range within the Guidelines for the following reasons. The respondent is without any assets in Canada but for modest personal savings and household contents. Prior to separation the applicant removed $107,000 of joint savings from Canada and placed them out of the respondent’s reach. The former matrimonial home is in Iran and is available for the applicant’s exclusive use, as is the balance of the marital assets. The Maher is outstanding. The mother tenders a reasonable budget that to date has been supplemented through family loans – which must be repaid.
[26] The mother seeks proportionate sharing of the before and after-school expenses for their son. The expense is wholly tax deductible, as reflected in Schedule ‘A’ and results in no payment by the father.
[27] The respondent seeks orders commencing December 1, 2015 – a contested date of separation. I do not have sufficient evidence at this time concerning the date of separation, or the date(s) upon which the applicant ceased paying for joint expenses. The calculation set out in Schedule ‘A’ is based on the respondent’s fulltime employment income of $40,000 per annum. I will thus start the calculation as of June 1, 2016; without prejudice to any retroactive claim for the prior period.
[28] Temporary Order to issue :
Commencing June 1, 2016 the applicant father shall pay monthly table support of $1,792 on income of $221,490 to the respondent mother, with credit for monies paid pursuant to the Order of September 1, 2016.
Commencing June 1, 2016 the applicant father shall pay monthly spousal support of $3,400 to the respondent mother.
Support Deduction Order to Issue.
Costs
[29] The respondent has been the successful party per Rule 24 (1) of the Family Law Rules. Costs submissions of the respondent are to be served and filed in the Continuing Record by February 8, 2017, response by February 24, reply, if any by March 3, 2017.
Other
[30] The parties have been separated for a period of one year. Should either wish an order severing the divorce, a 14B motion on 20 days’ notice may be served, and then filed to my attention.
Justice H. McGee
Date: January 25, 2017
[^1]: Including $107,000 in a joint bank account. [^2]: A litigant cannot have a negative net family property value. [^3]: These line items are expressed as annual figures, in Canadian dollars. [^4]: Source of income stated on all Statements: Yousefi Shop 1 Ground FL. [^5]: Expenses in all Financial Statements are exclusive of credit card payments of $12,709 in 2016, and the costs of flights between Canada and Iran every three months. [^6]: Reduction of $254,008. [^7]: Reduction of $251,088. [^8]: Order of September 1, 2016 [^9]: Applicant’s counsel stated in submissions – to the surprise of respondent’s counsel – that the payments were interest only. For the purpose of determining income, it matters not whether the payments are going to capital or interest. [^10]: Fisher v. Fisher 2008 ONCA 11