SUPERIOR COURT OF JUSTICE - ONTARIO

DATE: 2018/06/04

RE: Noor Alazari, Applicant

AND

Leith Al Rubaie, Respondent

BEFORE: Justice Engelking

COUNSEL: John Guest as agent for Allison Lendor, Counsel for the Applicant

Altynay Teshebaeva, Counsel for the Respondent

HEARD at Ottawa: May 10, 2018

ENDORSEMENT

1This is a motion brought by the Respondent, Mr. Al Rubaie, requesting an order “amending” the child support provision in the Interim Order of the Honourable Justice Roger dated September 9, 2016. In his Notice of Motion dated March 12, 2018, Mr. Al Rubaie was seeking a reduction in the monthly support payable from $515 to nil retroactive to November 1, 2016. However, during the argument of the motion, he was seeking that child support payable be nil from November of 2016 to August of 2017, and that it be $200 per month from September 1, 2017 onwards. Mr. Al Rubaie was also seeking a temporary order of access to the children of the marriage, Haneen Zahra Leith Al Rubaie, born August 6, 2004, Helana Al Rubaie, born February 5, 2008 and Abdullah Leith Al Rubaie, born April 11, 2011, every weekend from Friday after school to Sunday evening.

2The Applicant, Ms. Alazari, opposes Mr. Al Rubaie’s motion to vary the existing child support from to November of 2016 to August of 2017 to nil. The parties resolved the access issue prior to the motion being heard by agreeing that Mr. Al Rubaie would have access every second weekend from Friday to Sunday.

3Ms. Alazari also sought to bring a cross-motion seeking an increase in support but only served Mr. Al Rubaie with it at noon on May 10, 2018, the day of this motion. Mr. Al Rubaie had not had an opportunity to provide any response to her cross-motion, and I, therefore, declined to hear it. Only Mr. Al Rubaie’s motion was heard. Consequently, the only issue to be decided by the court is, therefore, whether Mr. Al Rubaie’s child support obligation should be reduced from $515 per month to nil per month as of November 1, 2016 and $200 per month as of September 1, 2017.

4For the reasons that follow, there shall be an order that Mr. Al Rubaie pay $0 per month in support of his three children commencing November 1, 2016, and $515 per month commencing May 1, 2017.

Background Facts

5The parties were married in 2003. According to Mr. Al Rubaie, they separated in December of 2014. According to Ms. Alazari, they separated in March of 2015. For the purposes of this motion, nothing hinges on the date of separation. Ms. Alazari commenced her application in April of 2016.

6At a case conference on September 9, 2016, Justice Roger granted a temporary order which provided that on a without prejudice basis, “the Respondent shall pay child support to the Applicant, for three children based on income of $25,200, in monthly amount of $515, starting on September 15, 2016 and then on the 15th day of every month until further order of this court.”

7On June 26, 2016, Mr. Al Rubaie had sworn a financial statement which provided at paragraph 4 on page 2 that: “Last year, my gross income from all sources was $25,055.49.” The statement also indicated that Mr. Al Rubaie’s then current income was $525 biweekly, for an annual total of $25,200. He was, at the time, employed by Canadian Auto Parts Suppliers. Although this is what was contained in his Financial Statement, attached to it were copies of Mr. Al Rubaie’s Notices of Assessment for 2013, 2014 and 2015. In his Notice of Assessment for 2015, Mr. Al Rubaie’s line 150 income was $15,434.

8Mr. Al Rubaie swore in paragraph 2 of his affidavit of November 17, 2017, that he thought he would not be able to pay child support in excess of $500 per month and that he did not remember agreeing to it. Regardless, in October of 2016, Mr. Al Rubaie lost his job with Canadian Auto Parts Suppliers and was not again earning an income until September of 2017. Mr. Al Rubaie did not provide the court with any particulars as to how he “lost” his job, whether he was laid off, fired or quit. Nor did he provide the court with any particulars of any efforts he made to find new employment from early October to December of 2016.

9Mr. Al Rubaie was arrested on what he described as “non-violent charges” on December 6, 2016 and spent 15 days in detention. He was subsequently incarcerated from January 27, 2017 to April 25, 2017. Mr. Al Rubaie indicated in his affidavit that after his release in April, he “started to look for jobs but could not find a job right away.” He did not provide the court or the Applicant with any particulars with respect to his job search, such as what types of jobs he was looking for, where he was searching, how many applications he made or how many interviews or offers he may have had.

10In his affidavit, Mr. Al Rubaie stated only that he “came across an opportunity to set up my own business, in collaboration with other [sic], as a dispatcher for school buses.” While Mr. Al Rubaie did indeed set up a new business, he states in his affidavit that he did not start earning any income until sometime after September of 2017. Mr. Al Rubaie provided a copy of his 2016 Notice of Assessment which indicates that his line 150 income for that year was $11,864.

11It is on the above basis that Mr. Al Rubaie states that his child support payment should be nil from November to December of 2016 and January to August of 2017.

12For her part, Ms. Alazari states in her affidavit sworn on May 8, 2018 that Mr. Al Rubaie only “recently” started paying $200 per month and that the existing order of Justice Roger is being enforced by FRO. It is her position that Mr. Al Rubaie should be paying $515 per month and that he is working full time and regularly spends elaborately on the children. She states that he has staff and his business is thriving. She opposes his motion to reduce the monthly amount of support.

Analysis

13Mr. Al Rubaie brings his motion to vary the interim support order pursuant to section 17(1) of the Divorce Act. Section 17(4) of the Divorce Act provides that the court must be satisfied that a change in circumstances as per the applicable guidelines has occurred since the making of the order. Section 14 of the Federal Child Support Guidelines provides:

14. For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order;

(a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof;

14Mr. Al Rubaie argues that his loss of employment in early October 2016 and his subsequent unemployment, due in part to incarceration, constitute such a change in circumstances.

15Ms. Alazari argues that Mr. Al Rubaie has been intentionally unemployed or under-employed since October of 2016, and that income at least consistent with that upon which the order of Justice Roger was made should be imputed to him pursuant to section 19(1)(a) of the Federal Child Support Guidelines. Ms. Alazari argues, moreover, that Mr. Al Rubaie has not provided proper or sufficient disclosure to be making the request to the court that he is. Specifically, he has not provided disclosure of;

• His company or business name;

• The name of his business “collaborator”;

• The nature and degree of his interest in the business;

• From where he got the capital to start his business;

• The number or nature of the contracts his business has;

• The revenue or expenses of the business;

• The Financial Statements of the business;

• The position he occupies in the business, or how and how much he is paid;

• When he started drawing a salary and why then;

• The nature of the charges were for which he was incarcerated; and,

• His full personal and business income tax returns.

16Mr. Al Rubaie states that such disclosure is not necessary for the purposes of determining child support, as child support is income based. While I agree that ultimately child support (unless there are reasons to do otherwise) is based on an individual’s total income in his or her T1 General, Mr. Al Rubaie is self-employed. Thus, whether his business is generating revenue, and how and to whom that revenue is being paid out as income, may be relevant considerations in determining income for support purposes. Regardless of that issue, however, which may be one for trial, the bigger question on this motion is whether Mr. Al Rubaie was intentionally unemployed or under-employed from October of 2016 to August of 2017.

17According the Ontario Court of Appeal in Drygala v. Pauli, 2002 41868 (ON CA), 2002 CarswellOnt 3228 (C.A.), a spouse is intentionally underemployed if he or she chooses to earn less than he or she is capable of earning having regard to all of the circumstances (para. 28). There is no requirement that the under-employment or unemployment be undertaken in bad faith or with the intention of avoiding support payments (paras. 29-36).

18In paragraph 37 of Meissner v. Meissner, 2012 1116 (ON SC), Fitzpatrick J. summarized the relevant factors for determining whether to impute income outlined by Chappel J.’s in Smith v. Smith, 2012 3113 (ON SC), as follows:

a. The onus is on the party seeking to impute income to establish an evidentiary basis upon which to establish that the other party is intentionally unemployed or underemployed;

b. It is not necessary to establish bad faith or an attempt to thwart support obligations before imputing income. A payor is intentionally underemployed if they earn less than they are capable of earning having regard for all of the circumstances. In determining whether to impute income on this basis, the court must consider what is reasonable in the circumstances. The factors that the court should consider include the age, education, skills and health of the party, the party’s past earning history and the amount of income the party could reasonably earn if they had worked to capacity;

c. There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their dependents;

d. The court will not excuse a party from their support obligations or reduce these obligations where the party has persisted in un-remunerative employment, or where they have pursued unrealistic or unproductive career aspirations. A self -induced reduction of income is not a basis upon which to avoid or reduce support payments;

e. If a party chooses to pursue self-employment, the court will examine whether this choice was a reasonable one in all of the circumstances and may impute an income if it determines that the decision was not appropriate having regard for the parties support obligations;

f. Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them; and,

g. The amount of income that the court imputes to a party is a matter of discretion. The only limitation on the discretion of the court in this regard is that there must be some basis in the evidence for the amount that the court has chosen to impute.

19While the onus to establish an evidentiary basis on which to impute income is on Ms. Alazari, because this is a motion to vary a temporary order, there is also an onus on Mr. Al Rubaie to demonstrate to the court that his reduction in income as of October of 2016 is one that would constitute a change in circumstances. As Blishen J. has noted in paragraph 17 of Biddle v. Biddle 2004 52809 (ON SC): “The onus is on the parties to prove that there has been an intervening event that would result in a different order.”

20Mr. Al Rubaie has provided no evidence to the court as to the reason he ceased to be employed by Canadian Auto Parts Suppliers. He has provided no employment record from Canadian Auto Parts Suppliers, and no information as to whether he received any payment in lieu of notice, or any unused vacation or sick pay. Nor has he provided any evidence of his efforts to obtain employment between October and December of 2016. Although the circumstances of Mr. Al Rubaie’s termination from his employment are unclear, he was, nevertheless unemployed as of the beginning of October of 2016. Where a loss of employment in involuntary, the court can grant a grace period to allow an individual to seek out new employment. Unfortunately, Mr. Al Rubaie’s period of unemployment was followed by a period of incarceration, in which he could not seek our alternative employment. For this reason, I am prepared to vary Mr. Al Rubaie’s support payable from November 1, 2016 to April 30, 2017 to nil.

21Mr. Al Rubaie, however, provided the court with absolutely no evidence as to his efforts to obtain employment post his release from incarceration. The absence of a reasonable job search can leave the court with no choice but to find that he is intentionally under-employed or unemployed (Filippetto v. Timpano, 2008 3962 (ON SC), 2008 3962 (Ont. S.C.)).

22Mr. Al Rubaie has, additionally, provided no documentation to support his contention that although he started his company in July of 2017, he received no income from it until sometime beyond September of 2017. Indeed, he has provided no evidence about his company whatsoever, except to say: “In July 2017, I came across an opportunity to set up my own business, in collaboration with other[sic], as a dispatcher for school busses. From July to September 2016[sic], I was learning the trade but not earning anything. Even once I started to work in September 2017, I did not start drawing a salary, as the company has to recover expenses incurred in the past.” Mr. Al Rubaie provided no information to the court with respect to what those expenses were or when they had been incurred.

23In the words of Chappel J. above, Mr. Al Rubaie chose to pursue self-employment, and I find that it was unreasonable of him in the circumstances. He had (and has) an obligation “to actively seek out reasonable employment opportunities that will maximize [his] income potential so as to meet the needs of [his] dependents.” He has not done so, or at least, he has not provided any evidence to the court that he has done so. Had Mr. Al Rubaie sought and obtained employment at minimum wage, he would have been making between $28,000 and $29,000 per year, which is more than he was noted to be making at the time that that interim order was made. Not having any evidence as to his efforts to do so, I am prepared to impute income to him. The only evidence I have is that Mr. Al Rubaie is a capable, healthy, 48 year old male. He ought to be earning at least the amount upon which the September 9, 2016 order was based.

Order

24Accordingly, there shall be a temporary order varying Paragraph 3 of the Temporary Order of Justice Roger dated September 9, 2016 as follows:

1. Commencing November 1, 2016, the Respondent shall pay child support to the Applicant, for three children based on an income of $11,864, in the monthly amount of $0;

2. Commencing May 1, 2017, and on the first day of every month thereafter until further order of this court, the Respondent shall pay child support to the Applicant, for three children based on an income of $25,200, in the monthly amount of $515.

3. This order shall be enforced by the Family Responsibility Office, and it shall make adjustments to the amounts owing accordingly.

Costs

25If the parties cannot reach an agreement as to the liability for costs of the motion, written submissions not exceeding three pages together with a bill of costs and offers to settle, can be made to me through the Trial Coordinator. Ms. Alazari’s costs submission are to be provided by June 15, 2018. Mr. Al Rubaie shall then have 10 days to provide his response, after which I will make an order.