COURT FILE NO.: FC-14-2444-001 DATE: 2018/10/12 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ghada Hourieh, Applicant -and- Fayez Roumieh, Respondent

BEFORE: Justice P. MacEachern

COUNSEL: Applicant, Self-Represented, assisted by Andrew McGregor with leave of the court Respondent - in default

HEARD: October 11, 2018

ENDORSEMENT

Overview

[1] This is a Motion to Change the child support provisions of the Order of Master Fortier dated March 23, 2017. The Respondent father has not filed a Response to the Motion to Change, which was served on him on June 2, 2018 by personal service, nor did he appear at the first court appearance held on July 18, 2018.

[2] This matter proceeded as a default trial on September 6, 2018. It was adjourned on that date to allow the Applicant to provide further evidence. It continued on October 11, 2018, at which time the Applicant also provided oral evidence.

Background

[3] The parties were married in Syria in 2003. They separated in 2010. At the time of separation, the Respondent was working for the United Nations in New York. The Applicant returned to Syria with their two children, Nuur Roumieh, born July 18, 2005, and Tala Roumieh, born June 26, 2007.

[4] The parties were divorced in Syria in 2010. There was no custody or child support Order made in Syria. The Applicant moved with the children to Ottawa, Ontario, Canada in 2012, where they have continued to reside. The Respondent continues to reside in New York.

[5] The final Order of Master Fortier dated March 23, 2017 (“the 2017 Order”) was issued on the consent of both parties. It provides for the Applicant to have sole custody of the children, who primarily reside with her, and for the Respondent to pay child support, with various related child support provisions pertaining to annual income exchange, annual adjustments of child support, sharing of s.7 expenses and life insurance to secure the Respondent’s child support obligation.

[6] The 2017 Order was based on the Respondent’s 2015 income of $132,000 U.S. The Applicant’s 2015 income was $7,962. She does not receive any spousal support from the Respondent.

[7] The Applicant’s income in 2017 was $11,591.58. The Applicant testified that she expects her income in 2018 to be between $17,000 and $19,000, made up of income from part-time employment of approximately $12,000 per year, plus additional income of between $5,000 and $7,000 per year earned as an Uber driver.

[8] The Applicant commenced this Motion to Change on May 11, 2018 due to the Respondent’s failure to provide his updated income information and to pay his contribution towards s.7 expenses as provided under the 2017 Order.

Issues and Analysis

Annual Update to Child Support

[9] Paragraph 6 of the 2017 Order provides for the Respondent to pay the Applicant child support for the two children in the amount of $2,425.77 per month based on the Respondent’s 2015 income of $132,000 U.S.

[10] Paragraph 6 of the 2017 Order provides that if the Respondent’s income changes in the future:

“…the child support amount payable shall be adjusted in accordance with the Federal Child Support Guidelines based on an American currency which shall then be converted to a Canadian currency and provided to the Applicant forthwith.”

Paragraphs 21 and 22 of the 2017 Order provide:

“21. The parties shall exchange Notices of Assessment or proof of income provided by the United Nations by March 1st of each and every year, and support shall be adjusted on May 1st of each and every year in accordance with the Child Support Guidelines. In the event that the father does not receive a Notice of Assessment due to the nature of his income, the father shall provide a letter from his employer outlining the father’s income for the previous year.

22. The child support amount shall be adjusted in accordance with the Federal Child Support Guidelines.”

[11] The Applicant seeks to update child support as of May 1, 2018, as provided in the 2017 Order, based on the Respondent’s income being $141,135 U.S.

[12] The Respondent has not provided his income information as required under the 2017 Order. I accept the Applicant’s evidence that in August of 2017 and again on May 2, 2018, she made requests for the Respondent’s 2016 and 2017 income information, and that the Respondent has not provided this to her.

[13] The Applicant has provided the Respondent with her income information. The Applicant’s Notices of Assessment for 2014, 2015 and 2016 were served on the Respondent with the Motion to Change material. I accept the Applicant’s evidence that she has provided the Respondent with proof of her 2017 income by providing him with copies of her T4 statements, which show that her income in 2017 totaled $11,591.58.

[14] The Applicant has provided a number of exhibits upon which she relies to calculate the Respondent’s current income as being $141,135 U.S. per year. This is based on the publicly available pay scales for U.N. employees, assuming that the Respondent holds a P-3 pay grade, and has advanced each year to the next level within his pay grade, which the U.N. information indicates is the norm.

[15] The P-3 pay grade is consistent with the terms of the 2017 Order which state that the Respondent’s income was $132,000 U.S. in 2015, when adjusting for the post-adjustment amount of 66.9% that is also included in the Respondent’s income. The post-adjustment amount is also confirmed by the U.N. information provided by the Applicant.

[16] Given the above, I am satisfied based on the evidence before me that the Respondent’s 2017 income for child support purposes was $141,135 U.S.

[17] The Applicant has provided evidence in support of the exchange rate from U.S. to Canadian currency being 1.315 as of August 19, 2018, which I accept as the current exchange rate to be used in this matter.

[18] Under the methodology agreed upon in the 2017 Order, the Respondent’s income in U.S. dollars is applied to the Child Support Guidelines table amounts, to arrive at a monthly table amount of $1,974 (being the table amount payable for two children for a payor with annual income of $141,135). This amount is then converted to Canadian currency, using the exchange rate of 1.315, to result in an updated monthly child support payment of $2,595.81.

[19] Absent the parties’ agreement in the 2017 Order to determine child support in this manner, I would not be utilizing this method. The Respondent’s income should first be converted into a Canadian dollar amount, and then applied to the tables, which is not what has been done here. But the parties have agreed to a method for adjusting child support, which has been incorporated into an Order, and there no basis before me upon which this methodology should be changed at this time.

[20] Based on the Applicant’s evidence with respect to the Respondent’s income, as well as the fact that the Respondent chose not to respond to this proceeding even though he had notice in the Motion to Change material that the Applicant’s position was that his income was at least $141,135 U.S. [2], I am satisfied that the amount of child support payable under paragraph 6 of the 2017 Order should be adjusted to $2,595.81 effective May 1, 2018, based on the Respondent’s 2017 income being $141,135 U.S., with an exchange rate of 1.315.

Extraordinary Expenses for 2015 and 2016

[21] Paragraph 20 of the 2017 Order requires the Respondent to pay the sum of $2,214 Canadian within 30 days of receiving the receipts for the extraordinary expenses for 2015 and 2016 in this amount. This amount remains unpaid. The Family Responsibility Office, which is enforcing the child support, is unable to enforce this amount because no due date is specified in the 2017 Order.

[22] The Applicant seeks an Order stating that this sum is now due, so that it can be enforced. I accept the Applicant’s evidence that the Applicant provided the Respondent with these receipts after the 2017 Order, and provided these receipts to him again by email sent on September 18, 2018. These receipts are attached as Exhibits to the Applicant’s affidavits.

[23] Accordingly, paragraph 20 of the 2017 Order is changed to provide that the Respondent owes the Applicant the sum of $2,214 Canadian with respect to extraordinary expenses incurred in 2015 and 2016, and that this amount is payable in full forthwith.

Extraordinary Expenses for 2017

[24] The 2017 Order provides that the parties will share the children’s extraordinary expenses in proportion to their incomes. The Applicant’s evidence, which I accept, is that the Respondent has not provided any reimbursement for such expenses since the 2017 Order, despite her requests.

[25] Based on the evidence before me, I find that in 2017, the Applicant incurred extraordinary expenses totaling $2,968, which were reasonable and necessary expenses for which the Respondent has an obligation to contribute. These include expenses for activities the children have been involved in for many years, including ringette, soccer, gymnastics, music lessons, Koranic lessons, as well as some medical expenses.

[26] Based on the Respondent’s 2017 income being equivalent to $185,592.53 Canadian [3], and the Applicant’s income in 2017 being $11,591.58 Canadian, the Respondent’s proportionate share of these expenses is 94.1%. Accordingly, the Respondent shall pay to the Applicant the sum of $2,792.89 as his contribution to extraordinary expenses incurred for the children by the Applicant in 2017, forthwith.

Ongoing Extraordinary Expenses

[27] The Applicant’s evidence is that she continues to incur extraordinary expenses for the children. The children continue to be involved in soccer, ringette, and Koranic school as well as other activities. The Applicant has produced receipts totaling $2,365 for extraordinary expenses she has incurred for 2018 to date.

[28] The Applicant has also provided evidence that one of the children will require orthodontic treatment, for which an estimate has been provided for a total cost of $6,675, payable over two years. Her evidence is that this expense will begin in the summer of 2019, after the youngest child turns 12.

[29] Although the 2017 Order requires the Respondent, at paragraph 13, to provide coverage for the children’s dental expenses through his employment, the Applicant’s evidence is that the Respondent has never provided her with information for such coverage, although she has requested it.

[30] Due to the Respondent’s failure to provide any reimbursements towards extraordinary expenses since the 2017 Order, the Applicant seeks an order requiring the Respondent to pay to her a fixed monthly sum based on her incurring extraordinary expenses of at least $2,365 per year, plus the orthodontic expenses which will be $3,337.50 per year for two years, so that the Family Responsibility Office will enforce these amounts.

[31] I find the above expenses are reasonable and necessary expenses for the benefit of the children to which the Respondent is required to contribute his proportionate share.

[32] Based on assuming the Respondent’s income is equivalent to $185,592.53 Canadian per year (based on his 2017 income and in the absence of information to the contrary), and the Applicant’s current income increasing to $19,000 per year, the Respondent’s share of these expenses is 90.7%. This results in the Respondent having an obligation to contribute $2,145.05 [4] per year towards the extraordinary expenses ($178.75 per month) plus $3,027.11 [5] per year, for two years, towards the orthodontic expenses (or $252.26 per month).

[33] I find that there has been a change in circumstances that warrants a change in the 2017 Order with respect to the sharing of s.7 expenses. This change is due to the Respondent’s failure to comply with the terms of the 2017 Order by providing his income information, the dental coverage, and payment of the $2,214 amount for 2015 and 2016 expenses. Accordingly, I make the Orders below that change paragraphs 16, 17, and 18 of the 2017 Order to provide for fixed monthly sums to be payable by the Respondent towards s.7 expenses.

Orders

[34] In summary, I make the following Orders:

1. The Order of Master Fortier, dated March 23, 2017, is hereby changed as follows: a. The amount of child support payable by the Respondent to the Applicant pursuant to paragraph 6, for the support of Nuur Roumieh, born July 18, 2005, and Tala Roumieh, born June 26, 2007, is changed effective May 1, 2018 to be $2,595.81 (Canadian) per month. This amount is based on the Respondent’s 2017 income being $141,135 U.S., and a U.S. to Canada exchange rate of 1.315. b. Paragraph 20 is changed to provide as follows: “The Respondent shall pay to the Applicant the sum of $2,214 (Canadian) as his contribution for extraordinary expenses incurred in 2015 and 2016. This amount is payable in full forthwith.” c. Paragraphs 16, 17, and 18 are changed to provide as follows: “16. Commencing January 1, 2018, and continuing on the first day of each subsequent month until varied by further Court Order or agreement of the parties, in addition to the monthly table amount of child support payable under paragraph 6 above, the Respondent shall pay to the Applicant the sum of $178.75 per month as his share of the s.7 expenses incurred for the benefit of the children, not including orthodontal expenses which are provided for below. This sum is based on these s.7 expenses totaling, as of January 1, 2018, $2,365 per year, and the Respondent’s proportionate share of these expenses being 90.7% based on his income being equivalent to $185,592.53 Canadian (based on his 2017 income being determined to be $141,135 U.S.), and the Applicant’s 2018 income being $19,000 per year in 2018.

   17. In addition to the amounts payable under paragraph 6 and 16 above, commencing July 1, 2019, and continuing on the first day of each subsequent month through to and including June 1, 2021, the Respondent shall pay the sum of $252.26 per month as his proportionate contribution (90.7%) to the orthodontal expenses which are estimated to be $6,675 payable over two years.

   18. The Respondent shall also pay to the Applicant his proportionate share, which shall be 90.7% until varied by further Court Order or agreement of the parties, of any additional expenses (i.e. not otherwise included in paragraph 16 and 17 above) incurred for the benefit of the children pursuant to s.7 of the Child Support Guidelines.”

2. In addition, the Respondent shall pay to the Applicant the sum of $2,792.89 as his contribution to extraordinary expenses incurred for the children by the Applicant in 2017, forthwith. This sum is based on the Respondent’s 2017 income being determined to be equivalent to $185,592.53 Canadian, and the Applicant’s income in 2017 being $11,591.58, such that the Respondent’s share of these expenses, which totaled $2,968, is 94.1%.

Costs

[35] The issue of costs was not addressed at the default hearing. If the Applicant seeks an amount from the Respondent with respect to costs, she may make written submissions to me on this issue, to be filed with the Court to my attention on or before October 30, 2018. Such submissions shall be no more than three pages in length, plus any offers to settle and bills of costs, and shall comply with Rule 4.01(1) of the Rules of Civil Procedure. [6]

Justice P. MacEachern Date: October 12, 2018

Footnotes

[2] The Applicant in her Motion to Change in fact took the position that the Respondent’s income was $152,000 U.S. [3] $141,135 U.S. converted to Canadian dollars using an exchange rate of 1.315 is $185,592.53 [4] 90.7% of $2,365 = $2,145.05. $2,145.05 divided by 12 = $178.75 [5] 90.7% of $3,337.50 = $3.027.11. $3,027.11 divided by 12 = $252.26 [6] Rules of Civil Procedure, R.R.O. 1990, Reg. 194