COURT FILE NO.: FS-16-412842
DATE: 20190828
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Abbas Nassar
Applicant
– and –
Safae Saleh
Respondent
On his own Behalf
Jermall Estwick for the Respondent (Moving Party)
HEARD: August 27, 2019
C. Gilmore, J.
REASONS ON MOTION
Overview and background
[1] This is the respondent mother’s motion for temporary sole custody, ongoing and retroactive child support, an order to dispense with the applicant father’s consent to apply for the children’s passports and a release of funds from trust.
[2] The father resists the mother’s motion. He seeks joint custody of the children. He does not agree to pay Table child support but instead offers an amount significantly less. His position is that paying Table support would create hardship for him given his low-income level. The father has provided an Offer for retroactive support in his materials, but it is less than his obligation even at the most minimal level.
[3] The parties separated in September 2016 after 13 years of marriage. They have five children, I.N. aged 14, S.N. aged 11, S.N. aged 9, B.N. aged 7 and I.N. aged 6. In October 2016 the parties entered into a temporary access agreement whereby they shared time with the children equally.
[4] The Office of the Children’ Lawyer has had extensive involvement with this matter. A report containing interim recommendations was filed on July 25, 2017. That report recommended that the two younger daughters spend more time with their mother, but that the father continue to remain involved in the children’s lives. Family counselling was strongly recommended. It was recommended that the children spend each weekend from Friday after school until Monday morning school/daycare drop off and Wednesday overnight to Thursday. By this point the eldest child was refusing to see her father and the two middle children were expressing concern about the treatment they received from their father and the conditions in his home.
[5] The Office of the Children’s Lawyer was clearly concerned about the dysfunction in the family, the allegations of violence and the parties’ continuous complaints about the other’s parenting. They released the interim report in 2017 with the hope that family counselling would assist in determining a final recommendation for custody and access.
[6] The final report of Joanna Seidel, MSW, RSW was filed on January 14, 2019. Due to various conflicts, only the two youngest children were seeing the father sporadically by this point. Ms. Seidel recommended that final decision making for the children should rest with the mother. She recommended that the father continue with counselling and that he be gradually integrated back into the children’s lives. Ms. Seidel did not make a specific recommendation for parenting time in relation to the eldest child. She was to visit with her father in accordance with her wishes. The father has filed a Dispute in relation to the OCL report. He submitted that the Social Worker did not properly investigate or speak to important collaterals or misconstrued the information given to her.
[7] Both parties have strongly held views about the other’s parenting. They do not communicate well or at all. There is further resentment because the parties are first cousins and their conflict has extended to their family both here and in Egypt. The mother is frustrated by the father’s failure to participate financially in the raising of the children. The father alleges that the mother has engaged in a campaign of alienation and attacking the father’s character.
[8] The parties owned a matrimonial home which was sold. $91,834 remains in trust. The mother seeks payment of a portion of the father’s proceeds on account of support arrears.
[9] This motion was adjourned from the originally scheduled date of June 26, 2019. A term of the adjournment was that the father pay $3,000 from his share of sale proceeds on account of support arrears. The mother has received those funds.
[10] The father was self-represented at this motion. His materials included a comprehensive affidavit prepared by his former counsel with extensive exhibits and an Offer to Settle. Despite English being his second language, he was both respectful and articulate before the court.
Custody and Access
[11] The father insisted that joint custody could work in this case. I respectfully disagree. These parties are polarized and entrenched. Ms. Seidel commented that returning to a shared parenting regime “could lead to catastrophic consequences for Mr. Nassar and his relationship with the children” (p.19). The mother is willing to put her negative views of the father aside and try to parent the children co-operatively. The father is encouraged by Ms. Seidel in her report to “consider how the children feel above his need to have them 50% of the time” (p. 19).
[12] Ms. Seidel’s report is replete with examples of the father’s lack of self-awareness in relation to the children. He takes an all or nothing type view of custody and access and seemed flustered about the idea of any form of reintegration. He does not understand why all the children cannot simply come back and live with him 50% of the time. His lack of self-awareness regarding the children may explain why, as of the date of the motion, there was no access occurring at all.
[13] Given the contradictory positions of the parties and considering the extensive involvement of the OCL in this case, this court is not in a position to challenge the recommendations of Ms. Seidel. She is clear in her warnings that anything but a gradual reintegration of the father back into the children’s lives would have negative consequences.
[14] Further, in accordance with the principles enunciated in Kaplanis v. Kaplanis, 2005 CanLII 1625 (ONCA), the parties’ inability to co-operate and communicate effectively about the children precludes an order for joint custody.
[15] On a temporary basis, therefore, the children shall reside primarily with the mother and she will have final decision making. Parenting time with the two youngest children should be re-integrated in a gradual manner. The parties are encouraged to follow the four phases of re-integration recommended by Ms. Seidel at paragraph 2 of the final recommendations in her report. The oldest child should see her father in accordance with her wishes given her clearly stated views that she does not want to have contact with him at this time.
Child Support
[16] The mother has a number of specific complaints about the father’s failure to provide for the children. They can be summarized as follows:
a. The father has failed to provide or significantly delayed in providing adequate disclosure in order to allow the mother to calculate her support and property entitlements.
b. The father has been deliberately difficult. For example, he said he would allow the mother to travel with the children to Mexico for a holiday. The mother works for Sunwing and was able to obtain a discounted vacation. At the last minute the father withdrew his consent to travel. He claimed at the motion that he did not trust the mother. He knew that the children were disappointed and did not deny that up until the last minute he had agreed to let them go.
c. The father has not paid any support since separation. He was asked to explain this at the motion but was frankly unable to provide any good reason other than he makes a low income.
d. The father has been collecting 40% of the Child Tax Benefit since separation. He knows he should not have been but has taken no steps to advise CRA of the problem. He now owes CRA approximately $23,000 which he asks be paid from his share of sale proceeds held in trust. The mother takes the position that retroactive child support should take priority over the father’s personal debts.
e. The father has made no offer to pay support other than $6000 in retroactive support. He claims undue hardship and offers to pay $400 per month for support of the five minor children. This is below the Table amount. The mother’s position is that the father has put his own needs and debts before his obligation to support the children. The mother earns $32,000 per year and works five days a week. She has been left to support the children on this income (with some help from her mother with whom she and the children live) and without any assistance from the father.
[17] The father deposes that if he pays the Table support on his income of $25,000 per year and pays for rent and extended health care for the children, he will have only $388 per month on which to live.
[18] He explains that he has not contacted CRA regarding the Child Tax Benefit as he does not have the means to repay the amounts owing to them.
[19] He proposes that his CRA debt, his Visa debt ($9,000), $6000 in retroactive support and $2,000 in legal bills be paid from his share of proceeds. This would leave him with $2,917 after deducting the $3,000 already paid out to the mother.
Analysis
[20] The father complained to the court that this motion was just about money and that the mother had prioritized money over the children. I do not disagree that this motion was mostly about money. How could it not be? It is miraculous that the mother is able to manage with five children on $32,000 per year and no financial assistance from the father. The father fails to acknowledge this.
[21] During the course of the motion, the father advised that in fact he had been working full time since June 2018.This information came as a surprise to the court since it was not in his materials. It came as an even bigger surprise to counsel for the mother who has been trying to obtain information about the father’s employment for at least six months.
[22] The situation with the Child Tax Credit also cannot go without comment. The father continues to collect it without any legal entitlement. He then proposes to pay it back from the sale proceeds and makes only a modest offer by way of a lump sum of support arrears. He then proposes to pay a lower than Table amount of child support.
[23] The father’s position on support is untenable. I make the following findings in relation to his support obligation:
a. The father has deliberately kept his employment and income information from the mother and her counsel.
b. The father has flouted the law by collecting Child Tax Credit which should have been paid to the mother.
c. The father offers to pay less than the Table amount of support claiming hardship and no ability to pay, while at the same time failing to acknowledge the mother’s hardship in raising five children without any financial contribution from the father since separation.
d. I do not accept the father’s submission that he has made contributions to the children’s support because he buys them things when they are in his care. The father has had four counsel. He only recently became self-represented. It is difficult to believe that at least one of those counsel has not explained to him his obligations under the Child Support Guidelines.
e. The father has engaged in a deliberate course of conduct to avoid the payment of child support and in fact has failed to pay any support since separation other than amounts he was ordered to pay as a term of an adjournment.
[24] Given all of the above, I find that part of the support order in this case should include an order securing the payment of future support as per section 34(1)(b) of the Family Law Act. Further, the father should pay ongoing Table child support retroactive to June 1, 2018 based on an income of $25,000 per year.
Orders
[25] On a temporary basis, the children of the marriage shall reside primarily with the mother and she shall have interim sole custody.
[26] The mother shall consult with the father on all major decisions affecting the children, however, if there is any disagreement on those decisions, the mother’s decision shall prevail.
[27] The mother shall keep the father informed about the children’s progress in all aspects.
[28] The father shall have access to all school and medically related documents and appointments related to the children. The mother shall facilitate this access and provide written authorizations where required.
[29] The father is entitled to attend any school concerts, events or extra-curricular activities in which the children are involved.
[30] The father shall have parenting time with the two youngest children on alternate weekends from Friday after school to Saturday morning at 12:00 p.m. for two access visits. Parenting time shall then be increased to Friday after school to Saturday at 6:00 p.m. for two visits. Parenting time shall then be increased to Friday after school to Sunday at 6:00 p.m. for two visits and finally, parenting time shall be increased to Friday after school to Monday morning.
[31] The parties are encouraged to implement the phased parenting time recommended in the OCL report dated January 2019 with the goal of reintegrating the two youngest daughters into a parenting schedule with their father.
[32] The eldest child shall see her father in accordance with her wishes.
[33] The parties are encouraged to continue with family counselling.
[34] The mother may obtain passports for all of the children without the consent of the father.
[35] The mother may travel with the children on vacation to any Hague signatory country without the consent of the father. Vacations are limited, at this time, to two weeks in length. The mother must provide 30 days notice of any intended vacation including an itinerary and shall facilitate contact between the father and children during the vacation period.
[36] The father shall pay temporary ongoing table support for five children in the amount of $591 per month based on an income of $25,000 per year commencing September 1, 2019. This order is made without prejudice to the mother arguing that income should be imputed to the father both retroactively and on an ongoing basis.
[37] The father shall pay the sum of $5,865 ($8,865 - $3,000) to the mother representing arrears of child support from June 1, 2018 to August 1, 2019. This amount is to be paid to the mother from the father’s share of sale proceeds held in trust.
[38] The father shall prepay child support to the mother for a period of 24 months as a form of security for the payment of child support given his failure to pay support to date. Therefore, the amount of $14,184 ($591 x 24) shall be paid to the mother from the father’s share of sale proceeds. This represents support payable by the father for the period of September 1, 2019 to August 1, 2021. This order is made without prejudice to the mother arguing that income should be imputed to the father for this period. FRO shall enforce the payment of support as of September 1, 2021.
[39] The father shall immediately contact CRA in writing to terminate his receipt of Child Tax Benefits and direct that the benefits he has been receiving be paid to the mother. The father shall provide a copy of this letter to the mother’s counsel within 7 days of the date of this order. The father shall be solely responsible for any debt owed to CRA due to his wrongful collection of Child Tax Credit benefits.
[40] The father shall receive the balance of his share of funds held in trust less any costs awarded to the mother.
[41] The father is not required to approve this order as to form and content.
Costs
[42] The mother seeks full indemnity costs of $4,471.53. She served an Offer to Settle on August 20, 2019. She did as well as or better than her Offer. The father was unrealistic in his position at the motion that he should have joint custody of the children. The father’s offer to pay child support was made late and in insufficient amounts.
[43] However, the father served an Offer to Settle which essentially mirrored that of the mother except that the support amounts offered were lower than those set out in the mother’s Offer. Interestingly, the father offered to settle the parenting issues by offering interim sole custody to the mother as well as decision making authority. It is clear from a review of the Offers that the issue of support prevented settlement. The mother was generous in her offer to receive less than the Table amount of support but based this on an imputed income of $29,000.
[44] The father shall pay costs to the mother in the amount of $4,000. This shall be paid from the father’s share of sale proceeds.
C. Gilmore, J.
Released: August 28, 2019
COURT FILE NO.: FS-16-412842
DATE: 20190828
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Abbas Nassar
Applicant
– and –
Safae Saleh
Respondent
REASONS FOR JUDGMENT
C. Gilmore, J.
Released: August 28, 2019