COURT FILE NO.: FS-17-89559-00

DATE: 2019 08 30

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

ADNAN CHALTAF

Applicant

• and -

ANSAM DAWOOD

Respondent

COUNSEL: Kavita V. Bhagat, for the Applicant Aneesa R. Oumarally, for the Respondent

HEARD: May 14 to 16, 2019

REASONS FOR JUDGMENT

Dennison J.

Introduction

[1] Mr. Chaltaf and Ms. Dawood had a traditional marriage where Ms. Dawood stayed at home and raised their two children. Shortly before the parties separated, Ms. Dawood went back to school to train as a medical assistant. Ms. Dawood left the home in August 2015. Their two children remained at the matrimonial home with Mr. Chaltaf.

[2] Prior to the parties’ separation, Mr. Chaltaf worked as a mortgage broker at CIBC and made a salary of over $100,000. Unfortunately, his employment income dropped dramatically in 2018 when he had to leave CIBC and take another job. He used his line of credit, sold shares and borrowed money from his brother to make up the shortfall in the past year. Ms. Dawood obtained employment post separation. She has struggled to find a good paying full-time job. In 2018, she earned approximately $33,000.

[3] Ms. Dawood continued to receive child benefits from the government after she moved out of the residence. The benefits were paid into the parties’ joint bank account until at least April 2017 and were used for the benefit of the children. The Canada Revenue Agency (CRA) seeks repayment of these funds because Ms. Dawood was not the primary caregiver since the date of separation and therefore not entitled to the benefits. Mr. Chaltaf agreed in a consent order dated October 2017, that he was responsible for any Child Tax Benefits (CTB) owing by Ms. Dawood to the government and that he would repay the CRA immediately for any overpayments made to him by the government. He also agreed to repay the HST payment and the Ontario Trillium Benefit (OTB) paid into the joint account for the benefit of the children that the CRA states is an overpayment.

[4] The parties resolved the custody and access issues. They also agreed that Ms. Dawood is to receive a $60,000 equalization payment.

[5] There are several outstanding financial issues to be resolved in this trial, including:

1. What income should be assigned to the parties for the purpose of calculating spousal and child support?
2. What should be the quantum and duration of spousal support?
3. Should there be retroactive spousal support and retroactive child support?
4. What, if any, amounts should Mr. Chaltaf be required to pay to the CRA based on the consent order dated October 12, 2017?
5. How should section 7 expenses be dealt with moving forward?

Background Facts

[6] Mr. Chaltaf and Ms. Dawood met in 2003 in Dubai. A marriage contract was arranged between Mr. Chaltaf and Ms. Dawood’s father. A traditional wedding took place on December 24, 2004. Ms. Dawood was 21 years old. She was working at the time. Mr. Chaltaf was 32 years old.

[7] Mr. Chaltaf was a Canadian citizen when they met and sponsored Ms. Dawood to come to live in Canada. She came to Canada in April 2005. She became pregnant shortly thereafter. Their first child, Rama, was born on February 16, 2006.

[8] The family moved to Doha, Qatar in the summer of 2007, where Mr. Chaltaf worked for his brother. The family returned to Canada to have their second child, Adman, who was born on May 23, 2012. After he was born, the family returned to Doha. The family returned to Canada in the summer of 2013 where they have resided since.

[9] Ms. Dawood did not work outside of the home during the marriage. In 2014, she attended college to obtain her medical assistant degree. She was finishing her co-op for this program when the parties separated in August 2015.

[10] Mr. Chaltaf provided financial support for the family. He worked as a mortgage broker while in Canada and worked for his brother’s company while in Doha. From 2015 to 2017 he made over $100,000 per year working as a mortgage broker for CIBC. His earnings were entirely commission-based. In 2018, his income significantly decreased to $27,929. Mr. Chaltaf left CIBC and obtained employment at another mortgage brokerage firm, Bespoke, in April 2019.

[11] The parties separated on August 26, 2015. Ms. Dawood moved out of the home and into a three-bedroom apartment with five of her family members. The children remained in the matrimonial home with Mr. Chaltaf.

[12] Ms. Dawood and her family moved to Kitchener in 2017 because the family could not afford to live in Mississauga. Ms. Dawood lives in a two-bedroom apartment with her sister and parents. In Kitchener, she worked for a storage company, dentist offices and, during the week of the trial, she was offered employment with an insurance company earning $32,175 per year.

[13] The children continue to reside with Mr. Chaltaf. Ms. Dawood sees the children every other Friday at 6 p.m., until Sunday at 8 p.m. In addition, she has access on various holidays.

[14] On October 12, 2017, the parties agreed on a temporary and without prejudice basis that Mr. Chaltaf would pay $831 per month in spousal support. Ms. Dawood was to pay $318 per month in child support for the two children.

[15] Ms. Dawood received various CTB from the Canadian government during the marriage. Ms. Dawood continued to receive those benefits after the parties separated. The benefits were paid into the joint account and were used for the children until at least April 2017, at which point Ms. Dawood asked to be taken off the joint account. In 2017, the CRA advised Ms. Dawood that she had to repay the CTB she received because she was not the primary caregiver for the children.

[16] Ms. Dawood stopped making her child support payments because she felt that she had to make payments to the CRA. In turn, Mr. Chaltaf stopped paying spousal support.

[17] In a final order dated October 12, 2017, Mr. Chaltaf agreed that he was “responsible for any CTB owing by Ms. Dawood to the government and shall repay the government immediately for any overpayment made to him by them. The parties made a settlement with CRA with respect to this matter.”

[18] With respect to OTB, Mr. Chaltaf also agreed in the order that he is responsible for the OTB paid into the joint account for the benefit of the children and he “shall immediately repay any overpayments made.” Similarly, with respect to HST, Mr. Chaltaf agreed “to immediately repay HST payments deposited into the joint account in 2016 for the benefit of the family and now calculated as an overpayment.”

Issue #1: What are the Parties’ Incomes for the Purpose of Calculating Child and Spousal Support?

[19] The parties do not dispute that Ms. Dawood is entitled to spousal support and that Ms. Dawood must pay child support. The income of each party must be determined before one can determine the quantum of support payable.

Position of the Parties

[20] Ms. Dawood submits that Mr. Chaltaf is capable of earning more than the $27,929 he earned in 2018. She is seeking to impute income of $77,592 to Mr. Chaltaf for 2018. She submits that this includes a base income of $65,000 and other income that should be attributable to him, including dividends and rental income.

[21] Ms. Dawood submits that Mr. Chaltaf’s income for the purpose of spousal support going forward should be calculated based on the past three years. Mr. Chaltaf’s average income would be $104,248 when one considers his income of $77,592 in 2018, his income of $123,471 in 2017 and his income of $111,681 in 2016.

[22] Mr. Chaltaf submits that his income for 2018 should be based on his line 150 income in his tax return, $27,929. He submits that he was not intentionally underemployed in 2018. His significant decrease in income was the result of several changes to the mortgage brokerage industry.

[23] Mr. Chaltaf submits that his imputed income for 2019 should be $55,000. He is settling into a new job as a mortgage broker that provides more borrowing options for his clients. It will take him time to build his client base and increase his income. He submits that averaging his income for the past three years would be too high and does not adequately reflect his 2019 income. He anticipates that his 2019 income will be between $50,000 and $60,000 in 2019 and asks the court to impute income of $55,000.

[24] In the alternative, Mr. Chaltaf submits that if the court is inclined to use a pattern of income test, the appropriate way to do so is to apply his line 150 income for the past three years. This would result in an average income of $87,693.66. He submits that this is significantly more than he will realistically earn in 2019.

[25] Mr. Chaltaf also submits that income should be imputed to Ms. Dawood in the amount of $35,000 to $40,000 annually. He submits that Ms. Dawood has shown that she is capable of making $20.00 per hour and, with fulltime hours, she could make over $50,000 annually. She has intentionally chosen a new job that may result in her earning less income than she was previously earning.

Guiding Principles

[26] The methodology for determining income set out in the Child Support Guidelines (the Guidelines) is applicable for determining a payor spouse’s income: see Mignella v. Fererico, 2012 ONSC 5696.

[27] Sections 15 to 20 of the Guidelines are the starting point for the calculation of a party’s income for child and spousal support purposes. The Guidelines provide four ways in which income can be determined for the purpose calculating spousal and child support.

[28] First, income may be determined by agreement of the parties.

[29] Second, income may be determined by using the line 150 income from the parties’ tax returns.

[30] Section 16 of the Guidelines states that, subject to sections 17 to 20, a spouse’s annual income is determined using the sources of income set out under the heading “total income” (line 150) in the T1 General Form used by the CRA and then by making the adjustments provided for in Schedule III to the Guidelines. Federal CTB and GST/HST Tax Credits for children are not included in the calculation of income for the purpose of child support. Section 16 does not blindly require the court to use a party’s income from the previous year, as reported by that party in their T1 General form from the past year, as a basis for determining ongoing support. Rather, the goal is to ascertain current income based on the sources set out in the T1 form, which includes consideration of what the party is likely to earn in the upcoming year: see Nelson v. Nelson, 2005 NSSC 5; Lemmon v. Lemmon, 2004 CarswellOnt 177 (Ont. S.C.); Kimla v. Golds, 2005 CarswellOnt 1000 (Ont. S.C.).

[31] Third, income may be determined by using an average of the past three years’ income. Section 17 states that, if the court believes it would be unfair to determine income based on a spouse’s line 150 number for a given year, the court may look to that spouse’s income over the past three years to determine an amount that is fair and reasonable, in light of income fluctuation. This is a discretionary decision of the trial judge.

[32] The purpose of this section is to avoid the unfairness that would result from basing a support amount on an annual income that is unusually high or unusually low in relation to the payor-spouse’s average income. This most commonly arises where there are spikes and dips in the payor’s income: see Stojanovski v. Stojanovski, 2016 ONSC 8090; Decaen v. Decaen, 2013 ONCA 218; Ewing v. Ewing, 2009 ABCA 227, leave to appeal refused, 9 Alta. L.R. (5th) 201.

[33] Fourth, the trial judge may impute income to a party in appropriate circumstances. Section 19 of the Guidelines sets out the principles in which the court can impute income for the purpose of child support. These same principles apply to spousal support: see Rilli v. Rilli, 2006 34451 (Ont. S.C.); Perino v. Perino, 2007 46919 (Ont. S.C.).

[34] Section 19 states:

The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

(b) the spouse is exempt from paying federal or provincial income tax;

(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;

(e) the spouse’s property is not reasonably utilized to generate income;

(f) the spouse has failed to provide income information when under a legal obligation to do so;

(g) the spouse unreasonably deducts expenses from income;

(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and

(i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

[35] The list of factors set out in s. 19 is not exhaustive and the amount of income imputed is a matter of discretion. The only limitation on the discretion is that there must be some basis in evidence for the amount that the court has chosen to impute: see Korwin v. Potworowski, 2007 ONCA 73.

[36] The onus is on the party seeking to impute income pursuant to s. 19. The party seeking to impute income must establish an evidentiary basis upon which this finding can be made: see Homsi v. Zaya, 2009 ONCA 322; Banning v. Bobrowski, [2007] O.J. No. 3927 (Ont. S.C.).

[37] A parent is intentionally underemployed within the meaning of this section if they voluntarily earn less then they are capable of earning, having regard to “all of the circumstances.” It must be a voluntary act, not a situation beyond someone’s control. It is not necessary to establish bad faith or an attempt to thwart support obligations. The court may consider the age, education, experience, skills and health of the party, and the amount of income they could reasonably earn if they worked to capacity: see Drygala v. Pauli, (2002) 2002 41868 (ON CA), 61 O.R. (3d) 711 (Ont. C.A.).

[38] There is a duty on the payor to actively seek out reasonable employment opportunities that will maximize their income potential to meet the needs of their dependents: see Thompson v. Thompson, 2013 ONSC 5500 (Ont. S.C.).

[39] If the court is not satisfied that the support payer is intentionally underemployed, then the inquiry ends. If the court is satisfied that the payer is intentionally underemployed, the onus shifts to the payor to show that one of the reasonableness exceptions applies. Such exceptions include those for educational, medical or childcare needs.

[40] The absence of a reasonable job search will also usually leave the court with no choice but to find that the payer is intentionally under-employed or unemployed: see Gonzalez v. Garcia, 2015 ONCJ 146.

Relevant Facts

a. Mr. Chaltaf’s Income

[41] Mr. Chaltaf financially supported the family throughout the marriage. He was trained as a dentist before he married. While married, he worked for his brother when the family lived in Qatar. He testified that he made approximately $7,000 Canadian per month while working for his brother, plus the rental income from the properties in Canada. In Canada, he worked in different jobs but more recently, he worked as a mortgage broker.

[42] Mr. Chaltaf also owns a condo in Canada that he rents out. He states that he holds it in trust for his brother. However, he admits that the property is in his name, he collects the rental income and declares the rental income and expenses on his income tax returns.

Year	Canadian income	Doha	Total
2008	$14,406 (rental)	$42,000 ($7,000 x 6 months)	$56,406
2009	$15,729 (rental)	$84,000 ($7,000 x 12 months)	$99,729
2010	$12,660 (rental)	$84,000 ($7,000 x 12 months)	$96,660
2011	$17,874 (rental)	$84,000 ($7,000 x 12 months)	$101,874
2012	$12,844 (rental)	$84,000 ($7,000 x 12 months)	$96,844
2013	$18,017 (rental)	$35,000 ($7,000 x 5 months)	$53,017
2014	$39,965 (Mr. Chaltaf’s evidence)		$39,965
2015	Line 150		$109,254
2016	Line 150		$111,681
2017	Line 150		$123,471
2018	Line 150		$27,929

[43] Based on his evidence, as well as his tax returns filed at trial, Mr. Chaltaf’s income may be described as follows:

[44] From 2015 to 2017, Mr. Chaltaf worked as a mortgage broker for CIBC. He described these years as his golden years. He testified that he experienced a severe drop in income as a mortgage broker at CIBC in 2018 for the following reasons:

1. The new stress test for mortgage applications came into effect on January 1, 2018;
2. CIBC imposed new minimum qualifying rates;
3. There were restrictions on certain lending arrangements; and
4. There were restrictions for foreign buyers.

[45] Mr. Chaltaf testified that these changes significantly affected his client base. He explained that 10 percent of his clients were foreign buyers. He also testified that 50 percent of his client base were self-employed persons who were subject to the new stress test and would not qualify for a mortgage with CIBC. He also had persons new to Canada and other clients.

[46] Mr. Chaltaf was cross-examined as to why he did not take active steps earlier in 2018 to change jobs given the lack of income he was making at CIBC. He explained that, while he recognized in the spring/summer of 2018 that he was not making as much money as previously, he thought that business would pick up. CIBC reassured its mortgage brokers that the rules would change again. He also testified that the markets change, and he was hoping the markets would improve. He had stability working for a large bank that included medical and dental coverage for himself and the children. He also stated that he needed the flexibility to take care of the children.

[47] Mr. Chaltaf testified that after the peak of the spring/summer season in 2018, business was not improving. He then took active steps to find other employment. He testified that he applied to various financial institutions including TD, BMO, National Bank and DUCA Financial. Copies of rejection letters from the TD and BMO were filed with the court. He explained that he did not have similar letters from the other institutions because the applications and interviews were completed online.

[48] Mr. Chaltaf testified that, in April 2019, he resigned from CIBC and obtained a job as a mortgage broker at the private brokerage firm, Bespoke. His income is entirely commissioned-based. He explained that he expects to build up his client base because, as a private brokerage firm, Bespoke can use a wider range of lenders for their clientele. He anticipates that he will make closer to $50,000–$60,000 because half the year has already passed, and he will have to network and build up a new client list. He also testified that he will incur some business expenses this year, such as advertising, marketing and set up fees.

[49] Mr. Chaltaf also testified that he was seeking to be certified as a dentist in Canada. He was a dentist in the United Arab Emirates prior to coming to Canada. He testified that this is his long-term plan because he believes that the mortgage brokerage business is not going to fully recover. It will take him approximately five years to complete all the exams and an internship before he becomes licenced to practise dentistry in Canada. He did not produce any documentation showing that he has started this process yet.

[50] Mr. Chaltaf was cross-examined at length regarding his expenses and monies that went into his bank account. In cross-examination, it was put to Mr. Chaltaf that he deposited approximately $137,585.83 into his CIBC bank account in 2018, yet only declared that he earned $27,279.29.

[51] Mr. Chaltaf testified that, to offset this loss of income in 2018, he started borrowing from his line of credit, sold some of his shares and borrowed money from his brother. He explained that in 2018, he borrowed money from his line of credit, $12,000 from his brother and cashed in shares valued at $25,871.11. His evidence with respect to his use of his line of credit and of selling the shares is consistent with the documentation filed at trial. Mr. Chaltaf’s line of credit has a credit limit of $55,000. He has already used approximately $47,000. He also cashed shares that he received from CIBC after he separated from Ms. Dawood. There was no documentation filed to support his evidence that he borrowed $12,000 from his bother. I am not satisfied that there is any hidden source of income to account for the $12,000. There is no suggestion that he works on the side or has other investments unbeknownst to Ms. Dawood.

[52] Mr. Chaltaf was also cross-examined about $15,000 he borrowed from his line of credit in February 2018. He explained that he borrowed this money to purchase an RRSP to offset the taxes he would have to pay based on his 2017 income. He also testified that he did not cash out the RRSPs, as they were making money. He explained that, as a CIBC employee, he had a reduced interest rate on his line of credit.

[53] Mr. Chaltaf was also cross-examined about a trip to Cuba he and his daughters took in January/February 2018. He testified that the trip to Cuba was booked and paid for in November 2017 when he was earning good money. I accept his evidence on this point.

[54] Mr. Chaltaf was also cross-examined about the gastric sleeve surgery he had in Turkey in 2018. The surgery cost $3,300 to $3,600. He also visited his mother while he was in Turkey. It was suggested to him that this was an elective surgery, but Mr. Chaltaf was adamant that it was not. He testified that his weight after separation increased from 125 kg to 168 kg and his weight was causing him health problems such as high cholesterol, uric acid and back pain for which he sought physiotherapy almost every week prior to surgery.

[55] Mr. Chaltaf explained that he paid off his credit card debts of $45,000 in 2018, which was well in excess of the income he declared using money from his line of credit. His line of credit had a much lower interest rate than his credit card.

[56] I do not find that Mr. Chaltaf’s expenses were exaggerated. He acknowledged that his monthly car and repair expenses were a yearly amount, not a monthly amount as it should have been. With respect to his grocery bills, Mr. Chaltaf testified that his expenses were reasonable because the costs included food for their daughters. Ms. Dawood admitted that the amounts claimed by Mr. Chaltaf for groceries were reasonable, as he had to feed his two daughters.

b. Ms. Dawood’s Income

[57] Ms. Dawood testified that she completed her medical administration course in October 2015 and worked at a Mississauga medical centre. Based on her 2015 tax assessment she earned $13,888. In 2016, Ms. Dawood earned $25,568.

[58] In May 2017, Ms. Dawood left her job in Mississauga and moved to Kitchener because it became too expensive to remain in Mississauga. In August 2017, she obtained a job at a storage company named Access, where she earned approximately $12 per hour. She confirmed in her testimony that she made $30,963 in 2017, which was reflected in her tax assessment.

[59] Ms. Dawood testified that, in August 2018, she left her job at Access and started working at Belmont Dentistry, where she earned approximately $15 per hour. She worked there until March 2019. Ms. Dawood left because she was not paid on a regular basis, which caused problems paying her bills. She then worked for Monarch Dentistry and was earning $20 per hour. She testified that she left Monarch because she was not getting regular hours. If it was a slow day, she would only get paid for four hours and then be sent home. Ms. Dawood confirmed that her income for 2018 was $33,943, as stated in her tax assessment.

[60] Ms. Dawood testified that she accepted a new job during the week of the trial as an administration support and claim in-taker at an insurance company called Crawford. This job pays $17 per hour. There is also a trial period of three months, where she may be let go without notice if they are unsatisfied with her work. The annual salary is $32,175 and she testified that she will have medical and dental insurance. She did not know if she would receive a bonus despite a paragraph in the contract that suggests that there is a bonus. Ms. Dawood testified that she does not expect to make as much as she did last year, but she accepted this job for the stability it provides. There is also the ability to increase her income over time if she takes more courses and receives a raise.

Analysis

a. Mr. Chaltaf’s Income

[61] I do not find that Ms. Dawood has proven, on the balance of probabilities, that Mr. Chaltaf was intentionally under-employed in 2018. As explained in Drygala v. Pauli, a person is intentionally under-employed within the meaning of s. 19 if they voluntarily earn less than they are capable. It must be a voluntary act, not a situation beyond a person’s control.

[62] I accept Mr. Chaltaf’s evidence that changes in 2018 made it more difficult to qualify for a mortgage. These changes included the introduction of the stress test that adversely impacted his business. I find that what occurred in 2018 was not voluntary but rather the result of the government programs and policies introduced by CIBC, which adversely impacted his clientele and, therefore, his business.

[63] I also find that his reasons for not immediately pursuing comparable employment are reasonable, considering the circumstances. I accept Mr. Chaltaf’s evidence that he did not immediately look for a new job when his commission income went down because he was hoping things would improve. He worked for a major bank and had made a lot of money in the past three years. It was reasonable to hope things would turn around so that he could stay at what he perceived as a good-paying job with benefits.

[64] When it became clear that his income at CIBC was not going to rebound, he took reasonable steps to find new employment. He applied to other major banks without success. He then applied to private brokerage firms that offer more flexibility to lenders, which would make it easier for him to arrange for mortgages for the types of clients with whom he has experience.

[65] I do not accept Ms. Dawood’s submission that I should impute income of $77,592.11 for 2018 – based on $65,000 income and other income from the rental unit and investments – for the following reasons.

[66] Ms. Dawood has put forth no evidence to suggest that Mr. Mr. Chaltaf made $65,000 in 2018.

[67] With respect to the rental income, I agree that Mr. Chaltaf will likely make more rental income in 2019 than he declared in 2018. Mr. Chaltaf testified that, in 2018, he made less rental income because a tenant was not paying rent. His banking records support his evidence on this point. Once the tenant left, Mr. Chaltaf made repairs to the apartment before renting it at a higher rate. In his 2018 tax return, Mr. Chaltaf claimed only $596 in income for the condo. In contrast, in 2015, he declared rental income of $3,511.42. One may infer that his rental income should be higher in 2019, in all of the circumstances.

[68] I reject the suggestion that Mr. Chaltaf has a hidden source of income. Mr. Chaltaf testified that he used his line of credit in the past year to pay for living expenses. This is reflected in his CIBC line of credit statements. He certainly cannot continue to draw on the line of credit as a means of providing for himself and his family. He also testified that he sold shares this year, which was corroborated by documentation. He also testified that he borrowed $12,000 from his brother. His evidence on this point was not corroborated, but Ms. Dawood has not satisfied me that this money came from some other, undeclared, income source.

[69] Mr. Chaltaf submits that the proper amount of his imputed income for 2019 should be $55,000. He testified that this reflects the fact that he will have to rebuild his clientele and business, and that he only earns income on commission.

[70] I am not satisfied that I should impute an income of $55,000 for the purpose of calculating spousal support. Rather, the fairest manner to calculate Mr. Chaltaf’s income is to average his earnings over the past three years, as permitted by s. 17 of the Divorce Act. Taking Mr. Chaltaf’s average income over the past three years balances out the peaks and dips in his employment income. There has been a significant dip in 2018, and there may be a slight dip in 2019 as he rebuilds his business. This should be balanced against the fact that, in the two years previous, he annually made over $110,000. In determining that this is fair, I have also considered that Mr. Chaltaf has earned over $95,000 in 7 of the past 11 years, which suggests he is capable of earning more than the $55,000 he seeks to impute. He should also make more rental income in 2019 than he did in 2018.

[71] Mr. Chaltaf’s imputed income for 2019 will be $87,693.66. This amount was arrived at by averaging his 2016 income of $111,681, his 2017 income of $123,471 and his 2018 income of $27,929.

b. Ms. Dawood’s Income

[72] I am satisfied that the proper income to attribute to Ms. Dawood is $33,943, based on line 150 of her 2018 tax return. This amount is slightly more than the base salary she will be making at her new job, which is $32,175. It also appears from her contract that she will receive some sort of bonus, although the amount is unknown. Ultimately, Ms. Dawood has shown that she is capable of earning $33,943 but has chosen to take a lower-paying job because she feels it will be better in the long-term.

[73] I do not accept Mr. Chaltaf’s submission that Ms. Dawood is capable of earning $35,000 to $40,000. She has never earned this income. I also do not accept Mr. Chaltaf’s submission that she is capable of earning $50,000, based on the income she was making in Mississauga. His calculations were premised on the fact that Ms. Dawood was receiving full-time hours. Ms. Dawood testified that she moved to Kitchener because she was not getting full-time hours in Mississauga and could not afford to live there. Her evidence on this point was corroborated by her 2016 tax assessment, which states she earned $25,568. She was at the clinic for the entire year and did not move to Kitchener until 2017.

Issue #2: What Quantum of Spousal Support is Ms. Dawood Entitled to?

Position of the Parties

[74] Ms. Dawood seeks compensatory and non-compensatory spousal support at the mid-to-high end of the Spousal Support Advisory Guidelines (SSAG). She submits that this was a traditional marriage of 12 years where she stayed at home and cared for the 2 children. She attended school in 2014 and 2015 and has strived for self-sufficiency but has been unable to obtain a secure, well-paying job. There is a great disparity of income and a great need, particularly as she is required to pay child support on her limited income. Regardless of what income is imputed to Mr. Chaltaf, she seeks support in the mid-to-high range. Based on Mr. Chaltaf’s imputed income of $87,693, the SSAG lists the high range at $713 per month and the mid range at $624 per month.

[75] Mr. Chaltaf does not dispute that Ms. Dawood is entitled to spousal support based on the compensatory model, nor does he dispute that she was disadvantaged by being out of the work force. He does, however, ask the court to consider the strength of her compensatory claim and he argues that the educational opportunity she received while married should militate towards the low-to-mid range of the SSAG which is $534 to $624 per month.

[76] Mr. Chaltaf submits that Ms. Dawood is not entitled to non-compensatory support because she has already been retrained and has the earning capacity to be self-sufficient. He submits that, if Ms. Dawood remained in Mississauga, she would have had a potential annual income of $55,552, based on her earning in the three months in 2015. Mr. Chaltaf submits that Ms. Dawood made $20 per hour at her last job, so she could have earned $41,600, annually. Mr. Chaltaf submits that this shows she can earn a reasonable income.

[77] Even if Ms. Dawood is entitled to non-compensatory support, Mr. Chaltaf asks the court to consider that the family did not live a lavish lifestyle prior to separation. In addition, Ms. Dawood has retrained and was 32 at the time of separation. She is the non-custodial parent and has more flexibility to pursue her career objectives. She will also be receiving a $60,000 equalization payment, which will require Mr. Chaltaf to re-mortgage the home. He also submits that some of her expenses are inflated.

[78] Mr. Chaltaf submits that, in contrast to Ms. Dawood, Mr. Chaltaf is the custodial parent of two children. He has suffered a financial loss as a result of his low earnings in 2018, which required him to live off his line of credit and to borrow money to meet family expenses. He will also have to take on further debt refinancing his home to pay her the equalization payment. He submits that this should push support to the lower end of the range. He also submits that he took on all of the debt during the marriage.

[79] With respect to the duration of spousal support, the parties agree that there should be a review after five years. It is submitted that, given Ms. Dawood’s new educational qualifications, her economic situation could be drastically different in five years. Similarly, it is submitted that Mr. Chaltaf’s income could be significantly different as a result of the markets or if he qualifies to practise dentistry in Canada.

Guiding Principles

[80] Sections 15.2(1) and (2) of the Divorce Act set out the court’s jurisdiction to make an interim or final spousal support order that the court considers reasonable. The Divorce Act also sets out several factors for the court to consider in making this determination. Section 15.2(4) states that:

In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited;

(b) the functions performed by each spouse during cohabitation; and

(c) any order, agreement or arrangement relating to support of either spouse.

[81] The court has broad discretion when determining spousal support amounts and may consider the parties’ conditions, means, needs and other circumstances. The s. 15.2(4) factors must also be interpreted in the context of the purpose of spousal support provisions of the Act. The purpose of these provisions, as articulated by the Supreme Court of Canada in Moge v. Moge, 1992 25 (SCC), [1992] 3 S.C.R. 813, “is to relieve economic hardship that results from the marriage or its breakdown.” The focus of the analysis is on the “the effect of the marriage in either impairing or improving each party’s economic prospects”: para. 43.

[82] The “condition” of the spouse includes such factors as age, health needs, obligations, dependents and the spouse’s station in life. The spouse’s means encompasses all financial resources, capital assets, income from employment and any other sources from which the spouse derives gains or benefits: see Strang v. Strang, 1992 55 (SCC), [1992] 2 S.C.R. 112; Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920.

[83] The objectives of spousal support are set out in s. 15.2(6) of the Act as follows:

An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[84] All of these factors must be considered, but no single factor is paramount. Trial judges have significant discretion when determining the weight to place on each objective, based on the particular circumstances in the case.

[85] In Moge and Bracklow v. Bracklow, 1999 715 (SCC), [1999] 1 S.C.R. 420, the Supreme Court recognized that spousal support must be determined in accordance with the governing legislation, but a trial judge’s analysis should be rooted in three conceptual models. Those models are: (1) compensatory support, which relates primarily to the first two objectives of the Act; (2) non-compensatory support, which relates primarily to the third and fourth objectives: and (3) contractual support. As noted by the British Columbia Court of Appeal, in Chutter v. Chutter, 2008 BCCA 507, 301 D.L.R. (4th) 297, the court is not required to apply one conceptual model of entitlement over the other and, in many cases, entitlement may be established on more than one ground.

a. Compensatory Support

[86] The compensatory basis for spousal support recognizes that, upon marriage breakdown, the economic consequences of the marriage should be equitably distributed between the parties. The objective of a compensatory award is to recognize the sacrifices and contributions made by a spouse during the marriage, and to compensate for the economic losses they experienced (and may continue to experience) as a result of the marriage. In addition, the court must also consider the benefits that the other spouse has received as a result of these sacrifices and contributions. The compensatory model recognizes that the sacrifices, contributions and benefits conferred often lead to an interdependency between the spouses and a merger of their economic lives: see Cassidy v. McNeil, 2010 ONCA 218, 99 O.R. (3d) 81.

[87] Compensatory support claims most commonly arise where one spouse has suffered economic disadvantage after assuming primary responsibility for child and home care, which assisted the other spouse’s income-earning potential.

[88] In determining whether a compensatory claim exists, the court must consider, broadly, the advantages and disadvantages that each party experienced throughout the marriage. A compensatory claim may be established even where the recipient spouse is employed and reasonably self-sufficient at the time of separation. The spouse’s financial advancement may have been impaired as a result of subordinating their career to that of the other spouse, or from taking on a less lucrative career path in order to accommodate the family’s needs: see Cassidy v. McNeil; Allaire v. Allaire, 2003 26263 (Ont. C.A.).

b. Non-compensatory Support

[89] The Supreme Court of Canada discussed the non-compensatory support model in Bracklow. It emphasized that, under this model, a spouse may be obliged to pay support based on the other spouse’s economic needs alone, even if that need does not arise from the parties’ roles or sacrifices during the marriage.

[90] As explained by the Court of Appeal for British Columbia Court in Chutter, this model is grounded in the “social obligation model” of marriage, in which marriage is seen as an interdependent union. The primary burden of meeting the needs of the disadvantaged spouse falls on the former partner, as opposed to the state.

[91] Section 15.2(4) of the Divorce Act states that, in awarding spousal support, the court considers “the means, needs and other circumstances of the spouses.”

[92] In Leskun, the Supreme Court of Canada defined “means” as including “all pecuniary resources, capital assets, income from employment or earning capacity, and other sources from which the person receives gains or benefits.” This includes consideration of any equalization payments. As the Court of Appeal for Ontario held in Greenglass v. Greenglass, the resulting equalization payment must proceed any support analysis because “the equalization payment and the impact of any … income-generating potential associated with the assets with which each party is left will almost invariably affect the support analysis”: 2010 ONCA 675, para. 43.

[93] In Leskun, the Supreme Court also recognized that, while one of the objectives of spousal support to promote the economic self-sufficiency of the spouses within a reasonable time, this expectation is dependent upon the circumstances of the parties and the dynamics of the marital relationship in each case. Self-sufficiency may not be possible or practicable in some cases. The Court also recognized that the concept of self-sufficiency is a relative term, and trial judges must consider the parties’ standard of living during the marriage.

[94] In Fisher v. Fisher, the Court of Appeal for Ontario emphasised that self-sufficiency is not necessarily established when a former spouse is able to meet their basic needs, rather it refers to the spouse’s ability to maintain a reasonable standard of living – after taking into account the lifestyle the parties enjoyed during their relationship: 2008 ONCA 11, 88 O.R. (3d) 241. Where one spouse has suffered economic disadvantage as a result of the marriage or its breakdown, the court must consider whether the other party can financially assist to ensure that the recipient spouse maintains a lifestyle closer to what they enjoyed during the marriage. The extent to which the court will consider the accustomed standard of living during the marriage in setting the benchmark for self-sufficiency post-separation will depend on the particulars of the marital relationship. As noted by Justice L’Heuruex-Dubé in Moge, at para. 84, “the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution.”

c. Spousal Support Advisory Guidelines

[95] In addition to the objectives and principles set out in s. 15 of the Divorce Act, courts may turn to the SSAG in considering the quantum and duration of spousal support. Although the SSAG is not legislated or binding, it is a useful tool. The reasonableness of an award produced by this tool, however, must always be balanced in light of the circumstances of the individual case, including the financial history of the parties during the marriage and their likely future circumstances: see Fisher, at para. 96.

[96] The SSAG generates suggested ranges for both quantum and duration of spousal support that can assist the court in determining an appropriate support award. The SSAG and case law set out a number of factors that the court may consider when determining quantum and duration of support within the ranges. These factors include:

1. Whether or not there is a strong compensatory claim for spousal support. Where a strong claim exists, this factor may favour awards in the higher ranges for quantum and duration. Where there is a weaker compensatory claim – such as where the economic disadvantage or advantage to one of the parties is limited in duration and effect – this factor may support awards in the lower ranges for quantum and duration: see Bracklow.
2. The recipient’s needs. Where the recipient has limited income or earning capacity, the level of their needs may call for an award at the higher end of the quantum and duration range.
3. The age, number, needs and standard of living of the children.
4. The payor’s spouse’s needs and ability to pay.
5. The need to preserve work incentives for the payor.
6. The property division and debts. Where the court does not order a property award, a support award at the higher range may be appropriate. If the recipient spouse is granted a significant property award, however, this may render a support amount in the lower range appropriate.
7. Self-sufficiency incentives in relation to the recipient spouse.

[97] In this case, the applicable SSAG formula is the custodial payor formula. Mr. Chaltaf has custody of the two children he supports. He is also required to pay spousal support. In this situation, a different hybrid formula applies since child support flows from the spousal support recipient to the payor. The custodial payor formula uses the ‘without child’ support formula as a starting point because the recipient’s situation more closely resembles the recipient in the without child support scenario. The formula is modified to deduct gross-up amounts of child support and s. 7 expenses from each spouse’s gross income. The without child support formula is then applied: see SSAG pp. 37-39.

d. Duration

[98] The SSAG also provides some guidance with respect to duration of spousal support. As noted in the SSAG, there are various considerations in marriages of medium duration (less than 20 years but more than 5) to consider with respect to the duration of the order. The SSAG notes that, in practise, the issue of duration in medium-length marriages is often put aside to be dealt with through ongoing reviews and variations in the future.

[99] With respect to the duration of spousal support, s. 15(3) of the Divorce Act states:

The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

[100] Review orders have a useful but limited role. A review order may be appropriate where there is a genuine and material uncertainty at the time of the original trial. This usually arises where the parties have not had the economic wherewithal to commence recovering from the disadvantages that flow from the marriage and its breakdown. A review order permits the party to bring a review without having to demonstrate a material change in circumstance, which is a stringent threshold: Leskun; Judd v. Judd, 2010 BCSC 153.

Relevant Facts

[101] The parties were married for 12 years. Ms. Dawood was 32 years old when the parties separated.

[102] Ms. Dawood met Mr. Chaltaf when she was 20 years old in 2003. She had completed high school and was working as a customer service representative in Dubai when she met Mr. Chaltaf. English was not her first language.

[103] The parties were married in 2004 and Ms. Dawood came to Canada on April 28, 2005.

[104] Ms. Dawood testified that the parties had a traditional marriage. She stayed at home with the children and managed the home. She did not deal with any of the financial issues in the house but provided Mr. Chaltaf with receipts when she went grocery shopping. She never filed her own taxes until she was separated from Mr. Chaltaf. The marital home was only in Mr. Chaltaf’s name.

[105] Her evidence regarding her role in the home was largely corroborated by Mr. Chaltaf’s evidence. He agreed that she stayed at home and cared for the children and that he dealt with the tax returns. He also agreed that the house was in his name only.

[106] Ms. Dawood testified that she did not work while in Canada, but she assisted at Barron’s financial brokerage in 2005–2006. She testified that she was not paid but simply helping out.

[107] In 2014, Ms. Dawood returned to school to complete a medical administrator program. She started this program when the parties were still married but completed it after the parties separated. Mr. Chaltaf paid her school fees until separation. Both parties’ tax assessment show that they claimed tuition fee credits in the amount of $5,860 in 2014 and $7,371 and there was a credit carry forward for 2016 of $579. Ms. Dawood did not recall the total amount of the tuition fees but testified that she borrowed $700 from her family to pay for her final certificate.

[108] Ms. Dawood testified that she completed the program around October 2015 and immediately began working as a medical administrator. The hours were part-time, but she was paid $20 per hour. Her 2015 tax return showed that Ms. Dawood’s earned $13,888. She worked from October to December in 2015.

[109] When the parties separated, Ms. Dawood moved into a three-bedroom apartment with her parents, sisters and brothers. She shared a room with her sister. She got a loan from the Royal Bank and bought a used car. The monthly loan payment was $242 per month. Ms. Dawood earned $25,568 in 2016.

[110] In May 2017, Ms. Dawood and her family moved to Kitchener. She testified that the family could not afford to live in Mississauga. In August 2017, Ms. Dawood obtained employment at Access Storage. She earned $12 per hour.

[111] Ms. Dawood testified that she has strived to find a good-paying and stable job since separating. In August 2018, she left Access Storage and began working for Belmont Dentistry. She earned approximately $15 per hour. She left because she was not getting paid on a regular basis. She then worked for Monarch Dentistry where she was earning approximately $20 per hour. She testified that she was not getting full-time employment, so she applied and obtained a new job at Crawford, which is an insurance company. This job pays $17 per hour but is full-time. Her annual salary is expected to be $32,175. She testified that if she makes it through the three-month trial period, she may take courses and may obtain raises.

[112] Ms. Dawood testified that she struggles to meet her basic needs, particularly because she has to pay child support, and owes money to the CRA. She testified that she pays $300 per month in rent. She also pays for 25% of the expenses to run the apartment that she splits with her other family members. She has a car loan and estimates she spent $320 per month on gas and insurance. She estimated $500 per month for food. It was put to her in cross-examination that this amount was high. She testified that she liked to get the children good food when they stayed with her.

[113] Ms. Dawood also testified about the repayments she has had to make to the CRA, as the CRA takes the position that she improperly received CTB, OTB and HST rebates. She testified that she paid $700 towards for CTB for 2015 and $7,715.36 for the base year 2016. $302.36 was deducted from her tax return for the base year 2016. She also testified that she paid $420.26 towards the OTB that was owed for the base year 2016 and HST repayment of $505.04 for the base year 2016.

[114] Ms. Dawood testified that she stopped paying child support because she could not pay both her expenses and the money owed to CRA. She was fearful that the CRA would freeze her bank accounts if she did not pay back some of the money they say is due.

[115] Counsel for Mr. Chaltaf cross-examined Ms. Dawood about her bank account statements. She testified that she included all of her bank accounts on her financial statement. It appears that she did not include a TFSA account, as pointed out by counsel for Mr. Chaltaf. Ms. Dawood admitted that she had this account but stated that any amounts she deposited into this were used to pay the debt to the CRA and did not contain any savings. I accept her evidence that any money deposited into this account was used to pay back the CRA.

[116] Ms. Dawood testified that Mr. Chaltaf, has a much higher standard of living even with the children living with him. She points to the fact that he has stock options, some of which he cashed in the past year. He also borrowed $15,000 from his line of credit to invest in RRSPs. In 2018, he took the children on a trip to Cuba and had a gastric sleeve surgery in Turkey, which she submits was an elective surgery. He also receives income from a rental unit that he admittedly owns, but states that he holds it in trust for his brother. In contrast, all she has for savings is the $60,000 equalization payment.

[117] With respect to how the family lived, Ms. Dawood testified that the family of four lived in a two-bedroom condominium. She agreed that the family went on three vacations during their marriage and that at the time of separation the family had a Toyota. She described the family as having a comfortable lifestyle.

Analysis

[118] Mr. Chaltaf acknowledges that Ms. Dawood is entitled to a compensatory claim, given the fact that she was the primary caregiver of the children and ran the household during the time that Mr. Chaltaf earned income to support the family.

[119] I find that Ms. Dawood has a strong compensatory claim. She suffered disadvantage as the parent who stayed at home and took care of the children. This gave Mr. Chaltaf the advantage and opportunity to pursue his career. I recognize that Ms. Dawood obtained some advantage in the marriage in that she trained to re-enter the work force prior to the separation, as opposed to after separation. Mr. Chaltaf paid approximately $13,000 for this education. Nonetheless, Ms. Dawood retrained near the end of the relationship and therefore lost the opportunity to pursue educational and employment opportunities and establish a career prior to separation.

[120] I am also satisfied that Ms. Dawood has demonstrated a non- compensatory basis for spousal support having considered her means, needs and other circumstances.

[121] Ms. Dawood has assumed a disproportionate share of the economic disadvantage resulting from the parties’ separation. She left the home and had to move in with her family. She has no assets aside from the equalization payment. She relies on the income she earns. While I recognize that she does not have custody of the children, her lifestyle is disproportionately lower than that of Mr. Chaltaf and the children. He earns a higher income and has rental income and other assets, some of which were acquired post-separation. While I recognize that she received the benefit of retraining during the marriage, there has not been enough time for her to become fully self-sufficient.

[122] I am satisfied that Ms. Dawood is entitled to spousal support in the mid-to-high range set out in the SSAG. Based on their incomes, the mid range is $624 per month and the high range is $713 per month. In this case, the without child support formula applies because the children reside with Mr. Chaltaf. In all of the circumstances, I am satisfied that Ms. Dawood is entitled to spousal support in the amount of $650 per month for the reasons set out below.

[123] First, I recognize the importance of self-sufficiency and commend the steps taken to date by Ms. Dawood to achieve self-sufficiency. However, she has not been in the work force for very long and it will likely take more time for Ms. Dawood to become fully self-sufficient.

[124] Second, self-sufficiency is a relative term, which must take into consideration the parties’ standard of living during the marriage. I find that Ms. Dawood’s standard of living has declined since the separation.

[125] While the family’s lifestyle was not extravagant, the family had a two-bedroom condo that they owned. The family had a car. They had the finances to move to and from Qatar and took three family vacations. Since the parties separated, Mr. Chaltaf took the children on a trip to Cuba; he went to Turkey for surgery and bought a more expensive used-car. Mr. Chaltaf continues to earn more money than Ms. Dawood and receives income from the rental property. He also had stocks, some of which he cashed in 2018, and RRSPs. While Mr. Chaltaf has suffered recent financial set backs, he has the ability to earn a higher income than Ms. Dawood will be able to earn for the foreseeable future.

[126] In contrast, Ms. Dawood has no assets aside from the equalization payment she received. She started a new job that has the potential to turn into something greater, but for now her earnings are not significant. She is relatively young and in good health and has the ability to pursue a career.

[127] When the parties separated, Ms. Dawood moved in with her family and shared a bedroom with her sister. The family could not afford to remain in Mississauga, so they moved to Kitchener. I do not accept Mr. Chaltaf’s position that Ms. Dawood would have made over $44,000 if she remained at Monarch where she was paid $20 an hour. The flaw with this argument is that it is premised on Ms. Dawood working 40 hours a week. Ms. Dawood testified that she was not getting full-time hours and that they would send her home if the office was not busy.

[128] I also do not accept that because she changed jobs this demonstrates that she has sufficient means to live. Ms. Dawood explained that while she was going to earn slightly less income at Crawford, the hours were full-time and there was the possibility to increase her salary

[129] I have also reviewed Ms. Dawood’s expenses and, contrary to the submission of Mr. Chaltaf’s counsel, the only expense I find excessive is her grocery estimate.

[130] Third, when considering Ms. Dawood’s needs, I am also cognizant of the fact that Ms. Dawood is a single noncustodial parent and has access to her daughters every other weekend. I am also cognizant of the fact that Ms. Dawood has to pay child support.

[131] Forth, in considering the quantum of child support, I have considered that Mr. Chaltaf will remortgage the home to pay the equalization payment. I have also considered the debt that is owed by the parties to the CRA, as discussed in greater detail below.

[132] With respect to the duration of spousal support, the parties agree that a review should take place after five years. I agree with this assessment. There is genuine and material uncertainty at the time of this trial with respect to what income Ms. Dawood will be capable of making now that she has completed her educational training and has re-entered the workforce. In addition, there is genuine uncertainty with respect to Mr. Chaltaf and his income. He just commenced a new job and he may change careers, as he has undertaken studies to re-qualify as a dentist in Canada. The eldest child will also have graduated from high school in five years. As a result, a review will be permitted five years after this order for the purpose of determining the parties’ income and the proper quantum of spousal support.

Issue #3: Should Retroactive Spousal Support and Retroactive Child Support be Ordered?

Position of the Parties

[133] Mr. Chaltaf seeks to vary Justice Price’s order and pay spousal support from May to December 2017 based on the line 150 income in his 2017 tax assessment. He also seeks to pay spousal support for 2018 based on the line 150 income on his 2018 tax assessment. He submits that Ms. Dawood should pay child support based on the actual income she earned in 2017 and 2018.

[134] Ms. Dawood’s position is that the issue of retroactive spousal and child support should not be revisited. Ms. Dawood states that the amount owing to her in spousal support if the matter is not re-opened is $9,972. Ms. Dawood admits that she owes $7,239 in child support payments to May 1, 2019 based on the order of Justice Price. She was to pay $318 per month in child support and submits that her spousal support owing should be offset by the amount of child support owed.

Guiding Principles

[135] Sections 15.1 and 15.2 of the Divorce Act, allows the court to make an interim child support and spousal support order. The purpose of the interim order is to provide some financial assistance to the parties until a final order is made. An interim order is only effective until there is a final order granted under the provisions of the Act. An interim order is not binding on the trial judge making a final order: see Stojanovski v. Stojanovski, 2016 ONSC 8090 (Ont. S.C.), at para. 207.

[136] As explained by the Saskatchewan Court of Appeal in Ford v. Ford, 2015 SKCA 23, there is no reason for a trial judge to be restricted by an interim order for child or spousal support. The court referred back to para. 2 of Sypher v Sypher (1986), 1986 6337 (ON CA), 2 R.F.L. (3d) 413 (Ont. C.A.), where Zuber J.A. held:

interim orders are intended to cover a short period of time between the making of the order and trial. I further observe that interim orders are more susceptible to error than orders made later; but the purpose of the interim order is simply to provide a reasonably acceptable solution to a difficult problem until trial.

[137] Indeed, “a full investigation of the facts” may show that “a substantially different order” from the interim order is necessary. The purpose of interim orders, coupled with the fuller factual matrix in which a trial judge renders his or her decision, requires that the court’s discretion to make a support order remain unfettered by a prior interim order: Sypher, at para. 3.

[138] In D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, the Supreme Court listed four factors the court must consider in determining whether, and to what extent, a retrospective order of child support should be made. These factors are:

i) was there a reasonable explanation for why support was not sought earlier; ii) the conduct of the payor parent; iii) the circumstances of the child; and iv) hardship occasioned to the payor by a retroactive award.

Relevant Facts

[139] Mr. Chaltaf started paying Ms. Dawood spousal support in and around March 2017, in the amount of $503 per month.

[140] In the Endorsement of Justice Price dated October 12, 2017, Mr. Chaltaf agreed to pay spousal support to Ms. Dawood in the amount of $831 per month commencing on November 1, 2017. At the time the order was made, the Notice of Assessment for 2017 and 2018 were not available. Mr. Chaltaf’s Notice of Assessment was issued on January 17, 2019. It is unknown when Ms. Dawood’s Notice of Assessment was issued.

[141] Mr. Chaltaf stopped making spousal support payments in May 2018, because he was not receiving any child support payments from Ms. Dawood. He made a total of five payments for spousal support totalling $4,115 ($831 x 5).

[142] Ms. Dawood testified that she stopped making child support payments because she could not afford to do so, given the amount of money that the CRA was seeking with respect the CTB. During this period, Ms. Dawood paid $8,299.56 to the CRA, which is similar to the amount she was supposed to pay in child support.

Analysis

[143] At the time the temporary and without prejudice orders were made, the incomes of the parties were not well defined. The purpose of interim spousal and child support orders is to provide a stopgap measure until the parties can resolve the matter.

[144] This is not a case where support was not sought earlier. It was agreed on October 12, 2017 that the parties would pay spousal and child support. Ms. Dawood stopped paying child support because she said she could not afford to pay it as she was trying to repay the CRA. In turn, Mr. Chaltaf stopped paying spousal support.

[145] I am cognizant of the financial hardship that may be imposed, in ordering retroactive spousal or child support, particularly on Ms. Dawood. With respect to the children, I note that child support is their right, not the right of the parties. I am satisfied having considered all of the circumstances that it is fair and equitable that both retroactive child and retroactive spousal support be calculated based on the parties’ actual incomes, not based on the temporary amounts agreed to in the order which were, in fact, not fully paid.

[146] Mr. Chaltaf’s income in 2017 was $123,471. Ms. Dawood’s was $30,963. As I have already found, Ms. Dawood is entitled to spousal support in the mid-to-high range. The SSAG state that support from the mid-to-high range is $1,092 to $1,248. I find that Mr. Chaltaf was required to pay spousal support to Ms. Dawood in the amount of $1,870 from November to December 2017, which would be at total of $3,740 for 2017.

[147] In 2018, Mr. Chaltaf’s income significantly diminished. His line 150 income was $27,929 and Ms. Dawood’s line 150 income was $33,943. Based on the incomes and the SSAG, there is no retroactive spousal support owing for 2018.

[148] In 2019, Mr. Chaltaf’s imputed income is $87,694. The income imputed to Ms. Dawood is $33,943. For the reasons already provided, I found that Ms. Dawood is entitled to spousal support in the mid-to-high range. The SSAG suggest support payments of $624–$713 per month in the mid-to-high range for these incomes. I find that Mr. Chaltaf owes spousal support in the amount of $650 per month. He therefore owes $5,200 in spousal support ($650 x 8).

[149] The total amount of arrears that Mr. Chaltaf owes Ms. Dawood is $8,940, as of August 31, 2019. Mr. Chaltaf paid spousal support of $4,115 under the interim order. He therefore owes Ms. Dawood $4,825 in retroactive spousal support.

[150] Turning, now to the issue of retroactive child support. Ms. Dawood was ordered to pay $318 per month in child support commencing November 1, 2017. It is not clear how that number was arrived at.

[151] In 2017, Ms. Dawood earned $30,963. Based on the Child Support Guidelines, Ms. Dawood would be required to pay $437 per month. The total owing for 2017 would be $874 ($437 x 2).

[152] In 2018, Ms. Dawood’s income was $33,943. Based on the Child Support Guidelines, Ms. Dawood would be required to pay child support in the amount of $516 per month. The total owing would be $6,192 ($516 x 12).

[153] In 2019, Ms. Dawood’s imputed income is $33,943. Her child support payments would still be $516 per month to the date of this order. The total would therefore be $4,128 ($516 x 8).

[154] As of August 31, 2019, Ms. Dawood owes child support arrears in the amount of $11,194.

[155] Ms. Dawood has paid no child support since the interim order was made. The total amount of child support owing is $11,194. When the amount that Mr. Chaltaf owes is set off, Ms. Dawood owes child support in the amount of $6,369.

[156] Mr. Chaltaf may deduct the amount of child support owing if he has not already paid Ms. Dawood’s equalization payment. If the equalization payment has been made, Ms. Dawood is to pay the child support arrears owing within 30 days of this order.

Issue #4: Who is Responsible for paying the CTB/OTB and HST to the CRA?

[157] The parties disagree who should pay the amounts owing to the CRA from the overpayments for the CTB, OTB and HST.

Position of the Parties

[158] Ms. Dawood submits that Mr. Chaltaf entered into a consent order agreeing to pay the amounts owing to the CRA. Mr. Chaltaf received these government benefits in the joint account and used the money for the benefit of the children. She submits that there was an overpayment of $9,043.39 that is owed to the CRA for the base year of 2015. Ms. Dawood paid $700 towards this amount. Ms. Dawood also submits that there is an overpayment of $14,759.68 owing to CRA for the base year 2016. Ms. Dawood submits that she paid $7,715.36 plus $302.38 that was diverted from her tax return. She seeks an order that Mr. Chaltaf be required to pay these amounts and reimburse her for the amounts that she has paid pursuant to Justice Price’s order.

[159] In addition, Ms. Dawood received a reassessment from the CRA, which states that she improperly received CTB for the base year 2014 totalling $2,200. She submits that Mr. Chaltaf is responsible for repaying the CRA this money.

[160] With respect to the OTB, Ms. Dawood seeks reimbursement for $420 that she had to pay the CRA for the base year 2016.

[161] With respect to HST that was improperly paid to Ms. Dawood, she submits that Mr. Chaltaf must reimburse her for $505.04 that she repaid for the base year 2016. She also received a notice requiring repayment of $398.29 for HST for the base year 2014. She submits that Mr. Chaltaf is also responsible for the repayment of this money to the CRA.

[162] Mr. Chaltaf takes the position that the consent order was vague and new facts have come to light such that he should not have to comply with the order. He asserts that the order was based on fraudulent facts. He further denies receiving any payments after April 2017, when Ms. Dawood was removed from the joint bank account.

[163] Mr. Chaltaf further submits that this court should not address this matter given the tax consequences any judgment may trigger. He submits that the amounts to be repaid should be dealt with by the tax courts, not family court.

Relevant Facts

[164] In the minutes of settlement dated October 12, 2017, Mr. Chaltaf agreed that he “is responsible for any child tax benefits owing by [Ms. Dawood] to the government and shall repay the government immediately for any overpayment made to him by them.”

[165] Ms. Dawood was the recipient of CTB, OTB and HST benefits for the two children, as the lower income earner of the family.

[166] These government benefits were deposited into the parties’ joint TD account ending in XXX538. It is agreed that when Ms. Dawood moved out of the home, the benefits continued to be paid into the parties’ joint account. She did not receive any benefit of this money. Mr. Chaltaf agrees that the CTB in his wife’s name was deposited into the joint account after the parties separated on August 26, 2015, up until April 2017. In April 2017, Ms. Dawood was removed from the joint account.

[167] In 2015, the parties filed their taxes as being married because they felt that there was a possibility of reconciliation. In the family law litigation, they used August 26, 2015 as the date of separation. Both parties agreed that they did not inform the CRA of the change of their marital status until they filed their taxes separately in 2016.

[168] Both parties agree that the government benefits are calculated based on the previous years tax returns and paid in the following year. For example,

(1) In the base year 2014, the benefits are received from July 2015, to June 2016; (2) In the base year 2015, the benefits are received from July 2016, to June 2017; (3) In the base year 2016, benefits are received from July 2017, to June 2018.

[169] Ms. Dawood testified that she called the CTB office sometime in 2016 to advise them that the children did not live with her.

[170] After filing their taxes separately for 2016, Ms. Dawood received notices from the CRA stating that she had to repay the CRA the CTB because she was not entitled to the benefits because the children were not living with her.

[171] Ms. Dawood also testified that she attended at the Mississauga Tax office to speak to someone but could not get anyone to talk to her in person. She testified that she contacted the CRA many times over the phone to try to resolve this issue.

[172] The CRA sent a letter to Ms. Dawood dated July 20, 2017. This letter states that Ms. Dawood was entitled to $14,215.79 in CTB. It states that the amount of $595.80 will be directly deposited monthly.

[173] In a letter dated July 28, 2017, the parties advised the CRA the date the parties separated and explained that the funds were used for the benefit of the children.

[174] In a letter dated September 20, 2017, the CRA advised that there was an adjustment for the monies paid to Ms. Dawood for the 2016 base year. The letter indicated that Ms. Dawood was no longer entitled to the payments as of July 2017. It showed that a payment was made from July 2017 to August 2017 of $1,966.66 in CTB and 416.52 for OCB totaling $1,787.39. The letter also showed that Ms. Dawood had made a prior repayment of $4,811.54 to CTB and $1,031.97 to OCB.

[175] In a letter dated October 20, 2017, the CRA advised Ms. Dawood that for the base year 2015 she owed a repayment from January 2017 to June 2017 of $7,256.00. There was a prior amount due of $1,787.39. The total amount due as of that date was $9,043.39.

[176] In a letter dated October 20, 2017, the CRA advised Ms. Dawood that she owed $2,200 for an overpayment of the Universal Child Care Benefit that was paid from September 2015 to June 2016 from the base year 2014.

[177] Ms. Dawood also provided a Notice of Assessment from the CRA dated March 20, 2018. The letter states it is for the base year 2016. This letter showed that $8,766.48 is due.

[178] Ms. Dawood also filed a letter dated April 18, 2019 for the base year 2016 (July 2017 to June 2018). It showed that as of March 28, 2019 Ms. Dawood owed $6,376.53. There was a transfer from her income tax return to the CRA for $302.38.

[179] Ms. Dawood provided a chart, along with receipts for the amounts she paid towards the 2015 and 2016 base years. She paid $700 for the base year 2015 and $7,715.36 for the base year 2016.

[180] Mr. Chaltaf agrees that he was willing to pay any amounts owing by him. He states that he had exclusive use of the TD account ending in XXX538 after separation but denied that he was the only one with access to the account. He testified that Ms. Dawood was removed from the account in April 2017, when she requested him to remove her from the joint account.

[181] Mr. Chaltaf testified that he began to receive CTB for the months of April 2017 to November 2017 into his CIBC bank account. He was shown his CIBC bank account statements by his counsel for the period of January 1 to December 30, 2018 and testified regarding the amounts he received that were CTB in the amount of $540.40 per month from January to May. In June 2018, the amount was reduced to $457.23 per month.

[182] Mr. Chaltaf also received a CTB lump sum for the 2017 tax year. His Notice of Reassessment states that he received a lump sum payment of the CTB to compensate for earlier benefits that he did not receive. This letter is dated January 17, 2019.

Analysis

[183] I disagree with Mr. Chaltaf’s submission that this is a matter for the tax court to resolve, as opposed to family court. The parties entered into a consent order in family court to deal with the repayment of benefits the family received. It is my role in these family law proceedings to determine if there is a basis to set aside that court order. I recognize that my decision may have tax implications for the parties. However, it is not fair or equitable that Ms. Dawood should have to deal with the tax authorities on this issue, alone, when Mr. Chaltaf received the benefit of some of this money and agreed to repay what he received pursuant to a court order. Both parties are responsible for this tax situation.

[184] As explained by the Court of Appeal for Ontario in McGowan v. McGowan, 1995 1085 (ON CA), [1995] 24 O.R. (3d) 707 (C.A.), “a consent order is an order and so long as it stands it must be treated as such.” This principle is based on the importance of respecting the parties’ right to decide for themselves to come to an agreement and to protect the possibility of finality in agreements based on the informed consent of both parties. A consent judgment can only be rectified on the same grounds on which a contract can be rectified: see Monarch Construction v. Buildevco Ltd. (1988), 26 C.P.C. (2d) 164; Su v. Lam, 2017 ONSC 2414.

[185] Rule 59.06(2)(a) of the Rules of Civil Procedure sets out the grounds for setting aside an order. This includes fraud, as well as “facts arising or discovered after it was made.” This requires consideration of the state of the parties’ knowledge at the time the order was made.

[186] I do not find that there was any fraud, or that new facts have arisen, that would justify setting aside the order agreed to by the parties. Mr. Chaltaf agreed that “he was responsible for any CTB owing by [Ms. Dawood] to the government and shall repay the government immediately for any overpayment made to him by them.” Mr. Chaltaf knows what payments were made to him in Ms. Dawood’s name and that the children benefited from the monies that were deposited into the joint account up until at least April 2017.

[187] The issue to be determined is what benefits Mr. Chaltaf received and what amounts is he required to pay back to the CRA. I am satisfied that Mr. Chaltaf received government benefits into the joint account until at least the end of April 2017. The parties agree that Ms. Dawood was on the joint account at that time. It is less clear where the monies were deposited after April 2017.

[188] Mr. Chaltaf is responsible for the repayment of the $2,200 owed to the CRA for the Universal Child Care Benefit that was paid from September 2015 to June 2016. The parties separated in August 2015. These monies would have been deposited into the joint account for the benefit of the children and are therefore payable by Mr. Chaltaf, as well as any interest accrued to the CRA.

[189] I also find that Mr. Chaltaf is also responsible for the monies owing for the 2015 base year. This money was paid from July 2016 until June 2017. Mr. Chaltaf agreed that the money went into the joint account until the April 2017, and that he used the money for the benefit of the children.

[190] I am satisfied that he received the benefit of the money for the entire 2015 base year. The parties advised the CRA in a letter on July 28, 2017, that they were separated. This letter states that since the children have lived with the father, “the Child Tax Benefits are being deposited directly to our joint account with TD bank.” The parties mutually agreed that Mr. Chaltaf would take the benefits and use the money for the children. The letter also states that Ms. Dawood did not take these monies or benefits since separating. Based on this letter, I find that the parties agreed that Ms. Dawood did not receive any funds from the government for her benefit as of the date of this letter. As a result, it is ordered that Mr. Chaltaf pay to Ms. Dawood the amount of $9.043.39 and any interest that is owing for the base year 2015. This takes into account the $700 that Ms. Dawood states she paid towards the base year 2015.

[191] Ms. Dawood has not met her onus in proving that Mr. Chaltaf received the CTB for the base year 2016 (July 2017 to June 2018), after July 2017. I have come to this conclusion for several reasons.

[192] First, I find that Mr. Chaltaf received the government benefits until at least August 2017. The letter sent by the parties advising the CRA that they were receiving the CTB in Ms. Dawood’s name into the joint account was dated July 28, 2017. I do not accept Mr. Chaltaf’s evidence the government cancelled the CTB for months as of June 2017, when the letter the parties sent was not dated to the CRA until July 28, 2017. A letter from the CRA dated September 20, 2017 states that Ms. Dawood is not entitled to the benefits. It is reasonable therefore to assume she received the benefits for July and August, 2017.

[193] Second, Ms. Dawood has not proven on the balance of probabilities what monies are owed to the CRA for the base year 2016 (July 2017 to June 2018). In the letter dated July 20, 2017, the CRA advised Ms. Dawood that she was entitled to $14,214.79 for the year with a deposit of $595 made on July 20, 2017. It seems unlikely to me that she received money for the entire year. A letter from the CRA dated September 20, 2017 states that she was no longer entitled to benefits as of July 2017. It would be hoped that the CRA stopped payments once they made that assessment, which means that the payments should have stopped by September 20, 2017.

[194] Third, Ms. Dawood did not file any banking records to show what, if any benefits, were paid by the government or received into any account for the base year 2016 (July 2017 to June 2018). Ms. Dawood suggested that the payments Mr. Chaltaf received into his CIBC account were payments made to her. I cannot accept that suggestion. The CIBC account is different from the joint TD account where the government benefits were previously paid. CIBC banking records support Mr. Chaltaf’s evidence that he applied for and began receiving the CTB personally. His 2018 CIBC bank records for account ending in XXX9233 show deposits from the government in the amount of $540.60 on a monthly basis, which he states was the CTC he received in his name after he applied. Moreover, by October 10, 2017, Ms. Dawood listed her own bank account for direct deposit on her tax return, not the joint account.

[195] It is Ms. Dawood’s onus to demonstrate that Mr. Chaltaf received the money that she owes the CRA. Ms. Dawood has failed to satisfy me that Mr. Chaltaf received the monies owing for the 2016 base year (July 2017 to June 2018), except for the months of July and August 2017. As noted above, the letter from the parties to the CRA was not sent until July 28, 2017 and a letter was sent on September 20, 2017 from the CRA stating that Ms. Dawood was not entitled to the CTB. I am satisfied that the monies continued to go into the joint account in July and August 2017 based on these letters.

[196] Ms. Dawood is therefore responsible for the amount owing to the CRA for the base year 2016 on a prorated basis. She is required to pay 10/12^th of the amount owing, plus interest. Mr. Chaltaf is required to pay 2/12^th (or 1/6^th) of the amount owing. Ms. Dawood shall request the CRA to provide a letter outlining what precisely is owing for the base year 2016 so that Mr. Chaltaf can reimburse Ms. Dawood appropriately.

OTB

[197] Mr. Chaltaf agreed that he would repay the OTB that was paid into the joint account for the benefit of the children. OTB was paid to Ms. Dawood after they separated in 2015. Ms. Dawood states that this money was owed for the base year 2016 (July 2017 to June 2018). I am not satisfied that Mr. Chaltaf received the benefit of this money for the children as there is no evidence as to when the money was deposited.

HST

[198] Ms. Dawood has not demonstrated that Mr. Mr. Chaltaf received the HST payments for the base year of 2016. She testified that she was required to repay the CRA $505.04 for the base year 2016 (July 2017 to June 2018). She filed no evidence of when the deposits were made for this money. Mr. Chaltaf is not required to reimburse Ms. Dawood for this money.

[199] Mr. Chaltaf is required to pay $389.29 to Ms. Dawood for the amount the CRA says is owing for HST repayments made for the base year 2014 (July 2015 to June 2016). The parties shared the joint account up to April 2017. In the circumstances, I am satisfied that the money was paid into the joint account for the benefit of the children.

Issue #5: How Should Section 7 Expenses be Dealt with Moving Forward?

Position of the Parties

[200] Although Mr. Chaltaf paid for 100% of the costs of the children’s activities to date, he is not seeking retroactive s. 7 payments. He is, however, seeking a proportional contribution from Ms. Dawood moving forward. He submits that Ms. Dawood has implicitly consented to the children’s involvement in Taekwondo, as well as Arabic school and cultural dancing, by attending and taking the children to and from the activities. The parties agree that consent must be given in writing prior to incurring any new s. 7 expenses in the future.

[201] Mr. Chaltaf submits that Mr. Dawood has the income to pay s. 7 expenses, particularly as she has appeared to have made monthly contributions to her TFSA account. Mr. Chaltaf also submits that the Guidelines require Ms. Dawood to contribute proportionately to the cost of any premiums he pays towards the health and dental benefit. Mr. Chaltaf did not know how much this would cost as he is in the process of finding a new plan.

[202] Ms. Dawood takes the position that she simply cannot afford to pay for special expenses because that would leave her in a deficit, particularly as she owes money to the CRA for the overpayments.

Guiding Principles

[203] Section 7 of the Child Support Guidelines permits either party to request an order to cover all or a portion of a variety of different expenses. The court, in considering the expenses, takes “into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation.”

[204] Section 7 lists expenses that may be requested to be covered. The relevant subsections in this case are as follows,

(b) that portion of the medical and dental insurance premiums attributable to the child;

(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; and

(d) extraordinary expenses for extracurricular activities.

[205] Subsection 7(1.1)(a) defines extraordinary expenses “that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive” for child support. If subsection 7(1.1)(a) is not applicable, subsection (b) applies. It states the court considers if the expense is extraordinary taking into account,

(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate;

(ii) the nature and number of the educational programs and extracurricular activities;

(iii) any special needs and talents of the child or children;

(iv) the overall cost of the programs and activities; and

(v) any other similar factor that the court considers relevant.

[206] The guiding principle in determining the amount of an expense referred to in section 7(1) “is that the expense is shared by the spouses in proportion to their respective incomes” after deducting from the expense any credits or deductions that relate to the expense.

[207] The established test for whether an expense is extraordinary is whether it is “reasonable and necessary,” having regard to the parties individual and collective means to pay. The court assesses whether the expense is objectively sensible for the particular family. Section 7 expenses are expenses that are outside the ordinary expenses contemplated by the figures contemplated in the Child Support Guidelines, but they are still part of child support: See Ostapchuk v. Ostapchuk, 2003 57399 (ON CA), [2003] 64 O.R. (3d) 496 (Ont. C.A.).

Relevant Facts

[208] The parties’ daughter is currently 13 years old and their son is 7. Both children attend Arabic school. Their daughter started in 2013 and their son started in 2017. The cost for school is $764 per year for both children. Ms. Dawood drops the children off at Arabic school.

[209] Mr. Chaltaf did not consult Ms. Dawood when he put the children into Taekwondo. They started these classes in 2017 and the cost is $90 a month, per child.

[210] The parties’ daughter also takes cultural dance. Mr. Chaltaf did not consult Ms. Dawood when he decided that his daughter should take the dance classes. She started in September 2016. The sessions are eight lessons and cost $90 per session. There was no indication as to how many sessions she does a year, but she is in an advanced class.

[211] Mr. Chaltaf has paid for these expenses since separation.

Analysis

[212] In determining whether to award s. 7 expenses, the court must first calculate the parties’ income for child support purposes. In this case, Mr. Chaltaf’s incomes is 87,693.66 and Ms. Dawood’s income is $33,943.

Medical & Dental Coverage

[213] The expense of medical coverage falls within a category of s. 7 expenses. It is in the children’s best interests to have medical and dental coverage. In the circumstances, it may be that the children are covered under Ms. Dawood’s medical plan with her new employer. Regardless, this is a necessary and important expense for the benefit of the children, as such, I am ordering that the parties pay a proportionate share based on their income with respect to any amount that is not covered under any employment health plan that either party may have.

Arabic School, Taekwondo and Cultural Dance

[214] The extra curricular activities must be extraordinary, in the sense that they are additional costs of raising a child that are not incorporated into the table amounts: see Ostapchuk. The cultural dance, Taekwondo and Arabic school all fall into the category of extraordinary.

[215] The activities the children are involved in are in their best interests. They attended Arabic school prior to separation. The Taekwondo and dance lessons for their daughter are also in her best interests, as it appears that she enjoys these activities. Similarly, Taekwondo is in their son’s best interest because this appears to be the only activity outside of school that he is involved in.

[216] My concern is whether these expenses are reasonable in light of the parties’ income and spending pattern prior to separation. The children were not involved in Taekwondo or dance prior to separation. Mr. Chaltaf did not consult Ms. Dawood prior to enrolling them in these activities. Mr. Chaltaf submits that Ms. Dawood implicitly agreed to those activities. That is a different issue with respect to who should pay for the activities. Ms. Dawood has limited means and is paying child support. In all of the circumstances, it is reasonable for Ms. Dawood to pay a proportion of Arabic school, but not Taekwondo or dance lessons.

[217] Based on the parties’ income, Ms. Dawood’s proportional share for the s. 7 expenses is 25.8%.

[218] If there are any further special expenses that arise, the parties agree that they will consult with each other and get written consent before the s. 7 expense is incurred.

Final Order

[219] It is ordered that:

1. Mr. Chaltaf’s shall pay Ms. Dawood spousal support based on an imputed income of $87,693.66.
2. Ms. Dawood’s shall pay child support based on imputed income of $33,943.
3. Spousal support for Ms. Dawood is ordered in the amount of $650 per month commencing September 1, 2019.
4. Child support is ordered to be paid by Ms. Dawood in the amount of $516 per month, commencing on September 1, 2019.
5. Either party may apply for a review after September 1, 2024 in relation to spousal support.
6. The parties shall provide each other with his or her complete personal income tax returned as filled with the CRA together with the his or her notice of assessment for the preceding year and any other documentation related to businesses or corporations that is required by the Child Support Guidelines, by June 1, annually, commencing on June 1, 2020.
7. The parties shall adjust effective from January 1^st of each year, if necessary, the quantum of child support payable and their proportional shares of any special or extraordinary expenses, in accordance with the Guidelines, with liberty to either party to apply to this court in the event of a dispute.
8. Ms. Dawood is to pay her proportional share of the costs of Arabic school within 30 days of being provided with a copy of the receipt for the cost of the school.
9. The parties will agree to any other extraordinary expenses in writing prior to the s. 7 expense being incurred.
10. Mr. Chaltaf owes Ms. Dawood $8,940 in retroactive spousal support. Ms. Dawood owes Mr. Chaltaf $11,194 in retroactive child support. Applying a set off to the amounts owed, Ms. Dawood must pay Mr. Chaltaf the lump sum of $6,369 in retroactive child support. This amount may be taken out of the equalization payment if it has not been paid. If it has been paid, Ms. Dawood is required to pay this amount within 30 days of this order.
11. Mr. Chaltaf shall pay to Ms. Dawood the amount of $2,200 plus any interest owing for the overpayment of the Universal Child Care Tax Benefit for the base year 2014 within 30 days of this order.
12. Mr. Chaltaf shall pay to Ms. Dawood the amount of $9,043.39, plus any interest owing for the overpayment of the CTB for the base year 2015 within 30 days of this order.
13. Ms. Dawood is responsible to pay the amounts owing to the CRA for the overpayment of the CTB for the base year 2016. Upon proof that she has made that payment she will provide Mr. Chaltaf with documentation and he will be required to reimburse Ms. Dawood for 1/6^th of the amount paid within 30 days of receiving proof of the amount owing.
14. Mr. Chaltaf is to pay Ms. Dawood $389.29 for the HST rebate that was paid in base year 2014 within 30 days of this order.
15. Post-judgment interest for any amounts not paid in accordance with this order shall be at a rate of 3% per annum.

Costs

[220] If the parties are unable to resolve the issue of costs, the applicant shall serve and file written submissions of no more than two pages, double spaced, the relevant case law and a detailed bill of costs and copies of any Offers to Settle by September 25, 2019. Any reply submission consisting of written submissions of no more than two pages, double spaced, the relevant case law and a detailed bill of costs shall be served and filed by October 5, 2019.

Dennison J.

Released: August 30, 2019