COURT FILE NO.: FC-17-53625
DATE: 20191204
ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT
BETWEEN:
Sogol Ganji Haghighi Applicant
– and –
Mehrdad Hajir Respondent
Sogol Ganji Haghighi, Self-Represented
Mehrdad Hajir, Self-Represented
HEARD: October 2-3, 2019
REASONS FOR JUDGMENT
CHARNEY J.:
Introduction
[1] Sogol Haghighi and Mehrdad Hajir were married in Iran on May 26, 2011, and separated on April 1, 2016. They have one child who was born in Ontario in August, 2014.
[2] The principal matters in dispute between the parties relate to the Applicant’s claim for spousal support and child support under s. 33 of the Family Law Act, R.S.O. 1990, c. F.3 (FLA). The Applicant takes the position that the Respondent should pay spousal and child support based on an imputed income of $100,000.
[3] By consent Order dated October 25, 2017, the Respondent agreed to pay child support of $500 per month commencing November 1, 2017, based on an imputed income of $54,000 per year. He testified in these proceedings that his income is actually only $37,800 per year. He is not, however, seeking to change the consent order with respect to child support. The Respondent has earned as much as $42,000 per year, but denies ever earning, or having the ability to earn, the $100,000 the Applicant seeks to impute.
[4] The Respondent takes the position that the Applicant lives with and is supported by her parents, and does not, therefore, require spousal support.
[5] The parties have agreed to joint custody of their child, although there remains a minor dispute regarding the father’s access schedule.
Background Facts
[6] The Applicant mother (the Applicant) came to Canada with her parents in 2010, and returned to Iran to marry the Respondent father (the Respondent) on May 26, 2011. The Respondent was an Olympic level diving coach in Iran. The Applicant then returned to Canada and sponsored the Respondent, who joined her in Canada in August 2012.
[7] The parties lived with the Applicant’s parents until 2015, when they moved into a rented apartment. They purchased a house together, which was subsequently sold for $690,301 in July 2015. The mortgage on the home was $528,463, and the balance of $160,000 was split equally between the parties.
[8] The parties initially intended to purchase another house, and made an offer with a $30,000 deposit in February 2016, but this plan did not proceed because of their separation in April 2016. The deposit was refunded to each party in the amount of $15,000 each.
[9] When they separated in April 2016, the Applicant and child returned to live with her parents at her parent’s house. She continues to reside in the home with her mother.
[10] This Application was commenced in May 2017, and seeks spousal and child support retroactive to the date of separation.
[11] Neither party has applied for a divorce. The parties signed a Mahr[^1] when they married in Iran. The Applicant has brought an action in Iran to enforce the terms of the Mahr, which requires the payment of 1,000 gold coins if the husband ends the marriage. As I understand their respective positions on this issue, the Applicant will forfeit her rights under the Mahr if she applies for a divorce, and the Respondent will be obliged to pay under the Mahr if he applies for a divorce.
[12] The Respondent was born in 1977. His Notice of Assessment for 2015 indicates a total income of $17,419; for 2016 a total income of $12,844; for 2017 a total income of $9,185; and for 2018 a total income of $5,311. He acknowledges that his total income from his Notices of Assessment does not reflect his actual income, which he estimates at $37,800 for 2018. Part of his income comes from rental income, part from employment and his swim school business, and part (approximately 50%) from cash gifts from his parents in Iran.
[13] The Applicant, who was born in 1990, was not employed for most of their relationship because she was attending school as a full-time student. She has recently completed a 3-year computer program analyst course at George Brown College.
[14] In 2017 the Applicant received the Canada and Ontario child tax credits for $7,899 for the year ($658.24 per month), and Ontario Student Assistance Program grants, but has no other income, except for money paid to her by her parents. In 2019 she began working in a dental office and as an Uber driver, and indicates that she earned $700 per month ($8,400 per year).
[15] The father originally worked for UPS when he moved to Canada, but now operates a private swimming/diving school. The swim school caters primarily to the Iranian community in the GTA.
[16] There is no question that the expenses of both parties far exceed their reported income. Each takes the position that they are able to afford this because of financial support from their respective parents.
Statutory Provisions
[17] The relevant provisions of s. 33 of the FLA provide:
(7) An order for the support of a child should,
(a) recognize that each parent has an obligation to provide support for the child;
(b) apportion the obligation according to the child support guidelines.
(8) An order for the support of a spouse should,
(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;
(b) share the economic burden of child support equitably;
(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and
(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).
(9) In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including,
(a) the dependant’s and respondent’s current assets and means;
(b) the assets and means that the dependant and respondent are likely to have in the future;
(c) the dependant’s capacity to contribute to his or her own support;
(d) the respondent’s capacity to provide support;
(e) the dependant’s and respondent’s age and physical and mental health;
(f) the dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;
(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
(h) any legal obligation of the respondent or dependant to provide support for another person;
(i) the desirability of the dependant or respondent remaining at home to care for a child;
(j) a contribution by the dependant to the realization of the respondent’s career potential;
(k) Repealed: 1997, c. 20, s. 3 (3).
(l) if the dependant is a spouse,
(i) the length of time the dependant and respondent cohabited,
(ii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,
(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,
(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,
(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support,
(v.1) Repealed: 2005, c. 5, s. 27 (12).
(vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and
(m) any other legal right of the dependant to support, other than out of public money
Imputing Income
[18] Section 19 of the Child Support Guidelines, O. Reg. 391/97 addresses imputing income to a spouse and sets out a non-exhaustive list of circumstances in which income may be imputed. These circumstances include intentional under-employment or failure to report income from sources such as cash payments.
[19] In this case the mother alleges that the father’s swim school is primarily a cash business, and therefore his Notices of Assessment do not accurately reflect his income.
[20] The onus is on the party seeking to impute income to the other party to establish an evidentiary basis on which this finding can be made. As noted by the Court of Appeal in Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (C.A.), at para. 44, when considering the proper basis for imputing income under s. 19 of the Guidelines, there must be “a rational basis” underlying the figure selected and the exercise of the court’s discretion must be “grounded in the evidence.” See also: Mason v. Mason, 2016 ONCA 725, at para. 127.
[21] The Respondent denied that his swim school business generated undeclared cash income. He explained that the parents of his students do not want to pay cash, and want receipts for all payments so that they can be used for tax and other purposes. He rents the pools where he provides instruction from municipal community centres, and teaches classes a few hours a week. He rents the pools for 1.5 hours per week for $1,148 per month for most of the year, and for 7 hours per week for $2,200 per month in July and August. His expenses leave little room for profit. He has provided his CRA corporate Notices of Assessment, which indicate that the corporation operating the swim school has made no profit since 2016.
[22] Apart from his work at the swim school, all of the Respondent’s employment (he has worked at several jobs since coming to Canada in 2012) has been as a T4 employee, and there is no ability for him to earn significant undeclared cash income. For example, the Respondent has recently obtained his real estate licence in Ontario, but his commission income for 2019 to the date of trial was only $2,194.91.
[23] The Applicant filed as evidence many photographs of the swim school taken from the school’s website. These photos indicate that there are as many as a dozen students. The Applicant asked the court to infer from these photographs that the swim school generated significant cash revenue. I am unable to draw any inference regarding the profitability of the Respondent’s swim school from these promotional photographs. Even if the Respondent did generate some cash revenue from the swim school, there is no evidentiary basis to conclude that it could approach the $100,000 figure advanced by the Applicant.
[24] The Respondent has provided some statistical information that indicates that the average swim instructor salary in Canada is $52,650 per year. He has also provided evidence that the annual salary of a lifeguard/swim instructor employed by the University of Toronto is $39,000 to $43,000.
[25] The Respondent has also provided several notes from physicians indicating that since 2017 the Respondent has suffered from a skin allergy that is irritated by exposure to the chlorine in swimming pools. This medical condition restricts the time that he can be in a swimming pool, and limits his ability to earn income as a swim or diving instructor.
[26] In the present case the Respondent’s income as reflected in his Notices of Assessment does not reflect what he is capable of earning. The Respondent acknowledges this, and has agreed to an imputed income of $54,000 per year for the purposes of child support. It appears that he is able to afford support payments on this basis because of the financial support he receives from his own parents.
[27] In my view, $54,000 is an appropriate amount to impute for both spousal and child support. Given the Respondent’s qualifications as a swim and diving instructor, he could earn approximately this amount if he were to seek employment in his field.
Retroactive Support
[28] In Kerr v. Baranow, 2011 SCC 10, the Supreme Court outlined the factors that should be taken into account when the court is asked to order support for a period before the date of the order. The Court stated, at para. 207:
While D.B.S. [v. S.R.G., 2006 SCC 37] was concerned with child as opposed to spousal support, I agree with the Court of Appeal that similar considerations to those set out in the context of child support are also relevant to deciding the suitability of a “retroactive” award of spousal support. Specifically, these factors are the needs of the recipient, the conduct of the payor, the reason for the delay in seeking support and any hardship the retroactive award may occasion on the payor spouse. However, in spousal support cases, these factors must be considered and weighed in light of the different legal principles and objectives that underpin spousal as compared with child support.
[29] In the present case, I am satisfied that child support payments should be retroactive to the date of separation (April 2016), but spousal support payments should be retroactive to the date of the application (May 2017). I have no evidence that requests for child or spousal support were made before the date of the application, but the Respondent should have been aware of his child support obligations. There is evidence on the record that these proceedings were delayed by the Respondent’s failure to provide full financial disclosure following the commencement of the application, but there is no blameworthy conduct on the part of the Respondent that would merit making spousal support payments retroactive to the date of separation.
[30] I am also concerned that making a spousal support award retroactive to the date of separation will cause economic hardship to the Respondent. This is particularly true given that his support obligations are based on an imputed income.
Child Support
[31] Based on these considerations, the Respondent’s child support obligations would begin on May 1, 2016. He did not begin to pay child support until November 2017. His arrears are therefore calculated on the basis of 18 months (May 2016 to October 2017) at $500 per month, for a total of $9,000.
Spousal Support
[32] Given the factors set out in s. 33(9) of the FLA, I am of the view that mid-range spousal support is appropriate. The parties were married for only 5 years before separation, and there is no evidence that the Applicant gave up any employment or career opportunities when they married. At best, any career opportunities were delayed by the birth of their child in 2014, but the Applicant did go back to school full-time in 2016 and completed a 3-year computer program analyst course.
[33] As a full-time student with a young child, she earned no employment income from the date of separation until the end of 2018, and only $8,400 in 2019. Based on this income, the Applicant is entitled to $951 per month spousal support for the months of May 2017 to the end of December 2018 (20 months), for a total of $19,020, plus $437 per month for the 12 months of 2019, for a total of $5,244. The total retroactive award for May 2017 up to and including December 2019 is $24,264.
[34] Going forward, the Applicant has now completed her college program and should be able to find at least part-time employment at minimum wage. Even if I were to impute a minimal part-time income of only $18,000 per year, her entitlement to mid-range spousal support would be reduced to nil. Accordingly, the Respondent’s spousal support obligations will end at the end of 2019.
Total Retroactive
[35] Based on these calculations the Respondent’s total retroactive payments are $33,264, comprised of $9,000 retroactive child support and $24,264 retroactive spousal support. He continues to have on-going child support obligations of $500 per month. In order to alleviate any economic hardship arising from this retroactive award, it may be paid as a lump sum or at the rate of $1,008 per month for 33 months.
Other Issues
[36] As indicated above, the parties have agreed to joint custody of their child. The section 7 expenses are to be divided on a pro-rata basis based on their respective incomes. Based on the present imputation of income, that would require the Respondent to pay 2/3 of s. 7 expenses and the Applicant to pay 1/3. That division is subject to change if either party has a change in income.
[37] The Applicant proposes that the Respondent have access every weekend from Friday after school until Sunday at 6:00 p.m. and one day a week from after school until 7:00 p.m.
[38] The Respondent proposes a slightly different schedule: Tuesday after school and overnight until Wednesday drop-off at school, Friday’s from after school until 9:00 p.m. (7:00 p.m. in the winter) and Saturday from 6:00 p.m. until Sunday at 6:00 p.m.
[39] While both proposals are reasonable, it is my view the schedule proposed by the Respondent provides for a more balanced access schedule. It is important that the father have a weekday overnight so that he is not relegated to a “weekend parent” status.
[40] Any changes to the access schedule should be agreed to on at least 48 hours notice.
[41] The parties have agreed that school holidays will be shared as follows: each party will get one week at Christmas, one party will have the March break week, and the Christmas weeks and March break will alternate between the parties every year. Both parents may have a one-week vacation with the child out of the country and may travel only to a Hague Convention country.
[42] The Respondent claims that the Applicant still owes him $35,000 with respect to the equalization of property. His argument on this point was difficult to follow, and, as far as I can determine, is not supported by any of the documents presented. As far as I can determine the parties paid a $30,000 deposit on the house they were going to purchase jointly before they separated. When the house deal did not close, the deposit was refunded to them, $15,000 each. In my view, there are no outstanding issues with regard to the equalization of property.
Conclusion
[43] This Court Orders:
(a) The Respondent will continue to pay child support in the amount of $500 per month based on an imputed annual income of $54,000.
(b) The Respondent will pay retroactive child support in the amount of $9,000 for the period May 2016 to October 2017.
(c) The Respondent will pay retroactive spousal support in the amount of $24,264 for the period May 2017 to and including December 2019.
(d) The Respondent’s obligation to pay monthly spousal support ends as of December 31, 2019.
(e) The retroactive child and spousal support may be paid in a lump sum or as a monthly payment of $1,003 per month for 33 months.
(f) The parties will have joint custody of their son, born August 22, 2014.
(g) The s. 7 expenses will be divided pro-rata on the basis of income, the Respondent will pay 2/3 and the Applicant 1/3.
(h) The Respondent will have access with the child according to the following schedule: Tuesday after school and overnight until Wednesday drop-off at school, Friday’s from after school until 9:00 p.m. (7:00 p.m. in the winter) and Saturday from 6:00 p.m. until Sunday at 6:00 p.m. Any changes to the access schedule should be agreed to on at least 48 hours notice.
(i) School holidays will be shared as follows: each party will get one week at Christmas, one party will have the March break week, and the Christmas weeks and March break will alternate between the parties every year. Both parents may have a one-week vacation with the child out of the country and may travel only to a Hague Convention country.
Costs
[44] The parties were self represented in the proceeding before me, but did retain counsel in the past. As such, legal costs may be claimed if they relate to the preparation of this trial. If the parties cannot agree on costs, the Applicant is to file costs submissions of no more than 3 pages plus any costs outline and offers to settle, within 30 days of the release of this decision, and the Respondent may file responding submissions on the same terms within 20 days thereafter.
Justice R.E. Charney
Released: December 4, 2019
ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT
BETWEEN:
Sogol Ganji Haghighi Applicant
– and –
Mehrdad Hajir Respondent
REASONS FOR DECISION
Justice R.E. Charney
Released: December 4, 2019
[^1]: An Islamic marriage contract, sometimes written as “Maher” in the case law: Bakhshi v. Hosseinzadeh, 2017 ONCA 838.