COURT FILE NO.: FS-14-393572
DATE: 20200818
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Noha Abd El Kerim
Applicant
– and –
Walid Kamal El Din Mahmoud Badr
Respondent
Poroshad Mahdi, Counsel for the Applicant
Walid Kamal El Din Mahmoud Badr. in person
HEARD: February 18-19, 2020
REASONS FOR DECISION
NISHIKAWA j.
Overview
[1] The Applicant, Noha Abd El Kerim, and the Respondent, Walid Kamal El Din Mahmoud Badr, were married in Egypt in April 2010 and separated in February 2012. In July 2014, they were granted a divorce by order of this court. They have one child, Adam, who was born in August 2011.
[2] After the marriage, Ms. Abd El Kerim sponsored Mr. Badr and his daughter, Nadeen, who was eight years old at the time, to come to Canada. Mr. Badr and Nadeen arrived in Canada in November 2010.
[3] Ms. Abd El Kerim is employed as a project manager at a financial institution. Mr. Badr is currently unemployed.
[4] Ms. Abd El Kerim seeks sole custody of Adam, as well as child support and contributions to s. 7 expenses. Based on the Application and in the absence of submissions to the contrary, this application was dealt with as an application for corollary relief under ss. 15.1 and 16(1) of the Divorce Act.
[5] Mr. Badr, who was self-represented at trial, seeks joint custody. Alternatively, he seeks regular access to Adam.
Procedural Background
[6] After the divorce was granted in July 2014, this proceeding was dormant until 2019. On August 1, 2019, Ms. Abd El Kerim’s motion for summary judgment for sole custody of Adam was adjourned at Mr. Badr’s request.
[7] At the hearing on August 13, 2019, Shore J. granted temporary sole custody of Adam to Ms. Abd El Karim on a without prejudice basis. Under Shore J.’s order, Mr. Badr was granted access to Adam for two hours on Sundays at a supervised access centre. The parties agreed to supervised access as a means of reintegrating Mr. Badr, who had not seen Adam since March 2017, into Adam’s life. Shore J. set the matter down for trial on November 18, 2019.
[8] On that date, Akbarali J. granted Mr. Badr’s request for an adjournment on the basis that he was retaining counsel. Justice Akbarali ordered certain terms, including that Mr. Badr comply within 14 days with a previous order for disclosure. In addition, the parties were required to attend a trial management conference (“TMC”) on January 6, 2020. Justice Akbarali ordered that if Mr. Badr failed to attend the TMC, the judge hearing the TMC could set the matter down to proceed as an undefended trial.
[9] Mr. Badr failed to attend the TMC, at which time Stevenson J. scheduled the trial for February 18, 2020, peremptory against Mr. Badr. The trial was to proceed whether or not Mr. Badr attended.
Issues
[10] The issues to be determined are as follows:
(a) Whether Ms. Abd El Kerim should be granted sole custody of Adam on a final basis;
(b) If Ms. Abd El Kerim is granted sole custody, what is the nature of the access to be granted to Mr. Badr;
(c) Whether Ms. Abd El Kerim should be able to travel with Adam without Mr. Badr’s consent;
(d) Whether Ms. Abd El Kerim should be able to apply for government documents for Adam without Mr. Badr’s signature;
(e) Whether Mr. Badr has an obligation to pay child support and, if so, how much;
(f) Whether Mr. Badr is required to pay retroactive child support and, if so, how much;
(g) Whether Mr. Badr has an obligation to contribute to s. 7 expenses and, if so, what is his proportionate share;
(h) Whether Mr. Badr is required to pay retroactive s. 7 expenses and, if so, how much; and
(i) Whether Ms. Abd El Kerim has an obligation to pay child support for Nadeen and, if so, how much.
Analysis
Should the Applicant Be Granted Sole Custody?
[11] Ms. Abd El Kerim submits that she should have sole custody of Adam because she has always been his primary caregiver, even before the parties separated. She submits that Mr. Badr does not know how to parent and is unable to put Adam’s interests ahead of his own.
[12] Mr. Badr seeks joint custody. Mr. Badr testified that he cared for Adam when he was a baby, including changing his diapers and putting him to bed. Mr. Badr testified that during his visits after the separation, Adam was always happy to see him. Mr. Badr disputes Ms. Abd El Kerim’s position regarding his ability to parent, and highlights the fact that he has been the primary caregiver to his daughter, Nadeen, from a young age until the present.
[13] Mr. Badr does not want Ms. Abd El Kerim to have sole custody because he is afraid that she will take Adam to Egypt and never return to Canada. Both parties allege that the other has threatened to take Adam to Egypt. Mr. Badr states that Ms. Abd El Kerim has reason to relocate to Egypt because both her brother and sister live there and because she could earn significantly more income there than in Canada. Ms. Abd El Kerim denies that she would take Adam to a country that is unfamiliar to him and where he does not speak the language. She further states that there is no reason for her to move to Egypt because she has a good, secure position with a financial institution and a two-year lease on her residence.
[14] Ms. Abd El Kerim alleges that it is more likely that Mr. Badr would take Adam to Egypt because Mr. Badr frequently travels to Egypt, and because he had a better lifestyle there. Ms. Abd El Kerim testified that Mr. Badr has told her in the past that his family holds the belief that children should be raised by their fathers. In support of her position, she points to the fact that Mr. Badr left Egypt with Nadeen when she was still young, even though her mother remained in Egypt.
[15] Under s. 16(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp), the court may make an order respecting the custody of or the access to a child of the marriage. In making an order for custody or access, the court shall take into consideration “only the best interests of the child as determined by reference to the conditions, means, needs and other circumstances of the child”: s. 16(8). Further, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact: s. 16(10).
[16] Subsection 16(4) of the Divorce Act permits the court to make an order granting custody to more than one person. In Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275 (C.A.), at para. 11, the Court of Appeal for Ontario held that for an order of joint custody to be made, there must be some evidence before the court that despite their differences, the parents are able to communicate effectively with one another.
[17] In my view, it is in Adam’s best interests that Ms. Abd El Kerim be granted sole custody. Ms. Abd El Kerim has taken care of Adam on her own for most of his life. She has attended to his well-being and educational needs. While I do not have evidence of Adam’s views and preferences, his report cards describe him as bright, outgoing and thoughtful. Ms. Abd El Kerim’s desire to provide Adam with opportunities and experiences is evident in her efforts to enroll him in an appropriate school and in a range of extracurricular activities.
[18] By contrast, Mr. Badr has shown little interest in Adam’s education or upbringing, other than to question Ms. Abd El Kerim’s decision to enroll Adam in Montessori and private school. Until now, Mr. Badr has not sought a greater role in the major decisions affecting Adam’s life or even increased access time. Mr. Badr has not attended any parent-teacher interviews. He appears to have been satisfied with weekly visits where he would take Adam and Ms. Abd El Kerim to do an activity and to a meal. Mr. Badr has not seen Adam in over three years, which is a very lengthy period for a child of nine years of age. Tellingly, Mr. Badr has not availed himself of supervised access visits provided for in Shore J.’s order.
[19] Moreover, the evidence demonstrates that the parties are unable to communicate and cooperate. Both allege verbal abuse by the other, including name-calling in Adam’s presence. Ms. Abd El Kerim alleges that Mr. Badr was physically abusive toward her on at least two occasions. On one occasion several years ago, when they had a disagreement during an access visit, Ms. Abd El Kerim alleges that Mr. Badr took Adam out of the stroller and tried to leave with him. Ms. Abd El Kerim then put Adam back in the stroller and ran away.
[20] Ms. Abd El Kerim’s testimony that she and Mr. Badr are unable to cooperate is undermined somewhat by the fact that she accompanied Mr. Badr on his access visits with Adam. However, she explained that her presence was not a problem because, at the time, Mr. Badr was trying to win her back. In any event, the evidence demonstrates that the parties do not have a history of communicating regarding Adam, his education or health needs or well-being.
[21] Ms. Abd El Kerim further submits that Mr. Badr’s conduct in this proceeding demonstrates that joint custody is unworkable. She argues that his failure to provide necessary disclosure and to attend scheduled dates, as well as his last-minute adjournments requests, demonstrates that he is uncooperative and has no respect for rules. In her endorsement, Akbarali J. noted that Mr. Badr was participating “just enough to make the litigation process ineffective, time-consuming, and expensive for [the Applicant].”
[22] In addition, I am not satisfied that there is a real risk that Ms. Abd El Kerim would remove Adam to Egypt. Ms. Abd El Kerim is a Canadian citizen and has been living here since 1998. She has good, stable employment and has developed ties in Canada. There is no evidence that she wished or attempted to stay in Egypt when she took Adam there for a visit in 2012. Nor did Ms. Abd El Kerim try to relocate to Egypt during a period when she was unemployed. Moreover, I find it highly unlikely that she would move Adam to a country where he does not speak the language, especially given her concerns about his educational needs, as further detailed below.
[23] There is a slightly greater risk that Mr. Badr would return to Egypt, since he maintains ties there and has no stable employment in Canada. However, if he intended to relocate there, it is likely that he would have done so earlier, given the marriage breakdown and the failure of his businesses. It is unlikely that Mr. Badr would leave his daughter, Nadeen, who is 19 years old and has lived most of her life in Canada. Moreover, Ms. Abd El Kerim also testified that Mr. Badr was only interested in marrying her because he wanted her to sponsor him and his daughter to move to Canada. Ms. Abd El Kerim’s allegation that Mr. Badr married her to gain entry into Canada is inconsistent with the allegation that he would take Adam and return to Egypt.
[24] Accordingly, Ms. Abd El Kerim is granted sole custody of Adam with decision-making authority for the major decisions in Adam’s life, including but not limited to his health and education.
What is the Nature of Access to be Granted to the Respondent?
[25] Mr. Badr has not specified the degree of access he is seeking. He would like to be a part of Adam’s life and believes that as his father, Adam should know him, but Mr. Badr has not provided any parenting plan.
[26] Ms. Abd El Kerim testified that she is not against Adam having a relationship with Mr. Badr and that she never prevented Mr. Badr from seeing Adam in the past. However, she submits that because of her concerns about Mr. Badr removing Adam to Egypt and because access has always been supervised by her, Mr. Badr should have only supervised access at this stage.
[27] The parties dispute the extent of Mr. Badr’s contact with Adam after the separation. Mr. Badr testified that he “baby-sat” Adam numerous times while Ms. Abd El Kerim went out. While Mr. Badr stated that he had text messages to prove this, he did not produce any.
[28] Ms. Abd El Kerim denies that Mr. Badr ever “baby-sat” Adam. Ms. Abd El Kerim testified that Mr. Badr and Nadeen moved to Burlington and he complained about coming to Toronto to visit Adam. Mr. Badr had access visits with Adam, in her presence and never overnight, during the following time periods:
• From February 2012 to July 2013– Mr. Badr had weekly access to Adam but exercised it irregularly;
• From July 2013 to November 2013 – Mr. Badr visited Adam only once when he was in the hospital;
• From November 2013 to May 2014 – Mr. Badr resumed weekly access visits supervised by the Applicant, and cancelled twice during this period;
• From May 2014 to May 2015 – no access; and
• From May 2015 to March 5, 2017 – Mr. Badr resumed weekly access visits supervised by the Applicant, except when he went to Egypt from August to mid-September 2016.
[29] It is undisputed that Mr. Badr has not seen Adam since March 2017. Mr. Badr last contacted Ms. Abd El Kerim about seeing Adam on March 12, 2017. The last time he contacted her at all was a text message on August 4, 2017 to wish Adam happy birthday.
[30] The parties disagree as to why there has been no access since March 2017. Mr. Badr testified that Ms. Abd El Kerim suspended his access to Adam when he refused to contribute to Adam’s private school fees. Ms. Abd El Kerim testified that she told Mr. Badr that she wanted to arrive at an agreement about child support and access but that she never denied access.
[31] Either way, Mr. Badr has not seen Adam for over three years, which is a very long time for a young child. There is no evidence of any efforts to see Adam during this time period. Even though an interim order for supervised access was made in August 2019, Mr. Badr did not avail himself of this access.
[32] As noted by the Court of Appeal for Ontario in Kaplanis, at para. 12, an interim custody order and how that order has worked is a relevant consideration for the trial judge. If supervised access had taken place, there would be some record upon which this court could consider ordering unsupervised or further access to Mr. Badr. However, because the supervised access did not take place, there is no evidence of any supervised access visits or their effect on Adam.
[33] Given the length of time that has passed since Adam last saw Mr. Badr, and because access has always been supervised, at this stage, it would not be appropriate to make an order for unsupervised or overnight access. Mr. Badr agreed to supervised access before Shore J. In addition, I accept Ms. Abd El Kerim’s statement that if the supervised access goes well, she would be willing to consider further or unsupervised access in the future.
[34] Accordingly, Mr. Badr shall have weekly access to Adam on Sundays for two hours at a supervised access centre. The cost of the access centre is to be borne by Mr. Badr.
Should the Applicant be Able to Travel with Adam without the Respondent’s Consent?
[35] Ms. Abd El Kerim seeks an order permitting her to travel with Adam without the need for Mr. Badr’s prior consent. She also seeks an order authorizing her to apply for government documents for Adam without Mr. Badr’s signature.
[36] Ms. Abd El Kerim testified that in August 2016, Mr. Badr impeded her attempts to obtain a passport for Adam. Mr. Badr initially signed Adam’s passport application. However, the Passport Office was unable to contact him because he was in Egypt. When Mr. Badr returned to Canada in September 2016, he revoked his signature.
[37] Mr. Badr testified that he revoked his signature because a Passport Office representative told him that Ms. Abd El Kerim would be able to take Adam anywhere without his consent. Ms. Abd El Kerim alleges that Mr. Badr revoked his signature because she would not agree to shared parenting of Adam, which she alleges Mr. Badr sought to avoid paying child support.
[38] Ms. Abd El Kerim, who has sole custody, should be able to travel with Adam without having to rely on Mr. Badr’s consent. As I found above, it is unlikely that Ms. Abd El Kerim will remove Adam permanently from Canada to Egypt. She has consistently facilitated Mr. Badr’s access to Adam and has not attempted to preclude a relationship between them. By contrast, Mr. Badr has repeatedly shown himself to be unresponsive or unwilling to fulfil his obligations to provide information, including in this litigation.
[39] Accordingly, Ms. Abd El Kerim shall be able to travel with Adam without Mr. Badr’s consent. In the event that they are to travel outside of Canada, Ms. Abd El Kerim shall advise Mr. Badr at least 10 days in advance of the departure date where she and Adam will be going and where Adam can be reached.
Should the Applicant Be Able to Apply for Adam’s Government Documents Without the Respondent’s Signature?
[40] Based on the foregoing, I find that Mr. Badr was uncooperative in Ms. Abd El Kerim’s attempt to obtain a passport for Adam.
[41] Accordingly, Ms. Abd El Kerim shall be able to apply for all government documents for Adam without Mr. Badr’s signature. Ms. Abd El Kerim also shall have possession of all of Adam’s government documents.
Does the Respondent Have an Obligation to Pay Child Support?
[42] Ms. Abd El Kerim seeks child support for Adam under s. 15.1 of the Divorce Act.
[43] Mr. Badr does not challenge Ms. Abd El Kerim’s entitlement to child support. Mr. Badr testified that from March 2015 to March 2017, he was paying $1,300 per month, which was comprised of $700 per month in support plus the cost of gifts and outings for Adam.
[44] Given that Mr. Badr accepts that he must pay child support, the only issue is the appropriate amount.
Should Income be Imputed?
[45] In determining the appropriate amount of child support, it is necessary to determine Mr. Badr’s income and whether income ought to be imputed to him.
[46] Ms. Abd El Kerim submits that income of $75,000 to $145,000 per year ought to be imputed to Mr. Badr because of his intentional unemployment or underemployment and his failures to disclose financial information.
[47] Pursuant to s. 16 of the Federal Child Support Guidelines, SOR/97-175 (the “CSG”), the obligation to pay is based on the payor’s income, as stated on line 150 of their T1 income tax return.
[48] The court may impute income to a parent or spouse as it considers appropriate in the circumstances, including when the parent is intentionally underemployed; when the parent has failed to provide information when under a legal obligation to do so; and when the parent unreasonably deducts expenses from income: CSG, s. 19(1)(a), (f), and (g).
[49] Imputing income is “one method by which the court gives effect to the joint and ongoing obligations of parents to support their children. In order to meet this legal obligation, a parent must earn what he or she is capable of earning:” Drygala v. Pauli, 2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731 (C.A.), at para. 32.
[50] In Drygala v. Pauli, at para. 36, the Court of Appeal for Ontario stated that it is not necessary to find bad faith or an intent to avoid child support in order to impute income. There must, however, be a rational and evidentiary basis for imputing income, which must be governed by the principles of reasonableness and fairness: Drygala v. Pauli, at para. 44.
[51] The order of Shore J. required Mr. Badr to produce:
• A full copy of all Canadian and Egyptian passports held in his name from July 1, 2014 to the date of the order;
• 2016, 2017, and 2018 Income Tax Returns and Notices of Assessment;
• All applications for “credits” in the Respondent’s name or any entity or corporation controlled by him from July 1, 2014 to the date of the order;
• All document related to the recent purchase of a business;
• Bank statements, personal and business, from July 1, 2014 to the date of the order;
• Business financial statements and general ledgers for all businesses owned or operated by the Respondent or in which he had an interest from 2014 to 2018;
• Corporate tax returns and assessments for same; and
• Proof of his efforts to obtain the above documents, if he is unable to obtain them.
[52] The trial scheduling endorsement form required that updated financial statements be exchanged two weeks before trial.
[53] Despite the court’s orders, Mr. Badr provided limited documentary disclosure. He produced only the photo pages of his Canadian and Egyptian passports, one financial statement dating back to May 2014, bank account statements for one CIBC account from January 2018 to November 2019, and a notice of termination of his lease. The financial statement was from the period during which Mr. Badr was employed as a school bus driver and a gas station attendant, and is significantly out of date.
[54] Parties to family law proceedings are required to make full and frank disclosure about their finances so that the proper assessments and orders can be made: see e.g. Family Law Rules, O. Reg. 114/99, r. 13(6) and (17). Non-disclosure should not be rewarded: Gray v. Rizzi, 2016 ONCA 152, 129 O.R. (3d) 201, at para. 29.
[55] Because of Mr. Badr’s failure to disclose, it is very difficult to obtain an accurate picture of his income and assets. Not only was Mr. Badr obligated to make complete financial disclosure under the Family Law Rules, at least three court orders specifically required him to do so. Parties are not free to disregard court orders. Non-compliance with court orders must have consequences: Cirinna v. Cirinna, 2018 ONSC 4831, 14 R.F.L. (8th) 138, at para. 22; Taylor v. Taylor, 2005 CanLII 63820 (ON SC), [2005] O.J. No. 4593 (Sup. Ct.), at para. 3.
[56] Based on the foregoing considerations, I find it appropriate to impute income to Mr. Badr for his failure to disclose financial information. Mr. Badr was told repeatedly that he would have to produce his financial documents. The order of Shore J. identified the required documents. The order of Akbarali J. reiterated this requirement. Mr. Badr failed to comply with these orders and with Stevenson J.’s further order that he produce relevant documents before the trial date. Based on Mr. Badr’s failures to disclose and his inability to be forthright about his finances, I infer that he has undisclosed income and/or assets.
[57] In addition, I must determine whether income should be imputed to Mr. Badr for his intentional underemployment: see Child Support Guidelines, s. 19(1)(a).
[58] When imputing income based on intentional underemployment or unemployment, a court must consider what is reasonable under the circumstances. This will depend on factors such as the party’s age, education, experience, skills and health, as well as the availability of job opportunities to determine what is reasonable in the circumstances: Drygala v. Pauli, at para. 45.
[59] According to his evidence, before coming to Canada, Mr. Badr earned a good income as an actor and film director in Egypt. He had two houses and a car, and his daughter attended international school. Mr. Badr testified that he sold everything before coming to Canada and that he paid for the parties’ wedding and honeymoon. Mr. Badr claims that all of his savings were exhausted.
[60] After Mr. Badr came to Canada, he started a film certificate course at Ryerson University. At various times, Mr. Badr worked at a grocery store and at a pizzeria. In 2014, after the separation, Mr. Badr worked at two jobs, as a school bus driver and at a gas station. His May 2014 financial statement reported an income of $18,765.
[61] In 2015, Mr. Badr purchased equipment from Egypt to start a business, Cairo Bakery. The business suffered when Mr. Badr lost employees. Mr. Badr eventually closed the business and sold the equipment. After that business failed in 2018, Mr. Badr spent $30,000 to start a second bakery business, Puff Pastry. Of that amount, $10,000 was a loan from a friend and the balance came from the sale of equipment from Cairo Bakery. The second business failed in early 2019, which was approximately nine months before trial.
[62] Mr. Badr’s Notices of Assessment for the years 2016 to 2018 report line 150 income of $10,360, $12,000 and $0.00 respectively. He provided no tax returns. Mr. Badr testified that he was earning $2,800 to $3,000 per month when he was operating Cairo Bakery. He stated that during this time, he was paying $700 per month in support and an additional $600 per month in outings and gifts when he saw Adam. If Mr. Badr was in fact paying a total of $1,300 per month, his income was significantly more than the minimal amounts reflected in his Notices of Assessment. Based on his own testimony, I find that Mr. Badr underreported his income and used his business to pay personal expenses.
[63] Ms. Abd El Kerim agrees that when Mr. Badr’s business was profitable, he was paying $700 per month in child support. Ms. Abd El Kerim requests that this court infer that Mr. Badr paid $700 per month because he knew this was the table child support based on his annual income, which was therefore around $75,000. Ms. Abd El Kerim further requests that this court impute income of up to $145,000 to Mr. Badr because he takes frequent trips to Egypt and had an affluent lifestyle there.
[64] Since approximately July 2019, Mr. Badr has been receiving social assistance. Despite Stevenson J.’s TMC order that all documents to be relied on at trial be produced by January 20, 2020, Mr. Badr sought to adduce into evidence statements regarding social assistance payments that had not previously been produced. Notwithstanding Mr. Badr’s failure to comply with the TMC order, I held that the statements were admissible because they were the only evidence of Mr. Badr’s current financial circumstances.
[65] Mr. Badr testified that Nadeen, who is employed full-time as a head cashier at a clothing store, contributes to the household expenses.
[66] Because Mr. Badr has filed no financial statements since 2014, there is limited evidence about his expenses and lifestyle. However, other than the evidence that Mr. Badr’s business was relatively successful, he does not have a history of consistent employment. I accept the evidence that he is currently receiving social assistance and lives in a one-bedroom apartment with his daughter. Mr. Badr’s lifestyle before he came to Canada has little bearing on his current financial circumstances. Even if he had a higher income at some point, this no longer appears to be the case. Ms. Abd El Kerim has not satisfied me that there would be any basis for imputing annual income of $75,000 to $145,000 to Mr. Badr.
[67] Taking all the factors into consideration, I am satisfied that Mr. Badr is intentionally unemployed. Mr. Badr is 53 years old and in good health. He was able to obtain funds to set up two separate businesses within a short time period. He has a school bus driver license and experience in a range of positions, from film-making to food production. Mr. Badr has demonstrated little interest or effort in securing employment. He is not unemployed in order to pursue education or retraining. Other than his bald testimony that he has been applying for jobs, Mr. Badr has provided no specific evidence of his efforts to secure employment.
How Much Child Support Should the Respondent Pay?
[68] Given his experience and abilities, Mr. Badr could be earning more than he receives in social assistance. Minimum wage would result in an annual income of approximately $30,000. Based on his experience, skills, and access to funds, I find it appropriate to add 40 percent, for a total income of $42,000 per year.
[69] Accordingly, Mr. Badr shall pay table child support for Adam based on an annual income of $42,000 to Ms. Abd El Kerim effective February 1, 2020. The table amount is $381 per month.
Is the Respondent Obligated to Pay Retroactive Child Support?
[70] Ms. Abd El Kerim seeks child support commencing from the date of separation, March 2012. This would result in over eight years of retroactive support.
[71] In S.(D.B.) v. G.(S.R.), 2006 SCC 37, [2006] 2 S.C.R. 231 [S.(D.B.)], the Supreme Court articulated two guiding principles that apply to the issue of retroactive child support. First, both parents have an obligation to ensure that proper support is paid for the child’s benefit at the time it is due. Second, the court must balance the support payor’s interest in the certainty of the status quo with the need for fairness and flexibility.
[72] The decision to award retroactive support is discretionary. In DBS, the Supreme Court identified the following factors for the court to consider in determining whether to exercise its discretion:
(i) whether the recipient parent supplied a reasonable excuse for their delay in seeking support;
(ii) the conduct of the payor parent, including whether the payor parent behaved in a blameworthy manner in relation to child support;
(iii) the circumstances of the child, and the extent to which they may benefit from a retroactive award; and
(iv) the potential hardship to the payor of a retroactive award.
[73] Ms. Abd El Kerim commenced this Application in March 2014, giving Mr. Badr effective notice of her intent to pursue child support.
[74] For certain periods of time since their separation, Mr. Badr paid child support to Ms. Abd El Kerim. According to her, Mr. Badr contributed the following amounts, for a total of $7,600 since the separation:
• May to June 2012 - $300
• December 2015 to July 2016 - $4,000
• August 2016 - $500 toward Adam’s birthday party
• November 2016 to February 2017 - $2,800 ($700 per month)
[75] I accept Ms. Abd El Kerim’s evidence that Mr. Badr paid $7,600 in child support because Mr. Badr adduced no documentary evidence, such as bank account statements, to substantiate that he paid a higher amount.
Although Mr. Badr paid support inconsistently, Ms. Abd El Kerim accepted the amounts and took no steps to proceed with this Application until 2019. As noted above, this proceeding was dormant for almost five years. Ms. Abd El Kerim has provided no explanation for the long delay in pursuing the Application. In S.(D.B.), at para. 123, the Supreme Court stated as follows: “While the date of effective notice will usually signal an effort on the part of the recipient parent to alter the child support situation, a prolonged period of inactivity after effective notice may indicate that the payor parent’s reasonable interest in certainty has returned.”
[76] Since Ms. Abd El Kerim re-initiated the proceeding, however, Mr. Badr has prevented it from proceeding by failing to disclose financial information and by failing to attend court.
[77] As a result of his current circumstances, hardship to Mr. Badr is a relevant factor. While Adam would benefit from a retroactive award, an award of eight years of child support would negatively impact Mr. Badr’s ability to pay ongoing support, given that Mr. Badr is currently unemployed and receiving social assistance.
[78] Based on my consideration of the relevant factors, I am not prepared to exercise my discretion to award child support retroactive to March 2014, when the Application was brought. In my view, it is appropriate to award retroactive child support from February 1, 2019.
[79] For the foregoing reasons, Mr. Badr shall pay retroactive child support from February 1, 2019 to January 30, 2020. For the purposes of determining the amount of retroactive child support, I apply the same imputed income of $42,000 to Mr. Badr. It would not be appropriate to impute a higher income to Mr. Badr because his second business failed in February 2019. Based on an annual income of $42,000, Mr. Badr shall pay a total of $4,572 in retroactive child support to Ms. Abd El Kerim.
Should the Respondent Be Required to Contribute to Section 7 Expenses?
[80] Ms. Abd El Kerim seeks an order requiring Mr. Badr to pay his proportionate share of s. 7 expenses for Adam.
[81] Section 7 expenses are expenses that are outside the ordinary expenses contemplated by the figures contemplated in the Child Support Guidelines, but that are still part of child support: see Ostapchuk v. Ostapchuk, 2003 CanLII 57399 (ON CA), [2003] 64 O.R. (3d) 496 (C.A.). 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.
[82] Section 7 lists expenses that may be requested to be covered, which includes extraordinary expenses for extracurricular activities. “Extraordinary expenses” are expressly defined at s. 7(1.1) of the Child Support Guidelines as follows:
(1.1) For the purposes of paragraphs (1)(d) and (f), the term “extraordinary expenses” means:
(a) 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 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; or
(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account:
(v) 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,
(vi) the nature and number of the educational programs and extracurricular activities,
(vii) any special needs and talents of the child or children,
(viii) the overall cost of the programs and activities, and
(ix) any other similar factor that the court considers relevant.
[83] In determining whether to make an order regarding s. 7 expenses, the court must take 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 spouse and those of the child, and to the family’s spending pattern prior to separation: s. 7(1).
[84] In respect of extracurricular activities, when deciding whether a particular expense or the totality of expenses claimed on behalf of children under s. 7(1)(d) and (f) is “extraordinary,” the court should take into consideration the combined income of the parties, as well as the nature and amount of the individual expense, the nature and number of the activities, any special needs or talents of the children, and the overall cost of the activities: McLaughlin v. McLaughlin, 1998 CanLII 5558 (BC CA), [1998] 167 D.L.R. (4th) 39 (B.C.C.A.), at para. 81.
[85] Adam is enrolled in martial arts, swimming, soccer, hip hop, and skating during the school year. In the summer, Ms. Abd El Kerim registers Adam for summer day camp and tennis lessons. Since December 2019, Adam has been enrolled in tutoring at a cost of $44 per hour for three hours per week, or $132 per week. Ms. Abd El Kerim testified that when Adam started public school, he was found to be behind in history. There are currently no expenses for before or after school care, because her friend picks up Adam from school.
[86] Ms. Abd El Kerim’s yearly income from TD is approximately $78,000, as supported by a pay stub showing her bi-weekly income. Ms. Abd El Kerim’s 2018 Notice of Assessment shows that she earned $118,201 that year. However, her income was higher in 2018 because she redeemed an RRSP and received a severance from CIBC, where she had been employed. Ms. Abd El Kerim has approximately $80,000 in debts. Her annual expenses exceed her income. She testified that she draws from a line of credit and uses her credit cards to pay for the s. 7 expenses. Ms. Abd El Kerim also contributes $250 per month toward an RESP for Adam. For the purposes of calculating the parties’ proportionate share of the s. 7 expenses, Ms. Abd El Kerim’s annual income is $78,000.
[87] The s. 7 expenses exceed those that Ms. Abd El Kerim can reasonably cover, taking into account her income and the amount she would receive in support.
[88] Taking into consideration the combined income of the parties, the nature and amount of the expenses, the nature and number of the activities, Adam’s special needs or talents, and the overall cost of the activities, I find that tutoring, swimming, skating, and soccer are extraordinary expenses to which Mr. Badr should be required to contribute. The cost of the remaining activities is not reasonable in view of the family’s income as a whole.
What is the Respondent’s Proportionate Share of Section 7 Expenses?
[89] Going forward, Mr. Badr shall pay his proportionate share of the expenses for tutoring, swimming, skating and soccer. Based on the parties’ respective incomes, Mr. Badr shall pay 35 percent and Ms. Abd El Kerim shall pay 65 percent of the expenses. In the event that Adam’s activities change and Ms. Abd El Kerim seeks contribution for expenses other than those provided for above, she shall seek Mr. Badr’s consent before incurring the expenses.
Should the Respondent Be Required to Pay Retroactive Section 7 Expenses?
[90] Ms. Abd El Kerim seeks a contribution of $40,000 in retroactive s. 7 expenses from Mr. Badr. Ms. Abd El Kerim claims that she paid a total of $80,912.82 for Adam’s Montessori school tuitions, uniforms, materials, field trips, before and after school care, and for his extracurricular activities. Ms. Abd El Kerim testified that she paid all of these amounts without any contribution from Mr. Badr and that she incurred debt in order to pay the expenses.
[91] Where the recipient parent seeks retroactive payment of s. 7 expenses, the court may exercise its discretion to relieve against or mitigate undue hardship which may result from such an order: Hulley v. Carroll, [2008] 47 R.F.L. (6th) (Ont. Sup. Ct.), at paras. 24 and 26. In doing so, the court should consider both the criteria in s. 7 of the Child Support Guidelines and the factors laid down by the Supreme Court of Canada in S.(D.B.).
[92] Having found that child support is to be ordered from January 1, 2019, the same timeframe applies to retroactive s. 7 expenses.
[93] From February 2019 to trial, Ms. Abd El Kerim incurred a total of $14,272.30 in s. 7 expenses for: Montessori school tuition ($7,800), before and after care, clubs and field trips ($2,820); March Break and summer day camps ($1,386.27); swimming ($149.16), skating ($310), and martial arts ($1,806.87).
[94] From the above, the only expense that it would not be reasonable to expect Mr. Badr to contribute toward retroactively is the martial arts membership. This is a significant expense about which Mr. Badr was not consulted and is not reasonable given the parties’ incomes and the other activities in which Adam participates.
[95] It is reasonable for Mr. Badr to contribute to the Montessori school tuition and related fees, as well as before and after care and day camps, which permitted Ms. Abd El Kerim to work full-time. While Mr. Badr was not consulted about Montessori school, the amount is for one year’s tuition, and was beneficial to Adam because it provided him with additional support that he required at school.
[96] The total retroactive s. 7 expenses are $12,465.43, of which Mr. Badr shall pay 35 percent, or $4,362.90. This is not an amount that would cause undue hardship to Mr. Badr, especially considering that he did not contribute to any such expenses from the date of separation.
Is the Applicant Obligated to Pay Child Support for the Respondent’s Daughter?
[97] Mr. Badr seeks child support for his daughter, Nadeen, who is now 19 years old. She did not testify at trial.
[98] Ms. Abd El Kerim testified that although she sponsored Nadeen to come to Canada with Mr. Badr, she never stood in the role of a parent to Nadeen. She states that Nadeen has always maintained a strong relationship with her birth mother in Egypt.
[99] Nadeen lived with Ms. Abd El Kerim from the time she arrived in Canada in November 2010 to February 2012 when the parties separated. Mr. Badr alleges that when they were together, Ms. Abd El Kerim was abusive toward Nadeen. Ms. Abd El Kerim denies any abuse, but states that Nadeen told her she was not her mother and was disrespectful toward her. Ms. Abd El Kerim has not been in contact with Nadeen since the separation because she did not permit Nadeen to accompany Mr. Badr when he visited Adam.
[100] Mr. Badr bears the burden of proving that Ms. Abd El Kerim stands in the role of a parent to Nadeen. I am not satisfied that this burden has been met. Nadeen lived with Ms. Abd El Kerim for just over a year and has had no contact with her in over eight years. She is not a child of the marriage within the meaning of the Divorce Act.
[101] Nadeen is now 19 years old and working full-time as a head cashier at a clothing store. Moreover, Mr. Badr made no attempt to pursue support for Nadeen throughout the course of this proceeding. To the contrary, Mr. Badr delayed the proceeding at every opportunity.
[102] Accordingly, Ms. Abd El Kerim has no obligation to pay child support for Nadeen. Mr. Badr’s claim for child support for Nadeen is dismissed.
Is the Applicant Entitled to Costs?
[103] At the end of the trial, Ms. Abd El Kerim’s counsel submitted a sealed envelope containing her bill of costs. After completing my decision on the substantive issues in the Application, I opened the sealed envelope.
[104] The Applicant’s bill of costs shows a total of $51,355.05 in costs, including HST and approximately $1,000 in disbursements. Counsel’s fees are at an hourly rate of $400.
[105] Ms. Abd El Kerim also made two offers to settle, on June 23, 2019 and October 30, 2019. The first offer was to settle the issues of custody, access, travel and government documents. At trial, Ms. Abd El Kerim was successful on all the issues.
[106] The second offer deals with child support and retroactive payments of child support and s. 7 expenses. Ms. Abd El Kerim was not more successful than her offer on ongoing child support, which was based on imputed income of $60,000. She was also less successful on retroactive child support an s. 7 expenses, which was $30,000 until October 2019.
[107] The Court of Appeal has identified the four fundamental purposes that modern cost rules are designed to foster: (i) to partially indemnify successful litigants; (ii) to encourage settlement; (iii) to discourage and sanction inappropriate behaviour by litigants; and (iv) to ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867, at para. 10.
[108] The exercise of judicial discretion in awarding costs is guided by Rule 24 of the Family Law Rules, both in terms of the entitlement of a party to an award of costs as well as to the quantum of that award. The considerations in determining the appropriate quantum of a costs award are found in Rule 24(12), which reads as follows:
24 (12) In setting the amount of costs, the court shall consider,
(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:
(i) each party’s behaviour,
(ii) the time spent by each party,
(iii) any written offers to settle, including offers that do not meet the requirements of rule 18,
(iv) and legal fees, including the number of lawyers and their rates,
(v) any expert witness fees, including the number of experts and their rates,
(vi) any other expense properly paid or payable; and
(b) any other relevant matter.
[109] In assessing the success of a party, the court looks to the positions taken by the parties at trial, Berta v. Berta, 2015 ONCA 918, at para. 102, as well as to the offers to settle exchanged by the parties as compared with the terms of the final order: Lawson v. Lawson, 2008 CanLII 23496 (ON SC), [2008] O.J. No. 1978 (Sup. Ct.).
[110] Rule 18(14) provides that, unless the court orders otherwise, a party is entitled to costs to the date the offer was served and full recovery of costs from that date subject to certain conditions being met. One of the terms to be met is that the party who made the offer must have obtained an order that is as favourable or more favourable than the offer. To trigger the potential of full recovery costs pursuant to r. 18(14) a party must do as well or better than all of the terms of an offer (or a severable section of an offer). See Chomos v. Hamilton, 2016 ONSC 6232, at para. 19.
[111] Rule 24(8) of the Family Law Rules provides that the court “shall decide costs on a full recovery basis” if a party has acted in bad faith. Rule 24(8) requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made: Chomos v. Hamilton, at para. 43.
[112] Other than as provided in rr. 24(8) or 18(14), there is no provision in the Family Law Rules that provides for a general approach of “close to full recovery” costs: Beaver v. Hill, 2018 ONCA 840, at para 11.
[113] Ms. Abd El Kerim is not entitled to full indemnity costs after the date of her offers to settle because she was not more successful than her offers. In addition, she has not met the high threshold for establishing bad faith on the part of Mr. Badr. While I found that he failed to comply with orders for disclosure and failed to attend court, I do not find such non-compliance to have been in bad faith.
[114] Accordingly, Ms. Abd El Kerim is entitled to costs on a partial indemnity basis. Based on the issues, the number of appearances required, and the efforts made to resolve the matter at an earlier stage, I find the amount to be generally proportionate. The bill of costs indicates that Ms. Abd El Kerim received a 25 percent discount from the full indemnity rate. I fix the Applicant’s partial indemnity costs of the Application, including disbursements and HST, at $23,000.
Conclusion
[115] Accordingly, an order to go as follows:
(a) The Applicant, Noha Abd El Kerim, shall have sole custody of the child of the parties’ marriage, Adam Walid Badr, born August 4, 2011;
(b) The Respondent, Walid Kamal El Din Mahmoud Badr, shall have access to Adam at a supervised access centre for two hours per week beginning August 23, 2020;
(c) Ms. Abd El Kerim shall be able to travel outside of Canada with Adam without the necessity of obtaining a travel consent letter/notarized document from Mr. Badr;
(d) Ms. Abd El Kerim shall notify Mr. Badr 10 days before the departure date of any travel outside of Canada, including where Adam may be reached;
(e) Ms. Abd El Kerim shall be able to apply for all government documents, including a passport, for Adam without Mr. Badr’s signature, and shall hold such documents;
(f) Mr. Badr shall pay table child support to Ms. Abd El Kerim in the amount of $381 per month, based on an imputed annual income of $42,000, effective February 1, 2020;
(g) Mr. Badr shall pay Ms. Abd El Kerim retroactive child support from February 1, 2019 to January 30, 2020, for a total of $4,572;
(h) Mr. Badr shall pay Ms. Abd El Kerim $4,362.90 in retroactive s. 7 expenses;
(i) The parties shall each pay their proportionate share of the s. 7 expenses for tutoring, swimming, skating, and soccer. Mr. Badr shall pay 35 percent and Ms. Abd El Kerim shall pay 65 percent; and
(j) Mr. Badr’s claim for child support for Nadeen is dismissed;
(k) A support deduction order shall issue;
(l) Pursuant to s. 25 of the Federal Child Support Guidelines, the parties shall, by April 30 each year, exchange financial information for the adjustment of child support;
(m) Mr. Badr shall pay Ms. Abd El Kerim costs of the application in the amount of $23,000.
[116] This decision is effective as an order of this court immediately upon release. Counsel for the Applicant may forward an unapproved draft order to the family intake office for my signature.
Nishikawa J.
Released: August 18, 2020
COURT FILE NO.: FS-14-393572
DATE: 20200818
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Noha Abd El Kerim
Applicant
– and –
Walid Kamal El Din Mahmoud Badr
Respondent
REASONS FOR JUDGMENT
Nishikawa J.
Released: August 18, 2020