ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
YAHYA ABBAS
Appellant
- and -
METHAQ ALBOHAMRA
Respondent
COUNSEL: Ronald B. Moldaver, for the Appellant/Respondent on Cross-Appeal Elaheh (Ella) Aiaseh, for the Respondent/Appellant on Cross-Appeal
HEARD: October 7 and 18, 2019 in Brampton
REASONS FOR DECISION
[On appeal from the Order of Sullivan J. of the Ontario Court of Justice dated January 15, 2019]
McSweeney J.
OVERVIEW
1This is an appeal and cross-appeal of the Order of Sullivan J. of the Ontario Court of Justice. Sullivan J. heard the trial of this application on October 22, 23 and 24, 2018, and released his Order and Reasons for Judgment on January 15, 2019.
2The appeal is about custody and child support quantum for the parties’ only child. This child, daughter M.A., is currently six years old. The child’s father is Mr. Abbas, the Appellant/Respondent on cross-appeal, and her mother is Ms. Albohamra, the Respondent/Appellant on cross-appeal.
3I have now heard the submissions of the parties and read the appeal and cross-appeal materials filed, including the decision appealed from and the trial transcript.
4For the reasons below, I find no reversible error made by the trial judge. The appeal and cross-appeal are dismissed.
BACKGROUND FACTS
5For ease of reference, I will refer to the Appellant/Respondent on cross-appeal as Mr. Abbas, and the Respondent/Appellant on cross-appeal as Ms. Albohamra.
6The background facts described briefly below are not in dispute. They are referenced at paragraphs 1 to 10 of Sullivan J.’s Reasons for Judgment and are otherwise found in the trial transcripts.
7Mr. Abbas is the owner of a beverage packaging company named YaYa Foods Inc., which employs approximately 230 employees. He is also a founder and managing member of a mosque in Toronto, Ontario. Ms. Albohamra is currently unemployed, but in the past she owned a cleaning business. She is a stay-at-home mother providing care to the parties’ daughter M.A. and to her four older children from a previous marriage.
8In 2008, Mr. Abbas and Ms. Albohamra met at their community mosque. Shortly after they met, Mr. Abbas began providing advice and support to Ms. Albohamra as she was experiencing difficulties. In 2009, Mr. Abbas and Ms. Albohamra began an intimate relationship. The parties soon married in a religious ceremony which took place during one of their private meetings in the community. The marriage between Mr. Abbas and Ms. Albohamra can be described as a religious marriage but not a civil marriage. This was Mr. Abbas’ second marriage, as he was also married to his wife of 34 years, Ms. Al-Shami. At all times, Mr. Abbas remained married to and living with Ms. Al-Shami.
9Mr. Abbas and Ms. Albohamra did not live together at any point. However, over the course of their five-year relationship, Mr. Abbas arranged and paid for Ms. Albohamra’s housing and other living expenses.
10In May 2013, Ms. Albohamra gave birth to the parties’ child, M.A. Mr. Abbas continued to pay Ms. Albohamra’s living expenses after M.A. was born.
11In December 2013, when M.A. was approximately six months old, Mr. Abbas went to the mosque, without Ms. Albohamra, and divorced her in a religious ceremony.
12On August 7, 2015, Mr. Abbas filed an application seeking sole custody of M.A. In her Answer, Ms. Albohamra sought, inter alia, sole custody of M.A. and child support for M.A. and her four other children from a previous marriage, arguing that Mr. Abbas stood in loco parentis to them.
Trial judge’s order
13On January 15, 2019, Sullivan J. released his Order and Reasons for Judgment. The court ordered, among other things, that:
Ms. Albohamra to have sole custody of M.A.;
Mr. Abbas to have access to M.A. under certain conditions;
Mr. Abbas to pay child support for M.A. to Ms. Albohamra in the monthly amount of $3,225 commencing February 1, 2019, based on an imputed income of $420,000; and
Child support arrears fixed at $103,825, to be paid by Mr. Abbas to Ms. Albohamra at the rate of $1,000 per month until paid in full.
14The trial judge’s Reason for Judgment are described in relevant part further below.
Appeal and Cross-Appeal of Sullivan J.’s Order
15By his Notice of Appeal, dated January 28, 2019, Mr. Abbas requests that Sullivan J.’s Order be set aside and the following order be made:
That Mr. Abbas and Ms. Albohamra have shared custody of M.A.;
That child support be reduced to reflect an income for Mr. Abbas of $105,000 rather than an income of $420,000 as imputed to him by Sullivan J.;
That Mr. Abbas’ child support arrears be reduced accordingly; and
That while M.A. is in Mr. Abbas’ care, that he be responsible for holding her passport.
16By her Amended Notice of Cross-Appeal, dated September 25, 2019, Ms. Albohamra requests that Sullivan J.’s Order be set aside and the following order be made:
That Mr. Abbas’ child support obligation be $6,450 per month based on an imputed income to Mr. Abbas of $865,000; and
That Mr. Abbas’ child support arrears be increased accordingly.
ISSUES on appeal
17The issues before me on this appeal and cross-appeal are as follows:
Did the trial judge err in finding that sole custody to Ms. Albohamra was in the best interests of M.A.?
Did the trial judge err in his determination of the quantum of child support? To address this issue requires answering the following two sub-questions:
(a) Did the trial judge err in finding that there was a basis to impute income to Mr. Abbas for the purpose of determining child support?
(b) Did the trial judge err in his determination of the quantum of income to be imputed to Mr. Abbas for the purpose of child support?
What, if any, adjustment to Mr. Abbas’ child support arrears should be made?
Did the trial judge err in refusing to order a travel restriction on Ms. Albohamra?
STANDARD OF REVIEW ON APPEAL
18The standard of review flows from the Supreme Court of Canada decision in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. On a question of law, the standard of review is correctness: Housen, at para. 8. On questions of fact or mixed fact and law, findings are not to be reversed unless the trial judge made a palpable and overriding error: Housen, at paras. 10, 37.
19In Children's Aid Society of the Niagara Region v. J.C., 2007 8919 (ON SCDC), [2007] O.J. No. 1058 (Div. Ct.), at para. 5, the standard of review has been described in more detail as follows:
... In regard to a pure question of law, the standard of review is correctness. For findings of fact, the standard of review is palpable and overriding error. Where the trial judge draws inferences from facts, the standard of review first is whether the trial judge made any palpable and overriding error in making the factual findings and then whether the trial judge made any palpable and overriding error in drawing inferences from those factual findings (the second part of the test is not simply whether the inferences could reasonably be drawn from the factual findings). In regard to a mixed question of law and fact, if it involves the trial judge's interpretation of the evidence as a whole, the standard is palpable and overriding error. If it involves the trial judge's interpretation of a legal standard or its application, the error may amount to an error in law and be subject to the standard of correctness.
20An appeal court may not overturn a trial judge's decision simply because it would have balanced the relevant factors differently or would have come to a different conclusion. Rather, an appeal court must intervene where there is a material error, a serious misapprehension of the evidence, or an error in law: Niagara, at para. 6.
21There are several reasons for this deferential approach to the findings of the trial judge. As noted in Woodhouse v. Woodhouse, 1996 902 (ON CA), [1996] O.J. No. 1975 (C.A.), at para. 54:
On issues of credibility, a trial judge is uniquely well placed to make the necessary findings. An appellate court should, apart from exceptional situations, refrain from interfering with those findings.
Similarly, the trial judge is in the best position to assess evidence pertaining to the best interests of the child. It is the trial judge who not only hears the evidence but also has the great advantage of watching the demeanour of all who testify.
22In practical terms, this deferential approach means that, “[i]f there is some evidence upon which the trial judge could have reached [their] factual conclusions, the appeal court will not intervene”: Children’s Aid Society of the Regional Municipality of Waterloo v. C.T., 2017 ONCA 931, at para. 32.
DISCUSSION
Issue 1: Did the Trial Judge Err in Finding that Sole Custody to Ms. Albohamra Was in the Best Interests of M.A.?
23The trial judge concluded that it was in M.A.’s best interests that sole custody be granted to her mother and ordered accordingly. The trial judge observed that M.A. had been cared for since birth by Ms. Albohamra, and the continuity and quality of that care was not put into question. Further, the trial judge noted that Ms. Albohamra was more prepared than Mr. Abbas was to develop and nurture a healthy relationship between M.A. and the other parent, her father.
24The trial judge also identified concerns with Mr. Abbas’ plan of care for M.A. That plan relied on his wife, Ms. Al-Shami, to do much of the caregiving for his daughter, and for M.A. to spend significant time while at her father’s home in the wife’s sole care. The trial judge’s concerns stemmed from the serious differences between Ms. Al-Shami and Ms. Albohamra. For example, the trial judge accepted evidence that Ms. Al-Shami verbally attacked Ms. Albohamra in public at the mosque. He noted that the two women had not resolved their differences and that Mr. Abbas’ plan did not take into account the potential adverse impact on M.A. of being exposed to that conflict or of living in a home in which her other parent was not respected.
25The trial judge ultimately held that Ms. Albohamra was better suited and more able to meet the needs of M.A., and that sole custody with Ms. Albohambra was in the child’s best interests.
i. Position of the Parties on Appeal
26On appeal, Mr. Abbas argues that the trial judge erred in failing to start his custody analysis with the presumption that each parent is equally entitled to custody. Mr. Abbas takes the position that the evidence did not rebut that presumption, and that he and Ms. Albohamra were an “exemplar” of a separated couple relationship and that joint custody was in the child’s best interest.
27Mr. Abbas further submits that the trial judge erred in his analysis by putting too much weight on (a) the amount of time M.A. had spent with her mother, and (b) the importance of the evidence of the verbal altercation at the mosque between Ms. Al-Shami and Ms. Albohamra. He further submits that the trial judge failed to apply the “maximum contact” principle to his access ruling.
28Responding on appeal, Ms. Albohamra submits that the trial judge had cogent evidence to conclude that the best interests of M.A. are served by granting her sole custody of the child. Furthermore, Ms. Albohamra submits that the trial judge did not err in finding that Ms. Albohamra is the party who will best preserve and promote maximum contact between M.A. and her father. Ms. Albohamra also argues that the trial judge correctly considered the living arrangements of M.A. should Mr. Abbas be granted custody, specifically the hostility between her and Ms. Al-Shami and its relevance to M.A.’s well-being.
ii. Analysis
29Having reviewed the evidence and the trial judge’s Order, I find that the custody decision was amply supported by the evidence at trial. In his Reasons for Judgment, the trial judge correctly considered the best interests of M.A. in ordering that these were best served by her remaining in the care of Ms. Albohamra. The evidence that supports such a finding includes the following:
a. Both Mr. Abbas and Ms. Albohamra requested that they be awarded sole custody of M.A., not joint custody;
b. Mr. Abbas and Ms. Albohamra never cohabited;
c. Since birth, M.A. remained in the care of her mother, Ms. Albohamra;
d. M.A. was settled and doing well in the custody of Ms. Albohamra at the time of trial, a fact that was not disputed by Mr. Abbas;
e. Mr. Abbas’ availability to care for M.A. was restricted due to his work schedule. He testified that he does not have much free time because of his business responsibilities;
f. Although Mr. Abbas claimed to want more time with M.A., the trial judge observed that despite having the opportunity to do so, Mr. Abbas had not previously asked Ms. Albohamra for any expansion of his access time with M.A. At trial, he testified that he had not seen M.A. in approximately three to four months. When he did spend time with M.A., the visits would last approximately two to three hours;
g. At no time did Mr. Abbas’ wife Ms. Al-Shami approve of his concurrent religious marriage to Ms. Albohamra. The evidence demonstrated that the conflict between Ms. Al-Shami and Ms. Albohamra had manifested in public and in the presence of M.A.;
h. Ms. Al-Shami was a key part of Mr. Abbas’ plan of care for his daughter. Due to Mr. Abbas’ schedule, if M.A. were to reside primarily with her father, much of her care would be the responsibility of Ms. Al-Shami.
30In declining to order joint custody, the evidence supported the trial judge’s concerns regarding the love, affection and emotional ties between M.A. and other members of her family and persons who would be involved in her care and upbringing. The evidence supported his conclusion that the hostility between Ms. Al-Shami and Ms. Albohamra must be considered in arriving at a plan that would ensure M.A.’s well-being.
31Specifically, the evidence supported the trial judge’s finding that it was understandable for Ms. Albohamra to have concerns about how M.A.’s emotional well-being might be affected given that Ms. Al-Shami would most likely be caring for M.A. due to Mr. Abbas’ work commitments. I also find that the trial judge did not err in giving weight to the verbal altercation between Ms. Al-Shami and Ms. Albohamra. This factor was appropriately considered as part of his analysis of the best interests of M.A.
32Further, in awarding sole decision-making authority to mother, the trial judge did not err in considering the inability of the parties to engage in joint decision-making regarding their daughter. He correctly observed that Ms. Albohamra had been the sole decision maker for M.A. since she was born. She has scheduled her doctor’s appointments and arranged for her educational development. The trial judge also observed that Mr. Abbas has not contributed to the decision-making with the same in-depth focus as Ms. Albohamra.
33The trial judge also noted that there was nothing that would have impeded the father from participating in the “heavy lifting” of caring for M.A., but that Mr. Abbas had not done so. The trial judge was entitled to consider evidence of the extensive time spent by Mr. Abbas at his work, the evidence of the priority given by him to Ms. Al-Shami, and to participating with her in raising their older children from that marriage. These factors, combined with the evidence of ongoing hostility between Ms. Al-Shami and Ms. Albohamra, supported his conclusion that the best interests of M.A. were met by making a sole custody order in favour of Ms. Albohamra, with access to Mr. Abbas.
34Therefore, I find that the trial judge gave appropriate consideration to allocation of decision-making authority as part of M.A.’s care. The evidence supported his decision not to make a joint custody award. He made no reversible error in this regard.
35I also find that the trial judge did not disregard the principle of maximum contact as argued by Mr Abbas. The evidence, and the trial judge’s findings, are consistent with Mr. Abbas’ assertion that it is important for M.A. to have a relationship with him.
36The position of Ms. Albohamra at trial supported M.A. having time with her father, consistent with the principle of maximum contact. The trial judge observed that Ms. Albohamra was more prepared than Mr. Abbas to develop and nurture a healthy relationship between M.A. and her father. Ms. Albohamra testified, for example, that she keeps a photo of Mr. Abbas beside M.A.’s bedside, and that each morning, they both say hello to him as part of their morning ritual.
37Further, I find that the evidence as a whole supported the trial judge’s finding that Ms. Albohamra was more prepared than Mr. Abbas to support such maximum contact with the other parent as is in M.A.’s best interests.
38For the reasons above, I conclude that the trial judge committed no reviewable error in awarding sole custody of M.A. to Ms. Albohamra. I dismiss this ground of appeal.
Issue 2: Did the Trial Judge Err in His Determination of the Quantum of Child Support?
39The threshold issue with respect to child support is whether it was open to the trial judge to go beyond Mr. Abbas’ T4 reported income of $105,000 to impute a higher income of $420,000 to him. This issue can be considered through the determination of two sub-issues: 1) whether the trial judge erred in finding that there was a basis to impute income to Mr. Abbas; and 2) having done so, whether he erred in arriving at his determination of the specific quantum of $420,000 imputed.
40As described in more detail below, Mr. Abbas argues on appeal that there was no basis to impute income. Ms. Albohamra agrees with the trial judge that imputation was appropriate, but argues on cross-appeal that the amount imputed should have been much higher.
Issue 2(a): Did the Trial Judge Err in Finding That There Was a Basis to Impute Income to Mr. Abbas?
41At trial, Mr. Abbas took the position that he should be ordered to pay child support based on an income of approximately $105,000. In support of his position, he pointed to his last T4 statement, issued by his company to him, which stated that this was his approximate income. However, the trial judge imputed additional income to Mr. Abbas for the purpose of awarding child support for M.A.
i. Position of the Parties
42On appeal, Mr. Abbas argues that there was no evidence whatsoever to support the imputation of income, and he neither gave nor withheld evidence to support an imputation of higher income than that which was reported on his T4. He submits that he responded to all requests for financial information made by Ms. Albohamra and that there was no evidence to show that there was more money available to him than that which was reported. He contends that the fact that he accumulated a large home and some vehicles is too weak to impute an income of approximately four times the amount that he had reported.
43On cross-appeal, Ms. Albohamra submits that the trial judge did not err in finding that there was a basis to impute income to Mr. Abbas.
ii. The Law
44The Court of Appeal for Ontario has repeatedly emphasized that the most basic, foundational obligation on both parties in family law matters is to fully disclose their financial information. The requirement is immediate, ongoing, and automatic, and should not require court orders.
45In Roberts v. Roberts, 2015 ONCA 450, the court lists some of the adverse consequences for the parties and the administration of justice when this obligation is not fulfilled:
The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing.
Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts on the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled.
Financial disclosure is automatic. It should not require court orders – let alone three – to obtain production.
(Roberts at paras. 11-13)
46Section 19(1)(f) of the Child Support Guidelines, O. Reg. 391/97, as amended, also states that the court may impute income to a parent or spouse if the parent or spouse has failed to provide income information when under an obligation to do so.
47Where the asserted income of a party is inadequate to explain expenditures of that party found on the evidence, imputation of income may be appropriate. A payor’s lifestyle will often be relevant to whether the court may impute income: Bak v. Dobell, 2007 ONCA 304, at para. 41. Lifestyle is therefore evidence from which an inference may be drawn that the payor has undisclosed income. In such cases, additional income may be imputed to that payor for the purpose of determining child support: Bak, at para. 43.
iii. Analysis
48At paragraphs 190 to 195 of his Reasons for Judgment, the trial judge referenced his reasons for imputing income to Mr. Abbas. He found that Mr. Abbas’ lifestyle and his ability to maintain this lifestyle were the main factors in imputing an income to him greater than what he declared on his financial statement. I agree with the trial judge’s finding on this point. I find that the evidence on the record supported his imputation of income to Mr. Abbas.
49In particular, the following factors support imputation of income to Mr. Abbas:
a) During the parties’ relationship, Mr. Abbas paid $6,450 per month to Ms. Albohamra to support her and M.A. He also paid for Ms. Albohamra, her older children, and M.A. to travel internationally.
b) While Mr. Abbas was making those monthly payments toward Ms. Albohamra’s expenses, he was also supporting his wife Ms. Al-Shami and his other children.
c) The evidence did not support a finding that during the years he supported Ms. Albohamra, Mr Abbas’ own standard of living declined, or that he fell into debt in order to support the households of both of his wives.
d) Mr. Abbas testified regarding his lifestyle:
i. That he lives in a 5,600 square foot home with three levels, four bedrooms, a walk-out basement and a swimming pool. This property is situated on a river, overlooks a golf course, and was listed on his financial statement at $1,600,000;
ii. That he owns a second property from which he derives rental income. This property was listed on his financial statement at $450,000;
iii. That he owns significant RRSPs listed on his financial statement at $280,000;
iv. That he owns exotic cars worth approximately $90,000; and
v. That the total value of all property owned is $2,780,000 as outlined on his financial statement.
e) Mr. Abbas confirmed that he is the sole owner of a business which has been in operation for more than 30 years and employs 230 employees.
f) There is no explanation for how, on an asserted income of $105,000, Mr. Abbas could afford the payments to Ms. Albohamra in addition to supporting Ms. Al-Shami and staying on top of his other expenses.
g) In cross-examination, Mr. Abbas refused to explain the revenues of his company and how he determines his own salary.
50On the last point, my review of the evidence leads me to agree with the trial judge that the questions put to Mr. Abbas regarding his income and general ability to earn did not elicit answers to help the court reconcile his low reported business income with the expenditures documented elsewhere in the evidence. The trial judge also noted that he received no financial statements of Mr. Abbas’ business, owned solely by him, nor any evidence regarding its gross revenues or operating costs.
51In this case, a review of the transcript confirms the reluctance by Mr. Abbas to answer questions relevant to a determination of his income. For example, on cross-examination, Mr. Abbas had the following exchange with Ms. Albohamra’s counsel:
Q. So, are you the President and CEO of Yaya Foods Corporation?
A. Yes.
Q. And can you tell me what the revenues were in 2017 for Yaya Foods?
A. No.
Q. Can you tell me how you - you’ve indicated – can you tell me how you determine your salary from Yaya Foods?
A. I won’t tell you.
THE COURT: Sorry?
MR. ABBAS: I won’t answer that question because she is going into my personal thing.
52In reviewing the evidence, I agree with the trial judge there was a significant discrepancy between Mr. Abbas’ declared income, his lifestyle and his expenditures. When such a discrepancy is present, the onus is on the individual purporting their income to be a certain amount to explain that difference. However, Mr. Abbas gave no explanation and provided no evidence for this significant discrepancy.
53In these circumstances, it does not lie with Mr. Abbas on appeal to object to the imputation of income to him. It was Mr. Abbas’ strategic decision not to provide the basic foundational financial disclosure required of a family law litigant in his circumstances: that is, someone who is the sole owner of a business from which his income is derived. Having failed to produce this relevant information in advance, and further refusing to provide it when asked in cross-examination, Mr. Abbas left the court with an undesirable paucity of detail with which to identify his true income.
54Further, Mr. Abbas had an obligation to disclose all information relevant to a determination of his income. He cannot resist an imputation of income by arguing that the recipient did not ask for more financial information where his own disclosure did not reach even the automatic threshold of the annual financial statements of his solely-owned business. This court has held that the payor parent cannot simply make bald assertions regarding their financial circumstances in hopes that the recipient parent will not uncover evidence to support the imputation of income: Crowe v. McIntyre, 2014 ONSC 7106, at para. 30.
55The trial judge was clearly live to this issue as he noted that the court received no evidence of Mr. Abbas’ company’s gross earnings and operating costs. It was not sufficient for Mr. Abbas to state in the witness box that his company made no money, and to refuse to answer questions regarding his income and his company’s revenue because he viewed it as “private” information. Family law adjudication necessarily involves legally mandated inquiry into “private” dimensions of parties’ lives.
56Further, as noted in Bak, where the asserted income of a party is inadequate to explain the lifestyle and expenditures found on the evidence, imputation of income may be appropriate: para. 41. Here, Mr. Abbas’ asserted income of $105,000 does not adequately explain his significant expenses and luxurious lifestyle as revealed on the evidence. Since Mr. Abbas failed to provide the particulars of his company’s revenue and his income as he was required to do, it was open to the trial judge to draw from the evidence and make the inferences that he did in determining that there was a basis to impute income to Mr. Abbas.
57In summary, having found that Mr. Abbas was not forthcoming in his testimony, failed to provide basic financial disclosure, and did not explain the significant gap between his reported income and his expenditures found elsewhere in the evidence, it was open to the trial judge to impute income. His analysis in this regard was reasonable and he committed no reviewable error in reaching his decision to impute income to Mr. Abbas.
Issue 2(b): Did The trial judge Err in His Determination of the Quantum of Income to be Imputed to Mr. Abbas?
58After determining that there was a basis to impute income to Mr. Abbas for the purpose of determining child support, the trial judge imputed an income of $420,000.
59He did so by considering the following. He found that in addition to his regular expenses, Mr. Abbas willingly paid a significant number of Ms. Albohamra’s expenses, including support for M.A. once she was born, that amounted to $6,450 per month. He paid this amount over a period of five years. This was not disputed by Mr. Abbas.
60The trial judge calculated that such a monthly payment, if paid for one child per the Ontario Child Support Guidelines, would correspond to a payor’s income of $850,000. The trial judge considered that some of the amount paid to Ms. Albohamra during their relationship, was for her expenditures as well, not solely for M.A. He therefore divided $6,450 in half on the basis that it was a combination of payments to mother and to child during the relationship. Half of that amount equaled $3,225. Using the same method above, the trial judge found that a monthly payment of $3,225 for one child, matched to the Child Support Guidelines, would correspond to a payor’s income of $420,000.
61Following this analysis, the trial judge then imputed an income of $420,000 to Mr. Abbas for the purpose of determining the quantum and arrears of child support.
i. Position of the Parties
62On appeal, Mr. Abbas argues that it was an error for the trial judge to essentially guess an income to impute to him. Mr. Abbas submits that the imputation of income at $420,000 is too high and constitutes a palpable and overriding error, is manifestly unfair, and is not supported by the evidence.
63On cross-appeal, Ms. Albohamra submits that the trial judge did not err in finding that there was a basis to impute income to Mr. Abbas, but that he did err in imputing an income of $420,000. It is her position that his income is much higher than that amount.
64Ms. Albohamra submits that the trial judge disregarded the fact that Mr. Abbas provided inconsistent information about his business and did not address the income that she alleges he earned from other sources. She submits that Mr. Abbas did not provide adequate and complete responses with respect to his corporate structure, revenue and expenses, and refused to answer questions on his salary, wages, management fees or other payments or benefits. She argues that the trial judge did not give weight to Mr. Abbas’ refusal to provide complete and timely financial disclosure, and erred in failing to draw an adverse inference against him.
65Further, Ms. Albohamra submits that the trial judge erred in dividing Mr. Abbas’ voluntary payments in half as there was no evidence to suggest that half of the money paid by Mr. Abbas to Ms. Albohamra was for M.A. and the other half was for Ms. Albohamra. The treatment of the voluntary payments was therefore arbitrary and not supported by the facts and legal principles. She therefore requests that an income of $865,000 be imputed to Mr. Abbas.
ii. The Law
66Regardless of the basis upon which income is imputed, the amount of income that the court imputes to a party is a matter of discretion: Crowe, at para. 29. However, the ability of a court to impute income is not an invitation to arbitrarily select an amount as imputed income: Drygala v. Pauli (2002), 2002 41868 (ON CA), 61 O.R. (3d) 711 (C.A.), at para. 44. The primary limitation on the court’s discretion is that there must be some basis on the evidence for the amount that the court has chosen to impute: Crowe, at para. 29. There must be a rational basis underlying the selection of a figure: Drygala, at para. 44.
iii. Analysis
67As noted above, I find that the trial judge committed no reviewable error in determining that there was a basis to impute income to Mr. Abbas for the purpose of determining child support. I also find, for the reasons that follow, that the trial judge committed no reviewable error in imputing an income of $420,000 to Mr. Abbas.
68The amount of income imputed to a payor is within the court’s discretion. However, as noted, there must be some rational basis on the evidence that supports the selection of the figure to be imputed.
69In this case, on the basis of the factors listed at paragraph 49 above, it was open to the trial judge to consider the totality of the evidence, including the monthly payment to Ms. Albohamras, in his income imputation analysis.
70It was also open to the trial judge to accept that half of the monthly payments made by Mr. Abbas in the amount of $6,450 was for the purpose of supporting Ms. Albohamra when they were still together, and when the relationship was amicable between them. The evidence showed, for example, that the monthly payments were used by Ms. Albohamra to pay for rent, utilities, taxes and use of a vehicle. It is clear that not all of the funds provided by Mr. Abbas were strictly for M.A. This is further supported by the observation that the payments started several years prior to the birth of M.A. Accordingly, I find that it was reasonable for the trial judge to divide Mr. Abbas’ monthly payments in half to account for the portion that constituted child support for M.A.
71Using an alternative method of calculation, one reaches a conclusion similar to that of the trial judge. That is, if one adds Mr. Abbas’ monthly expenses, including what was declared on his financial statement and the undisputed payments he was making to Mr. Albohamra, and grosses-up to find the corresponding annual income a payor would need to maintain such expenses, the amount is approximately $380,000. An income of $380,000, under the Child Support Guidelines, corresponds with support for one child of $2,955 per month.
72The trial judge ordered a child support payment of $3,225. The difference between these amounts is sufficiently modest that I conclude the amount ordered was within the trial judge’s discretion to award, based on all the evidence.
73It may have been preferable for the trial judge to base the imputed income for Mr. Abbas on a quantification of expenses he has managed to maintain and accounting for tax, rather than inferring an income only on the basis of the support payments made. However, in this case I find that this would not have lead to a materially different income than the approach that he used. Using an expense-based approach, a similar finding is reached regarding the appropriate imputed income. By considering the evidence of Mr. Abbas’ income declared on his financial statement, the undisputed payments he was making to Ms. Albohamra, and allowing for a gross up for taxes, I can likewise reach a conclusion that the amount of income imputed to Mr. Abbas was grounded in the evidence and was not arbitrarily selected.
74As noted earlier, the amount of income imputed to a payor is within the court’s discretion. Accordingly, I find that the trial judge committed no reviewable error in the amount of income he imputed to Mr. Abbas and thus his determination of the quantum of child support.
75In conclusion regarding child support, I find that the trial judge erred neither in imputing income to Mr. Abbas, nor in imputing the specific annual income of $420,000 and the corresponding table amount of child support. The related grounds of appeal and cross-appeal are therefore dismissed.
Issue 3: What, If Any Adjustment to Mr. Abbas’ Child Support Arrears Should Be Made?
76Given my analysis and conclusion on issue 2 above, it is not necessary to address this issue. I have found that the trial judge committed no reviewable error in determining the quantum of child support
77Accordingly, no adjustment to Mr. Abbas’ arrears of child support is required. This ground of appeal is dismissed.
Issue 4: Did The trial judge Err in Refusing to Order a Travel Restriction on Ms. Albohamra?
78At trial, Mr. Abbas sought an order prohibiting Ms. Albohamra from travelling to Iraq with M.A., a country to which both parties have ties. He testified that he was concerned that Ms. Albohamra would bring M.A. to Iraq to visit her family and would not return.
79The trial judge declined to award such an order. He held that Ms. Albohamra shall be able to obtain and renew M.A.’s passport without the consent of Mr. Abbas, and that she may hold M.A.’s identification documents including her passport. He also held that if either parent proposes international travel outside of the USA or Caribbean with M.A., they shall provide the other party with the full particulars of the intended travel within 45 days of departure.
i. Position of the Parties
80Mr. Abbas requests that while M.A. is in his custody, that he be in control of her passport. He argues that there is ample reason to ensure M.A.’s passport is controlled to eliminate Ms. Albohamra’s flight risk with the child. Mr. Abbas contends that there is no harm in implementing passport control, and to order otherwise is to “flirt unnecessarily with the risk of flight”. He submits that the trial judge’s failure to order passport control for M.A.’s passport is therefore unreasonable, unnecessary, and constitutes an overriding error.
81Ms. Albohamra argues that the trial judge did not err in finding that she was not a flight risk. She contends that there is no basis for Mr. Abbas to seek passport control and that his submissions on this are based on what is more convenient to him and not on a genuine concern for M.A.’s well-being.
ii. Analysis
82In his factum on appeal, Mr. Abbas described Ms. Albohamra as a “flight risk”. In his argument before me, Mr. Abbas’ counsel emphasized a different concern, namely that Iraq is a dangerous country and his daughter should not travel there with either parent until she is older.
83The undisputed evidence is that Mr. Abbas paid for Ms. Albohamra, their daughter M.A., and Ms. Albohamra’s other children to travel to and from Iraq in 2013 and 2016. The trip in 2013 was when M.A. was under one year old. On both occasions, Mr. Abbas knew of and paid for the trip. On both trips, Ms. Albohamra returned to Canada with the children without incident.
84The evidence does not support a finding that Ms. Albohamra is a flight risk. The trial judge did not err in declining to order a restriction on Ms. Albohamra’s travel with M.A. Accordingly, this ground of appeal is dismissed.
ORDER
85After reviewing the material filed and considering the submissions of counsel, and for the reasons outlined above, both the appeal and cross-appeal are dismissed.
COSTS
86Ms. Albohamra was the more successful party as the appeal was dismissed in full. She was unsuccessful only on the cross-appeal by which she sought to increase the amount of income imputed to Mr. Abbas. Ms. Albohamra is presumptively entitled to her costs on this appeal.
87At the conclusion of the appeal, Ms. Albohamra submitted a Bill of Costs to the court. Counsel for Mr. Abbas asked for time to reply to Ms. Albohamra’s costs submissions in the event that his client was unsuccessful on the appeal. Mr. Abbas shall therefore have seven days from receipt of this decision to serve and file his response to Ms. Albohamra’s costs submissions. His response is not to exceed three pages, double spaced. There will be no reply submissions without leave.
McSweeney J.
Released: January 28, 2020
