COURT FILE NO.: FC-19-2228

DATE: 2020/11/18

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kristie Lynn Ottway, Applicant

AND

Hamidreza Assadzadeh, Respondent

BEFORE: Justice Engelking

COUNSEL: Russel A. Molot, for the Applicant

John Summers, for the Respondent

HEARD: August 25, 2020

ENDORSEMENT

[1] This is a Motion brought by the Applicant, Ms. Ottway, seeking a temporary order for sole custody of the parties’ child, Ryan Ottway-Assad, child support of $4,179 per month payable by Mr. Assadzadeh on an imputed income of $550,000 per year, or in the alternative $3,763 per month on an income of $425,309 per year (based on Mr. Assadzadeh’s reported income from 2018), both retroactive and on-going, and a proportionate contribution to Ryan’s daycare by Mr. Assadzadeh. While Ms. Ottway pled for a temporary order for spousal support in her Notice of Motion, she indicated in her reply affidavit sworn on August 20, 2020 and in her submissions that she would not be pursuing it at the hearing of the motion.

[2] Mr. Assadzadeh opposes Ms. Ottway’s motion. His position is not only that income should not be imputed to him for child support purposes, but that he would be subject to hardship even if he is required to pay child support for Ryan based on his actual 2018 reported income. Additionally, Mr. Assadzadeh seeks a specific order of costs for having to prepare for Ms. Ottway’s now abandoned request for an order of temporary spousal support. He also requests a specific access order to Ryan.

Background Facts

[3] The parties met in or about April of 2017. A relationship commenced, the nature of which is in dispute. Ms. Ottway asserts that although Mr. Assadzadeh always kept his own home, it was a relationship of some permanence and that the parties separated on December 31, 2018, when Mr. Assadzadeh was charged with three counts of assault against Ms. Ottway. Mr. Assadzadeh asserts that they were, at best, in a dating relationship which was “off and on” and ended around late 2017, except that they had a sexual encounter in early 2018 which resulted in Ms. Ottway’s pregnancy with Ryan. Mr. Assadzadeh denies being in a relationship of some permanence and certainly denies having any in person contact with Ms. Ottway after the December 2018 charges were laid.

[4] Regardless, in July of 2018, Mr. Assadzadeh bought a home at 210 Keyrock Drive in Kanata, Ontario, into which Ms. Ottway and her daughter, Kallie, aged 7, moved the same month. Mr. Assadzadeh’s evidence is that Ms. Ottway had agreed to pay rent for this residence, which he valued at approximately $2,400 per month. Ms. Ottway’s evidence is that she was never expected to pay rent; rather, Mr. Assadzadeh had promised to take care of her and his child if she moved close to him. According to her, Mr. Assadzadeh was to make the mortgage and property tax payments, and she was to pay for the utilities. Regardless of which version is the correct one, the evidence confirms that Ms. Ottway did not pay any rent between July and December of 2018. She then paid $1,500 per month to Mr. Assadzadeh for rent for the months of January 2019 to July 2019 inclusive, after which she again stopped paying rent.

[5] In October of 2019, Mr. Assadzadeh pled guilty to one count of assault for a November 27, 2018 incident and received six months probation and a conditional discharge. The remaining two charges of assault were withdrawn.

[6] Ms. Ottway and the two children left the home on March 15, 2020 and moved to another location in Kanata. From August of 2019 to March of 2020, Ms. Ottway did not pay anything in rent to Mr. Assadzadeh. He continued to pay the mortgage and property taxes on the home during this period.

[7] Mr. Assadzadeh made payments of $2,000 per month to Ms. Ottway in support of Ryan from January to August 2019 inclusive. He then paid to her $2,600 per month from September to December 2019 inclusive. Ms. Ottway’s bank records demonstrate that he made an additional payment of $1,200 in January of 2020. He did not make any payments from then until July of 2020, when Mr. Assadzadeh paid Ms. Ottway $1,000 on July 3, 2020 and $1,500 on August 7, 2020. Mr. Assadzadeh additionally continued to pay the mortgage and property taxes on 210 Keyrock Drive for the entire period that Ms. Ottway resided there. Since her departure, Mr. Assadzadeh has listed and sold the property.

[8] Mr. Assadzadeh was previously married for 12 years. Two children, Daniel and Vanessa, were born of the marriage. On May 5, 2016, Mr. Justice Labrosse granted an order on consent of Mr. Assadzadeh and his former spouse which deemed Mr. Assadzadeh’s annual income to be $550,000 and his former spouse’s annual income to be $35,000 for support purposes. Pursuant to the order, Mr. Assadzadeh is required to pay his former spouse $6,572 per month in child support and $12,085 per month in spousal support.

[9] Mr. Assadzadeh is a dentist. He has his own practice in Kanata, which he operates under two separate corporations, namely “Dr. H. Assadzadeh Dentistry Professional Corporation” (hereinafter referred to a “ProCorp”) and “2059661 Ontario Inc.” (hereinafter referred to as “9661”). Mr. Assadzadeh is the sole shareholder, officer and director of both corporations.

[10] Mr. Assadzadeh’s reported income in recent years has been as follows:

• 2016 – $850,065.62, $265,065.62 of which was employment income and $585,000 in eligible and other than eligible dividends;

• 2017 – $693,651.53, $252,359.58 of which was employment income, $439,920 in eligible and other than eligible dividends and $2,371 in interest and other investment income; and,

• 2018 – $528,012.52, $250,231.26 of which was employment income, $274,920 in eligible and other than eligible dividends and $2,861.26 in interest and other investment income.

[11] Mr. Assadzadeh did not provide the court with any documentation in support of his 2019 income or his current income, despite that he asserted that his business was closed completely for three months and his only income was CERB. He deposed that his practice has only recently started to reopen and that his volume of expected patients on a go forward basis may be affected. Mr. Assadzadeh suspects, but again provided no documentary evidence to support, that his income may be “significantly” lower in 2020. Mr. Assadzadeh appended to his Factum an expert report providing an opinion as to his available income for support purposes, however, in my view it is not properly before the court and I did not consider it.

Positions of the Parties

[12] Ms. Ottway asserts that as the sole shareholder and director of his corporations, Mr. Assadzadeh can pay himself whatever he pleases, both in salary and via dividends. Her position is that Mr. Assadzadeh can access the retained earnings of his corporations to pay himself dividends; she identified that 9661 had retained earnings of $1,371,494 at the end of 2018. Ms. Ottway submitted that certain of Mr. Assadzadeh’s claimed expenses should also be added back into his income for support. Primarily, however, Ms. Ottway appeared to be of the view that Mr. Assadzadeh’s income should be imputed to be $550,000 per year because that is what he agreed it was for the purposes of support in Justice Labrosse’s consent order of May 5, 2016. She seeks support retroactive to Ryan’s birth. She also seeks an order of limited daytime access by Mr. Assadzadeh to Ryan and interim custody of the child.

[13] Mr. Assadzadeh indicated that the dividends paid to himself were high in 2016 and 2017 because of the equalization and support obligations he had to his former spouse at the dissolution of their marriage. He asserts, moreover, that the retained earnings of his corporations are required to keep his business afloat, particularly in times like these, and that Ms. Ottway’s focus on the retained earnings of 9661, which were actually for 2017, did not account for ProCorp’s deficits in 2017 and 2018. He disputes that his income should be imputed to $550,000 per year for support purposes. He also takes the position that paying table support based on an annual income of $425,309 would cause him hardship, based primarily on his support obligations to his first wife and children. Mr. Assadzadeh’s position with respect to parenting time with Ryan is that he has always been an appropriate and dedicated father to his elder children, and that there is no reason he could not be having time with Ryan which includes overnight visits.

Analysis

[14] Ms. Ottway seeks support retroactive to Ryan’s birth. However, there is a dispute between the parties as to the nature of the payments Mr. Assadzadeh was making for the mortgage and property taxes at 210 Keyrock Drive. Mr. Assadzadeh submits that these constituted support. If that argument is accepted, then Mr. Assadzadeh was at times paying a total amount of monthly support to Ms. Ottway either greater than or similar to that requested, but for between January and July of 2019, when she was paying him $1,500 per month in rent. Although Ms. Ottway disputes that the payments towards the property should be characterized as support, her evidence was that the parties agreed that Mr. Assadzadeh would be responsible for the mortgage and property tax payments, notwithstanding that he did not live at 210 Keyrock Drive and continued to maintain his own residence.

[15] As I have indicated above, Ms. Ottway did not pursue her temporary spousal support claim at the motion, and the nature of the relationship remains unclear. If the parties were in a “relationship of some permanence” and Mr. Assadzadeh was indeed supporting the family, support may only be payable as of an established separation date, which also remains unclear to me. Additionally, after all of the evidence is presented at trial, the payments Mr. Assadzadeh was making in terms of maintaining the home for Ms. Ottway and Ryan may be characterized as some form of support. Given that this is the case, it seems to me that the most appropriate date for the commencement of an order for temporary child support is April 1, 2020, the first month during which Ms. Ottway ceased to reside in 210 Keyrock Drive. However, this is premised on the fact that Mr. Assadzadeh was paying to Ms. Ottway at least $2,000 per month in support. The evidence demonstrates that this was not the case for January, February and March of 2020. Nor was it the case for January to July of 2019 inclusive when Ms. Ottway was paying back to Mr. Assadzadeh $1,500 per month in rent. Therefore, Mr. Assadzadeh will be required to pay Ms. Ottway $800 for the month of January 2020 and $2,000 for each of the months of February and March of 2020. Ms. Ottway should also be recompensated for the $1,500 she paid to Mr. Assadzadeh for January through July of 2019. This is, of course, without prejudice to Ms. Ottway to pursue her claim for an order for child support retroactive to Ryan’s birth or Mr. Assadzadeh to claim that no such support is owing based on the payments he has already made.

[16] Although Ms. Ottway seeks to have the court impute income to Mr. Assadzadeh of $550,000 per annum, she does so mostly on the basis that it was deemed so in the context of the dissolution of Mr. Assadzadeh’s marriage with his previous spouse. The trouble with this submission is that the court does not know on what basis Mr. Assadzadeh and his former wife were able to come to that figure, nor to what degree it may have been affected by being part of a more comprehensive settlement dealing with equalization and the division of net family properties. The court would, in my view, have to hear evidence to determine whether there are underlying facts upon which an imputation of income could be anchored pursuant to s. 19 of the Federal Child Support Guidelines. In this case, that may more properly be done at trial, including possibly with the benefit of expert evidence as to the value of Mr. Assadzadeh’s income for support purposes. I am of the view that, on an interim basis, the more appropriate approach is to base Mr. Assadzadeh’s support obligation on his most recently demonstrated income, which is that of 2018. When the tax treatment of Mr. Assadzadeh’s dividends are taken into consideration, his 2018 income for support purposes becomes $492,153, which results in a table amount of support for one child of $3,763 per month.

[17] Mr. Assadzadeh submits that due to the child and spousal support obligations he has to his former wife and elder children, a table amount of child support payable for Ryan would cause him hardship. However, Mr. Assadzadeh made this argument in the face of having paid approximately $2,000 per month to Ms. Ottway, as well as paying the mortgage and property tax payments on 210 Keyrock Drive for many months. He has since sold Keyrock Drive and is, therefore, no longer responsible for the monthly payments associated with its mortgage and taxes. In addition to whatever profit he may have made from the sale of the property, he also presumably has access to funds he would have otherwise been directing to it. Additionally, while Mr. Assadzadeh claimed undue hardship, he failed to provide any current financial information/documentation on the motion which would support that claim. I do not accept that paying a table amount of child support for Ryan would unreasonable at this time.

[18] Ms. Ottway also seeks an interim order for a proportionate sharing of section 7 or extraordinary expenses for Ryan. She indicates that the only such expense currently is for Ryan to attend daycare three days per week commencing September 3, 2020 at a cost of $940 per month. Ms. Ottway obtained a new job GridWay Computing Corporation as of March 2020 at $60,000 per year. However, Ms. Ottway was without an income for the first three months of the year and her total income for 2020 will be $40,000. She requires daycare for Ryan, and Mr. Assadzadeh should be paying his proportional share of those expenses.

[19] With respect to the issue of custody of Ryan, I see no need to make an order for same on a temporary basis. Ryan’s primary residence has clearly been with Ms. Ottway since his birth and it shall remain so. However, the evidence is conflicting with respect to the degree to which Mr. Assadzadeh has played a role in the care of Ryan, or indeed in that of his older children. Further evidence is required in order for the court to be in a position to make a determination on the issue of custody in the best interests of Ryan.

[20] Mr. Assadzadeh seeks an order of specified overnight access to Ryan every second weekend from Saturday morning to Sunday evening. Ms. Ottway does not contest that such a regime may be appropriate, but she seeks an order that Mr. Assadzadeh be required to attend for a parenting course and an anger management course before such a regime be put in place. In the interim, she seeks that an order requiring Mr. Assadzadeh to exercise his parenting time in the home of his mother (as he has been doing) be put in place. Ms. Ottway’s evidence is that Mr. Assadzadeh is free to have time with Ryan at the home of the paternal grandmother pretty much upon request, and that Mr. Assadzadeh is actually failing to fully utilize the time that is available to him now. She indicates that Mr. Assadzadeh will only visit with Ryan for a few hours and then leave him in the care of the paternal grandmother. Mr. Assadzadeh indicates that he would like to have Ryan at his own home overnight every second weekend.

[21] Ms. Ottway’s concerns for Ryan are based on what she perceives to be a problem with Mr. Assadzadeh managing his anger and acting out aggressively or violently, as she alleges he has done with her. While Mr. Assadzadeh denies the particulars of Ms. Ottway’s allegations of physical abuse towards her, he nevertheless pled guilty to one charge of assault on her. I can only conclude that there has been some violence perpetrated on Ms. Ottway by Mr. Assadzadeh in the relationship. According to Ms. Ottway’s evidence, which Mr. Assadzadeh denies, one incident of aggression occurred while she was holding Ryan in her arms. Having said that, Ms. Ottway also appears to have engaged in some aggression during the relationship as she indicated in paragraph 4 of her reply affidavit sworn on August 20, 2020 that, in relation to holes in the walls and doors depicted in Mr. Assadzadeh’s materials and alleged to have been made by her, “those occurred during/after our fights, and not caused by me alone”. It is possible, as well, that both may have not strictly complied with the restraining order preventing Mr. Assadzadeh to have contact with Ms. Ottway after the charges were laid.

[22] Ms. Ottway refers in her reply affidavit to the Children’s Aid Society of Ottawa having been involved with the family as a result of the incident where Ryan was in her arms when Mr. Assadzadeh assaulted her, however, the Society does not appear to have remained involved or taken any position on Mr. Assadzadeh’s parenting time with Ryan. In submissions, the main focus of Ms. Ottway’s argument was that Mr. Assadzadeh does not have experience with toddlers, an argument which is refuted by Mr. Assadzadeh based on the fact that he has two grown children whom he jointly parented with his first wife.

[23] But for the alleged incident of violence in the presence of Ryan, and Ms. Ottway’s perception of Mr. Assadzadeh’s disinterest in Ryan, the court received little evidence from either party of any particulars of Mr. Assadzadeh’s care of Ryan. That he may not have participated fully in parenting a child of Ryan’s age previously, which is denied by him, should not preclude Mr. Assadzadeh from having a meaningful relationship with Ryan that is not dependant on the availability of Mr. Assadzadeh’s mother to facilitate it. That Mr. Assadzadeh has a meaningful and fulsome relationship with his older children, Daniel and Vanessa, whom he cares for about 40% of the time, is clear from both Ms. Ottway and Mr. Assadzadeh’s materials. It would be in Ryan’s best interests to have the same opportunity as his siblings to develop such a relationship with Mr. Assadzadeh. There shall, therefore be an order granting Mr. Assadzadeh parenting time with Ryan from Saturday at 9:00 a.m. to Sunday at 6:00 p.m. commencing on Saturday, November 21, 2020.

Order

[24] On a temporary basis, for the reasons outlined above, there shall be an order as follows:

1. The Applicant shall have primary residence of Ryan Ottway-Assad, born October 17, 2018;

2. The Respondent shall pay the Applicant the amount of $10,500, which is to recompensate her for $1,500 per month from January to July 2019 inclusive in support of Ryan;

3. The Respondent shall pay to the Applicant $800 in support of Ryan for the month of January 2020;

4. The Respondent shall pay to the Applicant $2,000 in support of Ryan for the months of February and March 2020;

5. Commencing April 1, 2020, the Respondent shall pay to the Applicant table support for one child of $3,763 per month on an annual income of $492,153 in support of Ryan;

6. Commencing September 1, 2020, the Respondent shall pay to the Applicant a proportionate share of section 7 expenses for Ryan based his annual income of $492,153 and the Applicant’s annual income of 40,000;

7. Commencing November 21, 2020, the Respondent shall have parenting time with Ryan every second Saturday from 9:00 a.m. to Sunday at 6:00 p.m.;

8. This order is without prejudice to the Applicant to pursue her claim for child support retroactive to Ryan’s birth or for a higher amount of child support based on an imputed income for the Respondent and to the Respondent to pursue his claim for a lower amount of child support retroactive to when he commenced paying support; and,

9. This order shall be enforced by the Family Responsibility Office (“FRO”) unless it is jointly withdrawn by the parties. The Respondent shall receive credit for $1,000 paid on July 3, 2020, $1,500 paid on August 7, 2020 and any amount demonstrably paid as support between August 7, 2020 and the present, and FRO shall make all necessary adjustments.

Costs

[25] Mr. Azzadzadeh specifically seeks an order for costs in relation to Ms. Ottway’s abandoned claim for an order for temporary spousal support. However, no bill of costs or offers to settle were provided in relation to this request. If the parties are unable to settle the issue of costs between them by December 1, 2020, then written submissions of no more than three double-spaced, typed pages along with bills of costs and offers to settle may be made to me at 10-day intervals and I will make an order. Mr. Azzadzadeh’s aforementioned claim may be included in those submissions.

Justice Engelking

Date: November 18, 2020

COURT FILE NO.: FC-19-2228

DATE: 2020/11/18

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Kristie Lynn Ottway, Applicant

AND

Hamidreza Assadzadeh, Respondent

BEFORE: Justice Engelking

COUNSEL: Russel A. Molot, for the Applicant

John Summers, for the Respondent

ENDORSEMENT

Engelking J.

Released: November 18, 2020