COURT FILE NO.: FS-18-91891-00
DATE: 2020 02 11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SAIMA SAEED
Applicant
Morgan Copeman, for the Applicant
- and -
SHERAZ KHALID
Respondent
No One Present, for the Respondent
HEARD: October 7, 2019, at Brampton
REASONS FOR JUDGMENT
Dennison J.
INTRODUCTION
[1] The parties married in 2009 and have two daughters. During most of their marriage, they resided in the United States. Mr. Khalid owned and operated several gas stations in Louisiana.
[2] In December 2015, Mr. Khalid suggested that Ms. Saeed take their two daughters on vacation to Pakistan. When Ms. Saeed tried to return to the United States, she was denied re-entry because her Green Card had expired. She had asked Mr. Khalid to renew her Green Card prior to leaving but he always delayed. After being stranded in Istanbul for two days, Ms. Saeed returned to Canada with their daughters because she is a Canadian citizen. Ms. Saeed and their two daughters remained in Canada. Mr. Khalid came to visit in January 2016 and then returned to the United States.
[3] Unbeknownst to Ms. Saeed, Mr. Khalid re-married. She learned of the marriage in September 2016. In July 2018, Ms. Saeed also learned that Mr. Khalid obtained a divorce from her in the United States on December 1, 2016, without her knowledge. Mr. Khalid has had little involvement with the children and essentially left Ms. Saeed on her own to raise their daughters since he returned to the United States.
[4] On March 27, 2018, Ms. Saeed brought an Application seeking sole custody of their two daughters, child support and spousal support. Mr. Khalid was served the material but did not file an Answer. He did not attend the Case Conference despite having notice of the date. He was ordered to provide financial disclosure and provided nothing of substance. Mr. Khalid was ultimately noted in default and the matter proceeded to an uncontested trial.
[5] The following issues need to be resolved at this uncontested trial:
Should Ms. Saeed be granted sole custody of the two children?
Should Mr. Khalid be granted access to the two children?
What income, if any, should be imputed to Mr. Khalid for the purpose of calculating child support?
Should Mr. Khalid pay retroactive child support?
Should Mr. Khalid pay section 7 expenses?
What costs, if any, should be awarded to Ms. Saeed?
[6] Ms. Saeed initially sought spousal support in her Application. She is no longer making a claim for spousal support because this court does not have jurisdiction to grant an order for spousal support where a foreign divorce was issued, even if it was without her knowledge.
BACKGROUND FACTS
The Marriage
[7] Ms. Saeed immigrated to Canada in May 2005. She was previously married and divorced on December 5, 2007. She has a son from her previous marriage. She obtained her Canadian Citizenship in 2012.
[8] On July 10, 2009, Ms. Saeed married Mr. Khalid in Toronto, Ontario. At the time they married, Mr. Khalid resided in Louisiana. Ms. Saeed stayed in Canada until their first child, Soha Sheraz, was born on June 25, 2010. Ms. Saeed and her daughter then moved to Louisiana.
[9] Ms. Saeed lived in Covington, Louisiana with Mr. Khalid until 2016. During that time, he owned and operated several gas stations in and around Covington. Their second daughter, Shanzea Sheraz Khalid, was born on February 18, 2014.
The Separation
[10] The parties separated in unusual circumstances. In December 2015, Mr. Khalid suggested that Ms. Saeed take the children to Pakistan for a vacation. She questioned Mr. Khalid about taking the trip because her United States Green Card had expired. He advised her to travel on her Canadian passport and that there would not be any issue with her traveling.
[11] Ms. Saeed stated that Mr. Khalid destroyed her Green Card during a previous argument over whether she could obtain her driver’s licence. Mr. Khalid refused to sign the necessary documents to renew her Green Card. Ms. Saeed stated that she received letters from United States Immigration and tried to raise the issue with Mr. Khalid, but he always delayed.
[12] When Ms. Saeed and their two daughters were returning from Pakistan, Ms. Saeed was denied re-entry into the United States because her Green Card was expired. She was stranded with their daughters in Istanbul for two days. Ms. Saeed and the two children flew to Toronto, Ontario and met Mr. Khalid.
[13] Once in Canada, Ms. Saeed, along with Mr. Khalid and the children, tried to re-enter the United States on another flight. Ms. Saeed was again denied re-entry to the United States. In January 2016, Mr. Khalid returned to the United States leaving Ms. Saeed and the two children in Toronto.
[14] Ms. Saeed stated that Mr. Khalid told her repeatedly that he was arranging for attorneys to help her return to the United States.
[15] Ms. Saeed stated that she discovered in September 2016 that Mr. Khalid had returned to Pakistan, re-married and brought his new wife to Louisiana. Ms. Saeed became aware of the marriage after acquaintances sent her photographs of the marriage ceremony.
[16] Mr. Khalid brought a divorce application in Louisiana, unbeknownst to Ms. Saeed. The divorce was issued on December 1, 2016. Ms. Saeed was not served with the application and did not learn that the divorce had been granted until July 2018. It appears from the divorce order filed with the court that a “curator” represented her. Ms. Saeed testified that she does not know this person and has never spoken to them.
[17] Ms. Saeed and their two children have remained in Canada since January 2016. Mr. Khalid continues to reside in the United States.
PRELIMINARY MATTER ON JURISDICTION TO PROCEED WITH AN UNCONTESTED TRIAL
Relevant Facts
[18] On March 27, 2018, Ms. Saeed filed an Application, Affidavit and Financial Statement. She sought sole custody, child support and spousal support from Mr. Khalid. All of these documents were served on Mr. Khalid on June 12, 2018, in the United States. Mr. Khalid did not file an Answer to the Application.
[19] Correspondence between counsel were made exhibits at trial. Mr. Khalid’s counsel contacted Ms. Saeed’s counsel in August 2018. In an email dated August 6, 2018, Mr. Khalid’s counsel suggested some terms for custody and access. The email also suggests that he made a payment of child support of $710.00 USD. On August 15, 2018, counsel for Ms. Saeed sent a follow-up email requesting detailed financial disclosure. Ms. Saeed’s counsel followed up again on November 23, 2018. This email indicated that if the financial disclosure was not received by November 30, 2018, Ms. Saeed would proceed to schedule a Case Conference. A further email was sent on December 14, 2018. No response was received.
[20] Ms. Saeed served Mr. Khalid with the Case Conference Brief on December 18, 2019. The Conference Notice was also served on Mr. Khalid on January 16, 2019.
[21] The Case Conference was heard before Price J. on January 31, 2019. Mr. Khalid failed to file a Case Conference Brief and failed to attend or send anyone on his behalf. Mr. Khalid was therefore noted in default. Price J. made an order that Mr. Khalid provide financial disclosure of his assets and income by February 28, 2019. This order was couriered to Mr. Khalid in the United States on February 1, 2019.
[22] Mr. Khalid emailed ten pages of disclosure to Ms. Saeed’s counsel on February 28, 2019. He made no further disclosure and has filed nothing further with the court.
[23] A Trial Management Conference was held on March 27, 2019. A half-day uncontested trial was set for October 7, 2019. Ms. Saeed did not serve Mr. Khalid with her trial materials.
Analysis
[24] I am satisfied that it is appropriate to proceed with this trial on an uncontested basis. Mr. Khalid has had ample opportunity to participate since being served with the Notice of Application dated March 27, 2018 but has chosen not to.
[25] If a respondent to an application fails to file an answer within 30 days, the court may proceed as if the respondent’s pleadings have been struck: Family Law Rules, O. Reg. 114/99, at Rule 10(5).
[26] As a result of failing to file a response, Mr. Khalid is not entitled to further notice of the steps in this case. He is not entitled to participate, and the court may deal with the case in his absence. A date may also be set for an uncontested trial: Family Law Rules, at Rule 1(8.4) and 10(5).
[27] Despite not filing an Answer, Mr. Khalid was still given ample opportunity to participate. He initially appeared to have counsel but did not provide the financial disclosure as requested and ceased communications with Ms. Saeed’s lawyer. Mr. Khalid was served with a Notice of Case Conference and chose not to participate. He was also provided a copy of Price J.’s order, which he essentially ignored.
[28] Mr. Khalid was well aware of the claims he was asked to meet. He was aware that Ms. Saeed claimed he earned $480,000.00. He was also aware that Ms. Saeed was seeking sole custody, supervised access and child support. Mr. Khalid failed to provide any meaningful response to Ms. Saeed’s claims.
[29] I am also satisfied that Mr. Khalid was not required to be served with the trial material in light of his failure to file an Answer to the Application and his noting in default: Family Law Rules, at Rule 1(1) and 1(8.4); Rules of Civil Procedure, R.R.O. 1990, Reg. 194, at Rule 19.02(3).
ISSUE #1: SHOULD MS. SAEED BE GRANTED SOLE CUSTODY OF THE TWO CHILDREN?
Relevant Facts
[30] Ms. Saeed testified that she has been the children’s primary caregiver since birth. She stated that she was responsible for all the children’s basic care and household responsibilities.
[31] Ms. Saeed travelled with the children to Pakistan. When she was denied re-entry into the United States, she returned to Canada in January 2016 with the children. Mr. Khalid came to see her and the children and promised that he would get a lawyer to fix her immigration problem.
[32] Mr. Khalid left the children with Ms. Saeed in Toronto in January 2016. The youngest daughter was two and the eldest was six. At first, Mr. Khalid came to visit every two to three weeks. He then stopped coming to visit. He also sent money on two or three earlier occasions of approximately $3,000.00.
[33] Mr. Khalid has not played an important role in raising the children since they have resided in Canada. He was not involved in choosing a school for their eldest daughter and has not been involved in seeing that their day-to-day needs are met.
[34] Since May 2016, Mr. Khalid has only seen the children once. In January 2017, he saw the children at Chucky Cheese. The next day they went to the Woodbine Mall.
[35] Mr. Khalid reached out to the children on two occasions: once in May/ June 2017, and again in mid-November 2018. Ms. Saeed stated that she facilitated Mr. Khalid’s contact with the children when he called. However, on both occasions he abruptly stopped communications without notice to her or the children a few weeks later. Ms. Saeed stated that this made the children very upset and confused.
[36] Ms. Saeed also testified that Mr. Khalid has sent the children extravagant gifts. He sent Soha a pink hoverboard and an iPad for her birthday and sent Shanzea a green electric children’s Jeep.
[37] Ms. Saeed testified that in January 2019, Mr. Khalid showed up at Ms. Saeed’s doorstep with his new wife without any notice to Ms. Saeed or the children. Ms. Saeed did not allow access with the children at that time because she did not feel comfortable allowing him into her home without any other adults present. At that time, he left a bag of designer clothing for the children.
[38] Ms. Saeed explained that if Mr. Khalid wished to see their daughters, he needed to show a willingness to rebuild a relationship first. She does not believe it is in the children’s best interests to have their father come in and out of their lives as it makes them feel confused and upset.
Analysis
[39] Section 16(1) of the Divorce Act, R.S.C., 1985, c. 32 (2nd Supp.) provides that a court may make an order respecting custody of, or access to, a child of the marriage on application by a spouse or another person. Section 16(4) of the Divorce Act clarifies that in making an order under section 16, the court may grant custody and/or access to more than one person.
[40] Section 16(8) states that the sole criterion for determining custody and access issues is “the best interests of the child … as determined by references to the condition, means, needs and other circumstances of the child”. As the Supreme Court of Canada stated in Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, the best interests must be determined from the perspective of the child, rather than from the parent’s perspective.
[41] Section 16(10) of the Divorce Act states that 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. The goal of maximum contact with each parent is not absolute but should only be restricted to the extent that it conflicts with the best interests of the child.
[42] While the Divorce Act does not set out a detailed list of factors in determining the best interests of the child, the jurisprudence often refers to the criteria set out in the relevant provincial or territorial legislation. In Ontario, the relevant provision is s. 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12. Section 24 states,
(1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).
(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) any familial relationship between the child and each person who is a party to the application.
[43] In determining the best interests of the children, courts will generally give deference to the status quo, although it is not determinative: Poole v. Poole, 1999 BCCA 203, at para. 23.
[44] I found Ms. Saeed’s evidence to be fair and straightforward. She did not exaggerate her evidence. Despite her circumstances, she wanted the court to know that Mr. Khalid was not a bad person and that he showed her how to live. She described their marriage as the best years of her life. She did not express any ill will towards Mr. Khalid. She also stated that he married her without his parents’ permission, and she felt that his family pressured him to leave her and re-marry.
[45] After considering Ms. Saeed’s evidence, I am satisfied that it is in the children’s best interests to grant her sole custody. I have come to this conclusion for several reasons.
[46] First, the evidence is undisputed that she was the primary caregiver of the children when they resided in the United States. Ms. Saeed testified that she took care of the children and the household.
[47] Second, since returning to Canada in January 2016, Ms. Saeed has been the sole caregiver of the children. She has ensured that their needs have been met for the past three years with essentially no involvement from Mr. Khalid.
[48] Third, Mr. Khalid was made aware of Ms. Saeed’s request for sole custody and had ample opportunity to participate in these proceedings, but he has chosen not to, nor has he made any efforts to have the children return to the United States.
[49] In light of the above factors, joint custody would not be appropriate. Mr. Khalid has no knowledge of the day-to-day needs of his daughters and has had very limited contact with them. In addition, there is virtually no communication between Ms. Saeed and Mr. Khalid. Ms. Saeed is therefore granted sole custody of their two daughters.
[50] In the circumstances, it is also appropriate to grant an order that Ms. Saeed may travel outside of Canada with the children without the consent of Mr. Khalid and that she may apply for passports, passport renewals and other government documentation for the children without the consent of Mr. Khalid.
ISSUE #2: SHOULD MR. KHALID BE GRANTED ACCESS TO THE TWO CHILDREN?
[51] The same facts are relevant to the issue of access as were outlined with respect to the issue of custody. In determining access, the same factors that are considered in granting custody are also applicable. This includes that the court shall consider whether access is in the children’s best interests: Divorce Act, at s. 16(8).
[52] In this case, the children are quite young. The daughters are now nine and five. Mr. Khalid has had very minimal contact with the children since May 2016.
[53] Ms. Saeed submits that it is in the children’s best interests that any access be supervised. She submits that the children do not have any real relationship with their father, do not know him and are not comfortable with him.
[54] I find that Mr. Khalid’s sporadic and extravagant efforts to reach out to the children lacks continuity and are not in the children’s best interests. Access is a privilege that is granted in the children’s best interests. It is not a right that a parent enjoys absolutely regardless of its effect on the child: Armstrong v. Ruby, [2004] O.J. No. 6145 (S.C.), at para. 15.
[55] In the circumstances, it is appropriate to order that Mr. Khalid may have supervised access at an access centre. Supervised access will ensure that the rebuilding of the relationship with the children is in their best interests.
[56] It will be in Ms. Saeed’s sole discretion as to when supervised access is no longer required and to determine the access that Mr. Khalid should have with their daughters.
ISSUE #3: WHAT INCOME, IF ANY, SHOULD BE IMPUTED TO MR. KHALID FOR THE PURPOSE OF CALCULATING CHILD SUPPORT?
[57] Section 15.1(1) of the Divorce Act states that on application, a court of competent jurisdiction may make an order requiring a spouse to pay child support.
[58] In determining the quantum of child support owed, the Federal Child Support Guidelines, SOR/97-175, provides that the quantum of child support is determined having regard to the payor’s income and the number of children: s. 3(1).
[59] Because Mr. Khalid has not provided any proper financial disclosure to Ms. Saeed, Ms. Saeed asks this court to impute an income of approximately $300,000 USD or $400,000 CAD to Mr. Khalid for the purpose of calculating child support.
Relevant Facts
[60] When Mr. Khalid had counsel, he stated that he earned $60,000.00 USD per year. Initially, Mr. Khalid agreed to provide financial disclosure. However, despite requests on August 15, November 23 and December 14, 2018, no financial disclosure was provided.
[61] On January 31, 2019, Price J. ordered Mr. Khalid to provide financial disclosure by February 28, 2019. The endorsement was couriered to Mr. Khalid on February 1, 2019.
i. Mr. Khalid’s Financial Disclosure
[62] On February 28, 2019, Mr. Khalid emailed counsel stating that his financial situation did not allow him to travel abroad. The email attached ten pages. It contained a page that listed his assets and debts as follows:
Assets
Real Estate: $250,000.00
Bank Balance: $254.00
Personal Vehicle: $2,000.00
Total: 252,254.31
Debts
Real Estate Loan: $120,000.00
Credit Card Debt: $5,300.00
Total: $125,300.00
Total Net Worth (Assets – Debts) = $126,954.31
[63] Included was a handwritten statement that said the lease for SS ASMA LLC was terminated as of January 6, 2019. Mr. Khalid attached a termination of contract dated January 10, 2019 signed by Sheraz Khalid and Rodney Robertson.
[64] The handwritten note also stated that SOHA FASTRIP closed in December 2017 due to the eviction of the landlord for non-payment of rent. Mr. Khalid attached an email that stated he was to contact Fidelity Bank “a.s.a.p.” With regards to the mortgage loan, the email does not say what the loan is for.
[65] Mr. Khalid also stated that Myesha ASMA LLC was closed because the business lease was on a yearly basis and the company decided not to renew it. He stated the business was closed in December 2016.
[66] Mr. Khalid also attached two pages of bank statements from Chase Bank from January 26, 2019 to February 26, 2019. The bank statements do not list any regular household purchases such as groceries and there are less than twelve transactions for the entire month.
[67] Mr. Khalid did not provide any personal or corporate tax returns or any financial statements for any businesses as ordered by Price J.
ii. Ms. Saeed’s Evidence
(a) Matrimonial Home
[68] Ms. Saeed testified that they purchased the matrimonial home for $265,000.00 USD. She testified that there was no mortgage on the house. She also stated that they added a sun-room and installed new floors. She provided an online search of houses for sale that were similar to the house they owned. These houses were listed between $293,700.00 USD and $322,313.00 USD. This information is of little assistance because it provides no indication as to what the houses actually sold for. No valuation of the matrimonial home was filed with the court.
(b) Vehicles
[69] Ms. Saeed testified that when they were married, Mr. Khalid owned three vehicles: a black Toyota Avalon, a silver Lexus SUV, and a white Mercedes GL450. Ms. Saeed testified that they purchased the Mercedes in 2014 for approximately $100,000.00 USD in cash. It had a special licence plate with Soha’s name. Ms. Saeed attached a photograph from Mr. Khalid’s WhatsApp profile picture that showed him and his new wife standing in front of the Mercedes, as well as a photo of the car with Soha that shows the licence plate.
[70] When Mr. Khalid was served with the Application materials, the process server made a note of the vehicles in Mr. Khalid’s driveway. This included a white Mercedes GL450 (license plate SOHA), a grey Toyota Sienna (license plate XQM734) and a Toyota Avalon (license plate THW161). A query search demonstrates that those plates are still attached to those vehicles.
(c) Bank Accounts
[71] Ms. Saeed testified that during their marriage, Mr. Khalid had multiple bank accounts, including an account at Capital One. She stated they also had an American Express safety locker where they stored their jewellery. Ms. Saeed testified that the spending depicted in the Chase Bank records provided by Mr. Khalid did not reflect Mr. Khalid’s spending habits in a month.
(d) Businesses
[72] Ms. Saeed testified that during their marriage, Mr. Khalid owned several gas stations. She believes that he continues to own and operate gas stations. She attached a business card and a copy of a LinkedIn profile taken on August 2, 2019 that stated that Sheraz Khalid is self-employed at Texaco, Covington, Louisiana.
[73] Ms. Saeed stated that when she was working with Mr. Khalid, his share of the income from all of the gas stations he owned was approximately $25,000.00 USD per month or $300,000.00 USD annually.
SS ASMA LLC
[74] Mr. Khalid stated that the lease for this gas station terminated on January 6, 2019. Ms. Saeed does not believe this because she has personal knowledge that this gas station earned $15,000.00 per month in income because she worked there.
[75] Ms. Saeed testified that the Texaco gas station at Abita Springs (SS ASMA LLC) was the first gas station they purchased. They purchased this gas station together with Mr. Khalid’s uncle when Ms. Saeed was three months pregnant. Ms. Saeed testified that she worked there for almost three years as a cashier and completed daily paperwork for the business. She stated that she personally witnessed funds enter and exit the business. She said that their share was approximately $8,000.00 USD per month. She discussed the income and operation of the gas station with Mr. Khalid.
[76] She testified that the rent was $12,000.00 USD per month. They owned the business but not the outside. They were paid four cents per gallon for gas and the credit card costs, so they received an offset from the gas. She stated that the outside gas received $125,00.00 USD per month, so usually the owner would have to pay them instead of them having to pay rent. The gas station also had a convenience store attached where they could sell whatever items they wanted. They went to Houston, Texas regularly to buy items for the store. They received all the income from the convenience store. The profit margin on the convenience store was approximately 50% for food and 30% for liquor.
[77] A corporate search from the State of Louisiana shows that SS ASMA LLC is still an active corporation in good standing and that Mr. Khalid is the only officer. The last report for the corporation was filed on March 13, 2019. There was also a Domestic LLC/Domicile Change made on January 29, 2019. The domicile is listed as 71011 Highway 59, Abita Springs, LA 70420. That is the address of the Texaco gas station as shown on the Google Map search.
SOHA FASTRIP
[78] Mr. Khalid stated that this business closed in December 2017 and attached an eviction notice.
[79] A corporate search from the State of Louisiana states that this is an active company, albeit not in good standing for failing to file an annual report. The last report was filed on May 25, 2017. The domicile and mailing address is 2710 N. Highway 190, Covington, LA 70433. According to Ms. Saeed, this company did not own the land for the gas station but leased the property. Ms. Saeed stated that it is possible that this same corporation is leasing a building at another location, but she has no evidence to prove this.
MYESHA ASMA LLC
[80] Mr. Khalid stated that this business closed in December 2016. Ms. Saeed stated that she was aware of the closure of this business and does not dispute that this is true.
S&S FRIENDS LLC
[81] Ms. Saeed stated that Mr. Khalid failed to disclose this company in the ten pages of documents he provided. In March 2018, when a previous corporate search was conducted, the company was in good standing. It is currently not in good standing for failure to file an annual report. The last report was filed in August 2018. In June 2017, the company registered a change in officer. Mr. Khalid is listed as the registered agent and an officer. The domicile and mailing address is 13 Artesian Well Ct., Covington, LA, which is the address of the matrimonial home.
[82] Ms. Saeed has knowledge that Mr. Khalid owns this business and the property that the gas station is on. Based on Ms. Saeed’s evidence, when she is referring to this gas station, I believe she is referring to the gas station that Mr. Khalid bought with his sister. She stated that Mr. Khalid purchased a Shell gas station with his sister in 2014. They owned the store and the gas. It was named after the daughters from their families. She testified that she was not really involved in this gas station because they tried to push her out of the business. She stated that Mr. Khalid’s share of the income was approximately $8,000.00 per month.
BIG BOSS & FRIENDS LLC
[83] Ms. Saeed testified that Big Boss & Friends LLC is a company that she knows that Mr. Khalid was using to purchase a gas station when the parties were separating. Ms. Saeed testified that the gas station had significant truck stop amenities. Ms. Saeed testified that in May 2016 or 2017, Mr. Khalid called her and started crying. It was at that point he mentioned that he was trying to buy this gas station.
[84] Corporate records from the State of Louisiana show that this company is active and in good standing. The company was registered on December 13, 2018. Aniqa Zaheer is listed as agent for the company. She is also listed as an officer with the title of manager. The mailing and domicile address is 29116 S. Frost Road, Livingston, LA 70754.
[85] 29116 S. Frost Road is the address of a gas station/convenience store called Livingston Super Stop. Ms. Saeed admitted that she has not been able to determine who owns the company or who has the beneficial interest in the company. This company was registered in December 13, 2018.
BIG BOSS & FRIENDS 2 LLC
[86] Ms. Saeed stated that this is another company registered under Mr. Khalid’s new wife’s name. This company was registered on January 1, 2019 and the annual report was filed on January 1, 2019. The company is active and in good standing based on corporate records from the State of Louisiana. Ms. Zaheer is listed as agent. The mailing address for the company is listed as 71011 Highway 59, Abita Springs, LA. This is the address for SS ASMA LLC and the Texaco gas station that Mr. Khalid said the lease was terminated for in January 2019.
[87] A Google Map search of the domicile address registered for this company shows the name “Big Boss Trading Company LLC”. A search on Google shows that in 2019, this company imported items from China.
Further Evidence Regarding Income from the Gas Stations
[88] Ms. Saeed stated that she was unaware of the set up for the other businesses, but if Mr. Khalid did not own the gas portion of the business, it would be likely that he would receive a portion of the gas sales.
[89] Ms. Saeed also explained that because she could not return to the matrimonial home, she has not been able to obtain any of Mr. Khalid’s business records. He also has not provided sufficient disclosure. As a result, Ms. Saeed provided several examples of what income gas stations can earn. One article from Bizfluent stated that a medium-sized gas station could generate annual cash flow of $100,000.00 to $130,000.00 USD. The article stated that the national average was $77,000.00 USD. If the store is a high-volume store, the annual earnings “may be well above six figures.” In a Quora forum, one person from Alabama stated that the annual income for fuel and merchandise is anywhere from $130,000.00 to $430,000.00 USD.
[90] Ms. Saeed also attached gas stations that were currently for sale in Louisiana, Mississippi and Texas. They disclose annual revenue between $70,000.00 to $282,000.00 USD annually. The one in East Baton Rouge disclosed inside revenue of $75,000.00 USD per month.
(e) Lifestyle
[91] Ms. Saeed stated that she estimated Mr. Khalid’s annual income to be $300,000.00 USD.
[92] She testified that when they were together, they never thought about money or how much things cost. They bought three new cars during the course of their marriage: a 2009 Black Toyota Avalon for approximately $65,000.00 USD; a 2012 Lexus SUV which Ms. Saeed did not know the price of as Mr. Khalid purchased it with his sister; and a White Mercedes GL450 for $100,000.00 USD. Ms. Saeed provided the current dealership prices for these vehicles.
[93] Ms. Saeed also testified that during their marriage, they often ate out at restaurants. She estimates that they ate outside of the home 15 days per month. She testified that they would eat at Keith Young’s Steakhouse at least twice a month and estimated that dinner cost approximately $80.00 to $100.00 per person. They also ate out often at Longhorn Steakhouse and Red Lobster. If they had to work late, they would often eat at IHOP or Buffalo Wild Wings, which were open 24 hours. She stated that Mr. Khalid loved to eat at expensive restaurants, so they spent a lot of money eating out.
[94] Ms. Saeed also testified that they took luxurious vacations. They travelled to Dubai two or three times and also to Abu Dhabi, Pakistan and Mexico. The rest of the year they would travel within the United States. They travelled to Houston at least every other month to purchase items for the store. They always stayed at Hilton Hotels. Mr. Khalid also supported his parents and his sister when she was going through a divorce.
[95] Ms. Saeed testified that after separation, Mr. Khalid sent the children expensive presents through Amazon. He sent Soha a pink hoverboard, which was listed on Amazon at $229.00 CAD. He also sent Shanzea a green electric children’s Jeep, listed on Amazon at $319.99 CAD. For Soha’s birthday in 2019, he sent her an iPad. In addition, when Mr. Khalid visited Canada in January 2019, he left a large bag of clothes for the children that contained brands such as Gymboree, Michael Kors and Tommy Hilfiger.
(f) Analysis
[96] Sections 15-20 of the Federal Child Support Guidelines are the starting point for the calculation of child support. The goal is to ascertain current income of the payor spouse.
[97] Ms. Saeed seeks to impute an income of $300,000.00 USD or approximately $400,000.00 CAD to Mr. Khalid.
[98] Section 19 of the Federal Child Support Guidelines permits the court to impute income that the court thinks is appropriate in the circumstances, including circumstances where the spouse has failed to provide financial disclosure when under a legal obligation to do so: s. 19(1)(f). In this case, Mr. Khalid was under a legal obligation to provide disclosure regarding his income.
[99] Determining the amount of income to impute to a party is a matter of discretion for the trial judge. The only limitation on the discretion of the court is that there must be some basis in the evidence for the amount that the court has chosen to impute: Drygala v. Pauli (2002), 2002 41868 (ON CA), 61 O.R. (3d) 711 (C.A.), at para. 43.
[100] Although the onus is on the party seeking to impute income, once the party has established a prima face case, the onus shifts to the person seeking to defend the income position the payor takes. The reason for this is that the information that can actually determine the person’s income is in their possession and no one else’s. It is not fair to expect the person seeking to impute income to bear the entire onus of proving the imputation of income: Lo v. Lo, 2011 ONSC 7663, at para. 57.
[101] Where a party fails to provide income information, s. 23 of the Federal Child Support Guidelines allows the court to draw an adverse inference and to impute an income to the spouse that the court considers appropriate based on the evidence available: Jassa v. Davidson, 2014 ONCJ 698, at para. 35; Smith v. Pellegrini, 2008 46927 (Ont. S.C.), at para. 34; Sharma v. Sharma, 2018 ONSC 862, at para. 71.
[102] Providing disclosure is especially important where a party is self-employed because the lack of disclosure may prevent the recipient and the court from fairly assessing their income. That is why the failure to provide complete disclosure may result in the court drawing an adverse inference: Khan v. Parlee, 2012 ONCJ 60, at para. 38; Meade v. Meade, 2002 2606 (Ont. S.C.), at para. 81; Henderson v. McClean, 2015 ONCJ 244, at para. 49; Galea v. Galea, 2017 ONSC 6335, at para. 55
iii. Drawing an Adverse Inference
[103] In this case, Mr. Khalid failed to provide the disclosure that Price J. ordered. The ten pages of documents he chose to send were of no assistance to Ms. Saeed or the court and are self-serving. Mr. Khalid is self-employed, but the documents did not contain any personal or corporate tax returns or any financial statements from any of the corporations. I find that the documents provided are virtually useless in assessing what assets Mr. Khalid owns and what his income is. I have no hesitation in drawing an adverse inference from his failure to comply with the disclosure order. I am also satisfied that if he did provide disclosure, it would not support his position that his yearly income is $60,000.00 USD.
[104] In coming to this conclusion, I have considered that many of the statements contained in the documents that Mr. Khalid provided were disproven. Even if they were not disproven, I still would have drawn an adverse inference given the complete lack of meaningful financial disclosure provided.
[105] Mr. Khalid sent a handwritten note explaining that the SS ASMA LLC lease was terminated on January 6, 2019. In support of this, he provided a copy of a Termination of Contract document signed by a Rodney Robertson dated January 10, 2019. This document was not witnessed.
[106] The inference that Mr. Khalid wanted the court to draw is that this business is not operating. However, documents filed by Ms. Saeed contradict this inference. Documentation shows that SS ASMA LLC is an active company in good standing. On January 29, 2019 a Domestic LLC Agent/Domicile Change was made. The domicile address for SS ASMA LLC is 71011 Highway 59, Abita Springs, LA, which is the address of the Texaco gas station. In addition, SS ASMA LLC filed a corporate report on March 13, 2019. The documents demonstrate that this business is still operating despite Mr. Khalid’s statement to the contrary.
[107] Big Boss & Friends 2 LLC lists the address of the Texaco station, 71011 Highway 59, as the mailing address. This corporation was registered on January 3, 2019. Sadia Syed, Mr. Khalid’s wife, is listed as a registered agent and the officer of the corporation. It is reasonable to infer that Mr. Khalid is still operating the Texaco gas station.
[108] Mr. Khalid’s assertion that his personal vehicles are worth $2,000.00 is also not believable. Ms. Saeed provided documentation about the vehicles he owned when the parties were married and what they spent to purchase them. When Mr. Khalid was served, the process server noted several cars in his driveway that included a white Mercedes GL240, a grey Toyota Sienna and a Toyota Avalon. The Toyota and the Mercedes match the descriptions of the vehicle that the parties owned when Ms. Saeed lived in the United States.
[109] I also do not accept Mr. Khalid’s assertion that his financial situation does not permit him to travel abroad to attend court hearings. I prefer the evidence of Ms. Saeed that Mr. Khalid was in Canada in January 2019, prior to the Case Conference that took place on January 31, 2019 that Mr. Khalid chose not to attend.
[110] It would also appear that Mr. Khalid is actively trying to hide his assets based on the other corporations that Ms. Saeed discovered. For example, Mr. Khalid failed to disclose that he is an officer and registered agent for S&S Friend’s LLC.
iv. What Businesses is Mr. Khalid Operating?
[111] Although Mr. Khalid’s failure to provide the required disclosure permits the court to draw an adverse inference and to impute income, there must still be an evidentiary basis for the imputation of income: Drygala, at para. 44; Sharma, at para. 67.
[112] In considering the evidentiary basis, the court has to recognize that the recipient party may face difficulties in providing evidence. However, the complying party’s evidence will generally be accepted: Robillard v. Robillard, [2003] O.J. No. 3572 (S.C.), at para. 13. It lies ill for the payor party to complain that the values that were arrived at were incorrect when the payor party refused to comply with an order to assist the court in making that determination: Bargout v. Bargout, 2013 ONSC 29, at paras. 12, 38-39, 43.
[113] Unlike in other cases, such as Bargout, Ms. Saeed has direct knowledge of the income that Mr. Khalid made from the gas stations because she worked at the Texaco gas station.
[114] I am satisfied that Mr. Khalid still owns the Texaco station in Abita Springs despite his statement to the contrary. Mr. Khalid asserted that the lease for this gas station was terminated on January 6, 2019 and purported to provide a document that terminated the lease. I do not accept his assertion. The documentation shows that SS ASMA LLC was still in good standing and filed its last report on March 13, 2019. In addition, on January 29, 2019, there was an amendment to the Domestic LLC Agent/Domicile Change. The domicile address is listed as 71011 Highway 59, Abita Springs, LA 70420. That is the address of the Texaco gas station. Regardless of whether the agent or the domicile was changed, the making of the change demonstrates that the business is active. The reasonable inference is that this gas station business remains active, given that is the address listed as the domicile address.
[115] Moreover, the fact that Big Boss & Friends 2 LLC lists the mailing address of the Texaco station as 71011 Highway 59 further supports the reasonable inference that Mr. Khalid is still operating the Texaco station. Big Boss & Friends 2 LLC listed Sadia Syed, Mr. Khalid’s wife, as a registered agent and the officer of the corporation as of January 3, 2019. The mailing address is the address of the Texaco station.
[116] I am not satisfied that Mr. Khalid is operating a gas station through SOHA FASTRIP. Mr. Khalid stated that this business closed in December 2017. He provided an email purportedly dated December 13, 2017 setting out the eviction notice. Ms. Saeed testified that this corporation operated a gas station and she knew that Mr. Khalid did not own the land for this gas station. She submitted that it is possible that the same corporation is leasing at a different location, but there is no independent evidence to support this assertion.
[117] Ms. Saeed also readily admitted that MYESHA ASMA LLC closed in December 2016. She stated she was aware of this closure.
[118] I am satisfied that Mr. Khalid is operating a gas station under the corporation S&S Friends LLC. I accept Ms. Saeed’s evidence that this corporation owns both the property and the gas station. It is extremely telling that Mr. Khalid did not disclose his involvement in this corporation. The business is still active, although not in good standing as of July 19, 2019 because it failed to file its annual report. The last report filed was on August 29, 2018. Mr. Khalid is listed as the agent and officer. The domicile and mailing address is listed as Mr. Khalid’s home address. I also note that Ms. Saeed filed her Application in March 2018 and the communication with Mr. Khalid’s lawyer about disclosure ended in August 2018.
[119] Based on Ms. Saeed’s evidence, I am also satisfied that Mr. Khalid is operating a large gas station located at Livingston Super Stop. Ms. Saeed testified that she was aware that Mr. Khalid was trying to purchase the Livingstone Super Stop. I am satisfied that Mr. Khalid used Big Boss & Friends LLC to purchase this gas station.
[120] This company was incorporated on December 13, 2018, after Ms. Saeed filed her Application in court seeking custody and support. The corporation was registered in the name of Sadia Syed. Ms. Saeed testified that this is Mr. Khalid’s new wife. The other agent is Aniqa Zaheer. They are also both listed as officers of the corporation.
[121] The domicile address of the corporation is 29116 S. Frost Road, Livingston, LA 70754. This address is the Livingston Super Stop. It is a Cheveral gas station.
[122] I find that it is a reasonable inference that Mr. Khalid had his wife incorporate this corporation to avoid having to disclose it. I have come to this conclusion given the fact that Ms. Saeed was previously aware that he was attempting to purchase this gas station. I have also considered the timing of incorporation as compared to the family law litigation. I am satisfied that it is a reasonable inference that Mr. Khalid is at least part owner of this gas station.
[123] I also find that Mr. Khalid is involved in the business Big Boss & Friends 2 LLC. This company imports items from China. It is also the type of business that could be used to stock items in convenient stores. This corporation was registered on January 1, 2019. It also lists Ms. Syed and Ms. Zaheer as agents and officers of the corporation. As noted above, the mailing address is the Texaco in Abita Springs, further demonstrating Mr. Khalid’s involvement in that business.
[124] Ultimately, I am satisfied that Mr. Khalid earns income from three gas stations. I now turn to what income should be attributed to him from these gas stations.
v. What Income Should Be Imputed?
[125] I am satisfied that the appropriate amount of income to impute to Mr. Khalid is $258,000.00 USD from the three gas stations. In coming to this conclusion, I have considered Ms. Saeed’s evidence with respect to the income the family earned from the Texaco station and her knowledge of the other gas stations. I have also taken into account her evidence with respect to the lifestyle the family lived which demonstrates that the family income is far more than the $60,000.00 USD that Mr. Khalid claimed.
[126] I accept Ms. Saeed’s evidence that the Texaco station earned at least $15,000 USD per month. Her family’s half would be $7,500.00 per month or $90,000.00 USD annually.
[127] Ms. Saeed testified that the Texaco gas station was very successful. Ms. Saeed provided detailed evidence with respect to when the gas station was purchased by Mr. Khalid and his uncle. She knew how this gas station operated and was in a position to give this evidence because she worked at the gas station prior to separation. She provided detailed evidence about how the business operated and her role in the business. She testified in a straightforward manner and I found her evidence to be very compelling. If she did not know the answer, she did not try to guess.
[128] Ms. Saeed stated that SS ASMA LLC’s monthly income was approximately $15,000.00 per month. There is a slight inconsistency in her evidence in that she testified that her family’s half of the money would be approximately $8,000.00 per month. I do not find this to be a major inconsistency given her use of the word “approximately” in both answers.
[129] I am also imputing income in the amount of $7,00.00 per month or $84,000.00 USD per year to the gas station that I have found Mr. Khalid to be operating under the corporate name of S&&S Friends LLC.
[130] In coming to this conclusion, I have considered Ms. Saeed’s candid admission that she did not know much about the operation of the other gas stations. She did however know that they owed the property that this gas station was located on. Ms. Saeed candidly admitted that the other gas stations they owned were not as successful as the Texaco station. Ms. Saeed also testified that the family earned approximately $25,000.00 per month from the various gas stations, which includes this gas station as well as at least one other at the time of marriage.
[131] Little evidence was provided with respect to the Cheveral gas station because Mr. Khalid acquired it after the parties separated. I accept Ms. Saeed’s evidence that this was a big project that Mr. Khalid was working on when the parties were married and that it had many trucking amenities. The corporate records suggest that there is another partner involved in the gas station. Given that the Texaco station earned $7,500.00 USD per month, I am of the view that a reasonable and possibly conservative income to impute is $7,000.00 per month or $84,000.00 USD annually.
[132] In imputing income, I have not placed any reliance on the website documents or listings of various gas stations that are for sale that were provided by Ms. Saeed. These documents are hearsay. There was no expert called to testify about the possible incomes that can be earned from owning a gas station.
[133] I also considered Ms. Saeed’s evidence with respect to the family’s lifestyle in determining the proper income to impute to Mr. Khalid. Lifestyle may be used by the court to draw an inference that a party earns more income than they declared: Bak v. Dobell, 2007 ONCA 304, at paras. 41, 43
[134] Given the lifestyle that Mr. Khalid and Ms. Saeed had while they were together, it is clear that he earned much more than $60,000.00 USD. In coming to this conclusion, I accept the evidence of Ms. Saeed that they owned the matrimonial home outright and that they made several upgrades to the home. I have also considered Ms. Saeed’s evidence that they bought a Mercedes for $100,000.00 USD in cash. I also accept Ms. Saeed’s evidence with respect to their travel to various countries and within the United States.
[135] Mr. Khalid appears to continue to live this lifestyle. It appears that he still resides in the family home and that he still owns three vehicles including the Mercedes. That car was present at the home when the process server attended.
[136] Section 20(1) of the Federal Child Support Guidelines states that where a spouse is a non-resident of Canada, as in this case, the spouse’s income is determined as if the spouse resided in Canada. Section 20(2) provides an exception to this rule and requires the court to consider the proper income where the foreign tax rates are significantly higher than in the province where the spouse resides. There is no evidence before me that the tax rates in Louisiana are significantly higher than Ontario’s tax rates. As such, I am treating Mr. Khalid’s USD income as if he resided in Canada.
[137] I impute Mr. Khalid’s income at $258,000.00 USD. The Bank of Canada lists the exchange rates between Canadian and United States’ dollars as 1.2986 for 2017, 1.2957 for 2018, and 1.3269 for 2019.[^1] In the circumstances, I am satisfied that it is appropriate to use an exchange rate of 1.30 for the purpose of calculating Mr. Khalid’s income in Canadian dollars. Therefore, Mr. Khalid’s income for the purpose of calculating child support is $335,400.00 CAD.
[138] Based on the Federal Child Support Guidelines and the fact that there are two children of the marriage, Mr. Khalid is ordered to pay child support in the amount of $4,302.00 CAD per month commencing on March 1, 2020.
ISSUE # 4: SHOULD MR. KHALID PAY RETROACTIVE CHILD SUPPORT?
[139] In considering whether child support should be paid retroactively, the court must consider the fundamental principles relating to child support as set out by the Supreme Court of Canada in D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231. This includes that child support is the right of the child and should provide the child with the same standard of living that the child had prior to the separation, as much as is possible. The goal of child support is to ensure that the children benefit from the support they are owed, when they are owed it. Any incentive for payor parents to be deficient in fulfilling their child support obligations should be eliminated.
[140] There is no fixed formula for how the court should exercise its discretion in determining whether to order retroactive child support. Some of the relevant factors to consider include:
i) Whether there is an obligation to provide support, either contractual, statutory, or judicial.
ii) Whether there is a reasonable excuse for the child support payor’s delay in applying for relief.
iii) The conduct of the child support payor.
iv) The ongoing financial capacity of the child support payor and their ability to make payments towards the outstanding arrears.
v) The ongoing need of the child support recipient and the child.
vi) Delay on the part of the child support recipient does not in and of itself constitute a waiver of the right to claim arrears.
[141] I am satisfied that it is appropriate to require Mr. Khalid to pay retroactive child support. While Ms. Saeed did not seek child support payments prior to this application, Mr. Khalid knew he was not fulfilling his obligations to support his children once he left them in Canada with Ms. Saeed. He provided very little financial support to his children since returning to the United States and put his own interests ahead of his children.
[142] The needs of the children are high. Ms. Saeed testified that she relied on the assistance of others to support her and the children since Mr. Khalid left her in Canada. Her financial statement indicates her current income is $28,836.00. In her Notice of Assessments her total income is listed as follows: $2,800.00 in 2016; $14,780.00 in 2017; and $32,200.00 in 2018. There is a significant income disparity between Ms. Saeed’s income and the income I imputed to Mr. Khalid.
[143] While Mr. Khalid has not claimed undue hardship, given the extensive amount of arrears owing for child support, I am satisfied that any hardship can be addressed by requiring that the payments owed be paid on a monthly basis until the arrears are paid.
[144] Ms. Saeed testified that Mr. Khalid paid some support when she and the children were first in Canada. It also appears he paid $710.00 in August 2018 when he had counsel. Any amounts of support that Mr. Khalid has paid are to be deducted from the amount of arrears owing.
[145] The court must also determine the appropriate date to make payments retroactive to. The Supreme Court of Canada in D.B.S. held that the date of effective notice as the default option is usually most appropriate. Effective notice is any indication by the recipient parent that support should be paid. It does not require the recipient parent to take any legal action: D.B.S., at para. 121.
[146] Ms. Saeed seeks child support to be paid retroactively to September 2016. That is when she determined that their marriage ended as she found out that Mr. Khalid had re-married. I am satisfied that this is an appropriate date. Mr. Khalid was on notice that child support should be paid once he left Ms. Saeed in Canada with the two children. Mr. Khalid had an obligation to provide some support, yet he has done virtually nothing to support his children.
[147] I therefore find that Mr. Khalid owes child support arrears from September 1, 2016 to February 1, 2020 based on an imputed income of $335,400.00 CAD. Mr. Khalid may provide proof of the amounts that he has paid in child support between these dates. If Ms. Saeed and/or the Family Responsibility Office are satisfied with Mr. Khalid’s proof of the amounts paid, it shall be deducted from the amount of arrears owed.
[148] Mr. Khalid is also ordered to pay $3,000.00 per month for child support arrears, commencing on March 1, 2020, until the full amount of child support arrears are paid.
ISSUE #5: SHOULD MR. KHALID PAY SECTION 7 EXPENSES?
[149] Ms. Saeed also claims s. 7 expenses retroactive to September 1, 2016.
[150] Section 7 of the Federal Child Support Guidelines states that the court may order that either spouse provide for an amount of any extraordinary expenses. The test is whether the expense is reasonable and necessary, having regard to the parent’s individual and collective needs.
[151] I am satisfied that going forward, Mr. Khalid shall pay a proportionate share of reasonable s. 7 expenses related to daycare expenses and medical expenses that are not otherwise covered under any medical or dental plans that Ms. Saeed may obtain. Mr. Khalid shall also pay a proportionate share of s. 7 expenses relating to any activities the children are enrolled in, not exceeding the amount of $1,500.00 per child annually.
[152] Based on Mr. Khalid’s imputed income of $335,400.00 CAD and Ms. Saeed’s stated income of $28,836.00, Mr. Khalid is required to pay 71.6% of s. 7 expenses commencing on March 1, 2020.
[153] It is not appropriate to award any retroactive s. 7 expenses because no evidence was provided to the court that any such expenses were incurred.
FINAL ORDER
[154] For the reasons above, it is ordered that:
The Mother, Saima Saeed, have sole custody of the children, Soha Sheraz born on June 25, 2010 and Shanzea Sheraz Khalid born on February 18, 2014.
The Father, Sheraz Khalid, shall have supervised access with the children Soha Sheraz and Shanzea Sheraz Khalid. It is in the sole discretion of the Mother, Saima Saeed, whether to permit Mr. Khalid unsupervised access and the amount of access.
The Mother, Saima Saeed, may travel outside of Canada with the children, Soha Sheraz and Shanzea Sheraz Khalid, without the consent of the Father, Sheraz Khalid.
The Mother, Saima Saeed, may apply for passports, passport renewals and any other government documentation for the children Soha Sheraz and Shanzea Sheraz Khalid without the consent of the Father, Sheraz Khalid.
Commencing March 1, 2020, the Father, Sheraz Khalid, shall pay child support to the Mother, Saima Saeed, based on an imputed income of $335,400.00 CAD. As per the Federal Child Support Guidelines the Father, Sheraz Khalid shall pay the amount of $4,302.00 CAD per month.
The Father, Sheraz Khalid, shall pay retroactive child support to the Mother, Saima Saeed, based on an imputed income of $335,400.00 CAD from September 1, 2016 to February 1, 2020.
The Father, Sheraz Khalid, shall pay retroactive child support in the amount of $3,000.00 CAD per month to the Mother, Saima Saeed, commencing on March 1, 2020, until the entire amount of child support arrears are paid. The Father, Sheraz Khalid, may make larger payments or a lump sum payment towards the arrears owing at his discretion.
If the Mother, Saima Saeed, and/or the Family Responsibility Office are satisfied that the Father, Sheraz Khalid, previously made some child support payments between September 1, 2016 and February 1, 2020, those amounts are to be deducted from the amount of child support arrears owed by the Father, Sheraz Khalid.
Commencing March 1, 2020, the Father, Sheraz Khalid, shall pay his proportionate share (71.6%) of the children’s reasonable s. 7 expenses, including the children’s daycare expenses and medical expenses. The Father, Mr. Khalid shall pay his proportionate share of any s. 7 expenses relating to any activities the children are enrolled in, not to exceed the amount of $1,500.00 CAD per child annually.
A support deduction order shall be issued.
COSTS
[155] Ms. Saeed seeks costs on a substantial indemnity basis. She submits that Mr. Khalid acted unreasonably and in bad faith by trying to mislead the court with the documents he provided in response to Price J.’s order.
[156] In Mattina v. Mattina, 2018 ONCA 867, the Court of Appeal for Ontario confirmed that modern costs rules are designed to foster: i) partial indemnification of the cost of litigation for the successful litigants; ii) encouragement of settlement between parties; and iii) deterrence and sanctioning of inappropriate behaviour by litigants: para. 10.
[157] The overall objective in determining cost is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case: Boucher v. Public Accountants Council of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634 (C.A.), at para. 24.
[158] There are three issues in determining the issue of costs: entitlement, scale and quantum.
[159] With respect to entitlement, there is a presumption that the successful party will obtain costs. Ms. Saeed was successful at trial and is therefore presumed to be entitled to costs.
[160] With respect to scale, there are limited circumstances in which the court will contemplate granting costs on a higher scale than substantial indemnity. Such circumstances include where the other party has behaved unreasonably, acted in bad faith or has beat an offer to settle: Family Law Rules, at Rule 24(4), 24(8) and 8(14).
[161] I am satisfied that Mr. Khalid has acted in bad faith even with his limited participation in these proceedings. First, Mr. Khalid did not comply with Price J.’s order to provide financial disclosure. Second, I find that the minimal financial disclosure he provided was false and was intended to mislead the court for the reasons outlined in this decision. The court cannot tolerate this type of behaviour.
[162] Finally, with respect to the quantum of costs, I have reviewed the Bill of Costs provided by Ms. Saeed’s counsel. It sets out the lawyer’s hourly rate, which lawyer completed what task, and the time spent on each task. The rates, assignments and time spent on the tasks appear reasonable. I note that extra time was required because Ms. Saeed had to provide evidence of Mr. Khalid’s income.
[163] I am therefore satisfied that it is appropriate to award costs against Mr. Khalid in the amount of $15,000.00.
Dennison J.
Released: February 11, 2020
COURT FILE NO.: FS-18-91891-00
DATE: 2020 02 11
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E N:
SAIMA SAEED
Applicant
- and -
SHERAZ KHALID
Respondent
REASONS FOR JUDGMENT
Dennison J.
Released: February 11, 2020
[^1]: See Bank of Canada, Annual Exchange Rates, at https://www.bankofcanada.ca/rates/exchange/annual-average-exchange-rates/.