ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Arwa Abumatar
Applicant
– and –
Ayad Abou Hamda
Respondent
Self-Represented Applicant
Self-Represented Respondent
HEARD: March 19, 2021
JUDGMENT
THE HONOURABLE MR. JUSTICE A. PAZARATZ
1If you feel like cramming your family court affidavit with every possible thing you can think of....Don’t!
2The self-represented parents on these cross-motions to change child support filed voluminous materials -- telling me all sorts of things that didn’t help me decide; and leaving out a few things that might have helped me decide.
3The background briefly:
a. The Applicant mother and the Respondent father are both 48 years old.
b. They were married on June 24, 2003.
c. They separated on September 17, 2015.
d. They were divorced in 2018.
e. They have two daughters, R.A.H., age 16 and S.A.H. age 12.
MARCH 24, 2017 ORDER
4On September 17, 2019 the mother commenced a motion to change the final order of Justice McLaren dated March 24, 2017, which included the following provisions, on consent of the parties:
a. Custody of both children to mother.
b. Consultation re major decisions.
c. Father to have access in mother’s discretion, including liberal and generous access
d. Father to pay child support in the sum of $408.00 per month based upon an imputed income of $28,000.00, commencing April 1, 2017.
e. Father to provide annual income disclosure by June 1st.
f. Father to designate children as irrevocable beneficiaries of any life insurance.
g. Father to pay 80% of section 7 expenses.
h. Father to maintain health benefits for children as available through employment.
i. Father not to remove children from Hamilton without mother’s permission.
j. Mother may travel out of Canada without requiring the father’s permission, provided she advises him of travel plans.
k. Parties to keep one another updated re: their contact information.
5The father was served with the motion to change in October 2019. In November 2019 he brought a cross motion which included a request for custody of both children and child support from the mother.
SPLIT PARENTING TIME
6At the beginning of February 2020 the mother and the oldest child had a sudden and somewhat dramatic falling out.
a. The father characterizes it as the mother kicking R.A.H. out and leaving her homeless.
b. The mother says R.A.H. left on her own because of serious problems.
c. At the time the father was living and working about 100 kilometres from Hamilton, where R.A.H. had been residing with the mother and S.A.H.
d. For a brief period R.A.H. went to stay out of town with the father. He then relocated to Hamilton and rented larger accommodation so that R.A.H. could continue with school and community connections in this city. At first this relocation meant he had to commute to his out of town employment. When the COVID pandemic emerged, he started working mostly from home. But he’s not sure what will happen if he is required to resume commuting to on-site employment 100 kilometres away.
e. The father continues to pursue primary parenting time and decision making with respect to S.A.H. as well. That issue is still working its way through case management, with the Office of the Children’s Lawyer having recently assigned counsel for both children.
f. If parenting arrangements change in the future, that can be addressed as a material change in circumstances. As of this moment I am dealing with a split parenting-time situation.
7The primary issues on this motion were:
a. The mother’s request for a retroactive increase in child support for both children from January 1, 2018 until February 2020 when R.A.H. left her care. Thereafter she seeks child support for the one child remaining in her care.
b. The father opposes any retroactive adjustment of child support prior to October 2019 when he was served with the mother’s motion to change. He says prior to that date the mother requested and he paid significant extra monies which more than cancel out any retroactive adjustment.
c. Both parties agree a support adjustment is appropriate when R.A.H. left the mother’s residence in February 2020. The mother says the adjustment should take place March 1, 2020. However, I agree with the father’s position that the adjustment should take place February 1, 2020 because R.A.H. left at the beginning of the month. Upon her departure the mother had no further expenses in relation to R.A.H. whereas the father immediately assumed expenses in relation to the child.
d. The father acknowledges he should continue to pay support for S.A.H. from February 1, 2020 onward. But he seeks child support from the mother for R.A.H. She says she’s not working. He says she has hidden resources and in any event, she should be working. He seeks to impute income. The mother opposes this.
e. There is also a dispute in relation to retroactive and ongoing section 7 expenses.
8Fortunately, the parties were able to agree on the father’s income summary:
a. 2016 $3,415.00
b. 2017 $40,109.00
c. 2018 $72,270.00
d. 2019 $94,277.00
e. 2020 $94,000.00
9However, they disagreed about when those numbers were disclosed.
a. The father insists that every year he mailed copies of his tax documents to the mother in June, as required by the 2017 order. He had no proof but he submits that obviously the mother was aware his income had increased because as soon as his income went up he started paying extra money on behalf of the children – usually at the mother’s request, and always with her knowledge.
b. The mother denies that the father made any income disclosure until after she served him with the motion to change in October 2019. She admits she was aware that in those years when his income went up the father was also paying extra monies. But for the most part she denies asking for those extra monies. She says anything extra he paid to or on behalf of the children had nothing to do with her – and shouldn’t affect her entitlement to proper child support.
c. I am unable to determine whether the father formally made annual income disclosure as required by the order. The onus is on him to prove that he mailed his tax returns and notices of assessment each year, as he alleges.
d. It would appear however that long before commencing her motion to change in October 2019 the mother had some actual knowledge that the father was spending significant monies in relation to the children, well beyond what he could have afforded based on the $28,000.00 income imputed to him at the time of the March 24, 2017 order.
RETROACTIVE CALCULATIONS
10The mother acknowledges that if support is increased retroactively, the father should get credit for the $408.00 per month he has been consistently paying pursuant to the March 24, 2017 order. She also acknowledges that any adjustment of support should be based on the father’s income in the previous year. She proposes the new amounts should be as follows:
a. January to December 2018, $599.00 per month based upon his 2017 income of $40,109.00.
b. January to December 2019 $1,101.00 per month based upon his 2018 income of $72,270.00.
c. January and February 2020 $1,402.00 per month based upon his 2019 income of $94,277.00.
d. From March 1, 2020 onward $844.00 per month for one child (with no split parenting time set-off) based on his income of $94,277.00. (As stated, I have already determined that the change in child support to reflect R.A.H.’s change of residence should be effective February 1, 2020.)
11Based on the mother’s numbers, the “underpayment” since January 1, 2018 would be $11,602.00 as of January 31, 2020, the last month for which the father should have paid for two children. Addressing the father’s primary argument that there should be no adjustment prior to October 2019 when he received actual notice of the mother’s request, $2,772.00 of the “underpayment” arose during October, November, December 2019 and January 2020.
12Whichever “underpayment” figure prevails, the father insists he has paid far more in extra money which he should be credited for.
AIRLINE TICKETS
13The father seeks reimbursement with respect to airline tickets:
a. He says the mother travels to Qatar every summer to visit her parents.
b. He says the mother asked him to pay for the children’s tickets to allow them to accompany her during the summer trips.
c. He says he paid a total of $11,332.90 for children’s airline tickets in 2016, 2017, 2018 and 2019. ($8,455.48 of that sum was paid after the March 24, 2017 child support order.)
d. The father says he wouldn’t – and couldn’t – have paid those sums if he had known he would later be facing a retroactive increase in child support.
14The mother’s position:
a. She admits she sent written requests asking the father to pay for the children’s airfare, and that he paid the sums he has set out.
b. But she says it was all his idea.
c. He wanted the children to travel to Qatar annually so that they could maintain their residency status.
d. She was willing to take the children if that’s what the father wanted.
e. But it was his idea, so he shouldn’t use those payments as an excuse to avoid proper child support.
15The father says both parents agreed the annual trips were beneficial for the children.
16Based on the conflicting evidence, it is impossible for me to determine the extent to which the children’s annual trips to Qatar were the mother’s idea or the father’s idea.
a. But the mother certainly knew all about it.
b. She travelled with the children every year. The father derived no personal benefit from this annual arrangement. His payments were entirely for the benefit of the children.
c. The mother specifically asked the father to pay 100% of the cost of the air fare, in addition to his ongoing support order.
d. These were significant amounts, given the family’s finances. It must have been apparent to the mother that the father’s income had increased since the March 2017 order.
e. In retrospect – as on many topics – it would have been wiser for the parties to more specifically address whether the father’s extra payments would be taken into account when his overall child support obligation was calculated (or re-calculated). But they didn’t have that conversation.
f. In the circumstances, given the mother’s active participation in this expenditure by the father, I feel it would be unfair to ignore these good faith and child-focused payments.
$6,000 PAYMENT
17The parties disagree about a $6,000.00 child support payment.
a. The father says even though he was just getting on his feet and the mother wasn’t pursuing more support in Canada at the time, in 2018 the mother and the maternal grandmother forced him to pay $6,000.00 in Qatar, where both parties have historic and continuing connections.
b. The father produced a letter from his lawyer in Qatar, Yousuf Ahmad Al-Zaman which states that $6,000 in Canadian funds was paid as lump sum child support to the mother on September 26, 2018 in Qatar.
c. The mother denies all of this. She says she never received the $6,000.00. She says the lawyer’s letter is untrue. But she provides no elaboration.
18He said. She said. Lawyer said. All in Qatar. That’s as much “proof” as I was given.
a. Credibility is really hard to determine based on affidavit materials.
b. Neither party proposed taking any additional steps to further test or explore this allegation. Neither proposed an oral hearing, cross-examination, better evidence from the lawyer – or any evidence from the maternal grandmother in Qatar who was alleged by the father to have been involved with the payment.
c. In many family court cases, when someone claims they paid some money the inevitable response is “Do you have anything in writing to prove it?” Even in this case, there were other sums – totalling more than $7,500.00 – which the father claimed he had paid for the children. But he reluctantly abandoned those claims because he realized he had absolutely no proof of cash payments.
d. But here he offered some fairly significant documentary evidence. He produced the lawyer’s letter to the mother long ago. She has never taken any step to challenge it. She has simply given a blanket denial.
e. I am unable to determine with certainty which of these parties is telling the truth on this issue.
f. There is no evidence of deception by the father on other topics. No suggestion that he has a criminal record or any history of dishonesty. Or that he has otherwise misled this court.
g. In contrast, there is at least one area – her employment -- where I find that the mother has been less than candid. I will discuss this below.
h. The mother does not deny that the parties had ongoing legal issues in Qatar. She does not deny that the author of the letter was in fact the father’s lawyer in Qatar. One would think that it would be very risky to fabricate a lawyer’s letter saying a very specific sum was paid to a specific person for a specific purpose. If it was a fake, it wouldn’t be hard for the mother to contact the lawyer and demand that the record be set straight.
i. In the circumstances, I find that on a balance of probabilities it is more likely that the father really did make the $6,000.00 payment to the mother, as he has stated.
j. But notably, even if this is not the case – given the father’s other contributions – my overall conclusion about retroactivity would remain the same.
19After this, the father’s remaining claims for “credits” quickly descend into dubious, diminishing returns.
$1,823.00 TO CHILDREN’S BANK ACCOUNTS
20The father says the mother asked him to pay extra support for the children and to deposit money directly into bank accounts she had set up for their daughters. He provided bank records confirming he transferred a total of $1,823.00 to the children’s accounts between May and October 2019.
21The mother says she never asked the father to send any money to the children. She does not dispute that the father may have sent the children some money. But she says she had nothing to do with those funds. She didn’t ask for the money. She didn’t receive it. She didn’t spend it. It should have nothing to do with child support.
22On this issue, for the most part, I agree with the mother.
a. Unlike the air fare issue, the father offered no proof that the mother requested, received or benefited from these direct payments to the children.
b. If a support payor elects to give extra money directly to a child, they cannot presume that this unilateral decision will lead to a credit against otherwise appropriate child support payments.
c. However, if the mother came to be aware that the father was giving extra money to the children, that should have been further indication to her that the father’s income had likely increased from the very modest amount imputed in the March 2017 order.
OTHER “CREDITS”
23The father presented a wide-ranging list of other expenditures for which he sought credit as against child support. None of them were either helpful or necessary to his case. They include:
a. He wanted a credit for $1,196.67 because in November 2017 the older daughter used his credit card without his permission to purchase an iPhone from the Apple Online Store. There was no suggestion the mother participated in this fraud. But he felt the mother and daughter should have helped him get a refund. So he wanted to deduct the amount from child support. In my view, this is not appropriate.
b. He says even though he consented to the March 24, 2017 child support order, the amount he agreed to was too high, so he wanted a credit of $6,120.00 as an “overpayment.” In my view, this is not appropriate.
c. He requested credit for $412.45 he paid for S.A.H.’s phone bill in 2018 and 2019. He says the mother asked him to do so, but he had no proof. The mother denies being involved. In my view, the father’s request is not appropriate.
d. The father requested credit for $400.00 he sent R.A.H. through Western Union. Again, he said this was pursuant to the mother’s request. He presented proof that he sent the money, but no proof that the mother had requested it. The mother denies being involved. The father’s request is not appropriate.
e. The father requested credit for $97.65 he paid for “UberEats”. He says the mother would send the children to school without lunch, so he ordered lunch to be delivered to them. The mother denies all of this. In my view, the father’s request is not appropriate.
f. The father requested a reduction of child support for two weeks when he took a trip with the children in August 2019, while the mother was pregnant with her child of her current relationship. In my view, it is not appropriate for a non-primary resident parent to seek a reduction of child support in relation to a two week vacation with children.
g. The father requested a reduction of child support in the sum of $250.00 per month in relation to transportation expenses related to exercising access. He provided no particulars and none of the information which would be required for an undue hardship analysis. In my view, this claim is not appropriate.
h. Indeed, at several points the father used the phrase “undue hardship” as an explanation why he shouldn’t pay any retroactive child support – without ever addressing any of the evidence or considerations applicable to a section 10 analysis under the Child Support Guidelines (“the Guidelines”); or any of the “hardship” considerations applicable to retroactive claims. (“Undue hardship” is the support equivalent of “parental alienation”. Two powerful words. But in the absence of evidence, they betray desperation.)
24The father had other similar claims for “credits against child support.” None of them were appropriate.
25Indeed, the father even suggested he should receive spousal support from the mother, as a set off against child support.
a. This is a motion to change a final order which didn’t even mention spousal support.
b. The father is not paying spousal support and there has never been a determination that he is entitled to receive spousal support.
c. If the father is serious about claiming spousal support, he would have to start a fresh application.
d. Beyond that slight technical problem, the father presented no evidence to address either entitlement or quantum.
e. This ended up being scheduled as a long motion mainly because the self-represented father took a “let’s throw in everything but the kitchen sink” approach. Ironically, he had a handful of good arguments and he should have stuck to them.
f. That old expression about “quality, not quantity” applies in Family Court. Focus on your strengths. Don’t let the dumb overshadow the smart.
ORTHODONTIC EXPENSES
26Apart from retroactive support for two children and ongoing support for one, the mother asks that the father pay 80% of orthodontic expenses for the younger child S.A.H. which she says will total $8,000.00.
a. The mother says the existing order requires the father to pay 80% of section 7 expenses. She has delayed scheduling the orthodontic work because the father has refused to pay.
b. The father says the total amount is closer to $6,500.00. He says he can’t afford to pay anything until the other child support claims are determined.
c. He says his finances are extremely poor, particularly since he had to incur unexpected relocation expenses moving to Hamilton to assume care of R.A.H.
d. He proposes that once all other issues are resolved, the orthodontic expense should be shared between the parties in proportion to their incomes – including imputed income to the mother.
IMPUTED INCOME
27The father says income should be imputed to the mother for two reasons:
a. He says she is quite wealthy with property and savings in other countries, so investment income should be imputed.
b. He says there is no reason why she is not working, so employment income should be imputed.
28The legal considerations with respect to imputing income include the following:
a. The purpose of the Child Support Guidelines is to establish a fair standard of support that ensures that children continue to benefit from the financial means of both spouses after separation, using a methodology that strives to achieve objectivity, efficiency and consistency. Atkinson v. Johnson 2021 ONCJ 15 (OCJ).
b. Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, parents must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. Drygala v. Pauli 2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731; 2002 (Ont. CA); L.B. v. P.E. 2021 ONCJ 114 (OCJ).
c. Section 19 of the Guidelines permits the court to impute income to a party if it finds that the party is earning or is capable of earning more income than they claim; if they have diverted income; or if they are not reasonably utilizing property to generate income. McIntyre v. Garcia 2021 ONCJ 29 (OCJ).
d. In Drygala the Ontario Court of Appeal set out the following three questions which should be determined by a court when considering a request to impute income:
Is the party intentionally under-employed or unemployed?
If so, is the intentional under-employment or unemployment required by virtue of the party’s reasonable education or health needs?
If not, what income is appropriately imputed?
e. The onus is on the party seeking to impute income to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. Homsi v. Zaya 2009 ONCA 322 (Ont. C.A.); Tahir v. Khan 2021 ONCJ 1 (OCJ); E.D. v. J.S. 2020 ONSC 1474 (SCJ).
f. Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. Ferlisi v. Boucher 2021 ONCJ 48 (OCJ); Lo v. Lo 2011 ONSC 7663 (SCJ); Charron v. Carriere 2016 ONSC 4719 (SCJ).
g. Intentional underemployment requires a voluntary act by the payor. But there is no need to establish a specific intent to evade child support obligations or bad faith, before income is imputed. A payor is intentionally under-employed if he or she chooses to earn less than what he or she is capable of earning. Drygala; Tanhehco v. Cao 2018 ONCJ 388 (OCJ); Cowan v. Cowan 2018 ONSC 2495 (SCJ); A.S. v. M.L. 2021 ONCJ 105 (OCJ); Szitas v. Szitas, 2012 ONSC 1548 (SCJ).
h. If the court is not satisfied that the support payor is intentionally under-employed, the inquiry ends there. Popp v. D'Entremont 2019 ONCJ 484 (OCJ); Tillmanns v. Tillmans 2014 ONSC 6773 (SCJ).
i. If intentional under-employment is established, the onus shifts to the payor to establish an acceptable reason. Jackson v. Mayerle 2016 ONSC 72 (SCJ).
j. When an employment decision results in reduced or no child support being paid, it needs to be justified in a compelling way. Riel v. Holland 2003 CanLII 3433 (Ont. C.A.); Newell v. Gaudet 2018 ONSC 55 (SCJ).
k. Section 19(1)(a) enumerates four distinct exceptions to imputing income, even where intentional underemployment or employment is found. These are:
The needs of the child of the marriage, or
The needs of any child under the age of majority, or
The reasonable educational needs of the spouse, or
The reasonable health needs of the spouse.
l. As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. Thompson v. Gilchrist 2012 ONSC 4137 (SCJ); DePace v. Michienzi 2000 CanLII 22560 (SCJ); Mitchell v Brereton 2018 ONSC 6915 (SCJ); Cuevas v. Allen 2017 ONCJ 562 (OCJ).
m. Parents must not arrange their financial affairs to prefer their own interests over those of their children. D.B.S. v. S.R.G.; L.J.W. v. T.A.R; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, [2006] S.C.J. No. 37 (S.C.C.); Jackson v. Mayerle.
n. The absence of a reasonable job search will also usually leave the court with no choice but to find that the payor is intentionally under-employed or unemployed. Filippetto v. Timpano 2008 CanLII 3962 (SCJ); T.L. v. D.S. 2019 ONCJ 809 (OCJ); McEachran v. Di Tommaso 2017 ONSC 3603; Alalouf v. Sumar 2017 ONSC 3043.
o. Parents can take jobs with less money, as long as the decision is reasonable. Charron v. Carriere; Vodden v. Furgoch 2019 ONSC 953 (SCJ); M.T. v. J.L.-T. 2018 ONCJ 654 (OCJ); Kinsella v. Theophille 2018 ONSC 5047 (SCJ).
p. If intentional under-employment is established – and if the payor cannot establish a reasonable explanation – then the court must decide what income should properly be imputed in the circumstances. What is the payor capable of earning? Popp v. D'Entremont.
q. The court has a broad discretion to impute income where a party is not working to their potential. The court must consider the payor’s capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living enjoyed during the parties’ relationship. The court must determine what income the party could earn if he or she worked to capacity. Lawson v. Lawson 2006 CanLII 26573 (Ont. CA); Burke v. Poitras 2020 ONSC 3162 (SCJ); Gill v. Gill 2020 ONSC 1176 (SCJ).
r. In exercising its discretion, the court will bear in mind the objectives of the Guidelines to establish fair support based on the means of the parents in an objective manner that reduces conflict, ensures consistency and encourages resolution. The fundamental principle is that the court must estimate the actual means which the parent has available for child support. Riel v. Holland; Manis v. Manis [2000] O.J. No. 4539 (SCJ); C.V. v. S.G. 2019 ONCJ 159 (OCJ).
s. Section 19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected must be grounded in the evidence. Drygala; D.D. v. H.D. 2015 ONCA 409 (Ont. C.A.); Fraser v Fraser 2013 ONCA 715 (Ont. C.A.); Cordi v. Cordi 2021 ONSC 128 (SCJ); Moreton v. Inthavixay 2020 ONSC 4881 (SCJ).
29With respect to the mother’s overall financial situation:
a. The father alleges the mother is hiding significant assets. He describes her as “a rich woman who sits on about $400,000.00 of cash money”.
b. He says the mother has maintained her resident status in Qatar.
c. He says in Qatar the mother had around $100,000 of savings acquired during the marriage. But when she filed for divorce in 2016, she closed her account and transferred the money to the maternal grandmother’s bank account.
d. He says the mother owned a property in Qatar which she sold on September 24, 2018. He says the mother received $770,000.00 for her property. He produced a copy of a cheque dated September 24, 2018 in that amount – but the cheque was payable to the maternal grandmother. He insists the money really belongs to the mother, and she arranged for the maternal grandmother to hide the money, so that the mother would still qualify for various government benefits in Canada, including subsidized housing.
30The mother categorically denies these allegations.
a. She says she has no hidden money or assets.
b. She denies giving her mother any money or hiding any assets with her mother.
c. She says if the proceeds of a sale were paid to the maternal grandmother, it’s because the property was owned by the maternal grandmother. The money has nothing to do with her.
31The father also suggested income should be imputed to the mother based on her lifestyle. He says she regularly travels back to Qatar for lengthy periods of time. Sometimes her husband travels with her. He says these lengthy trips would be unaffordable if the mother’s only income is from ODSP, with her husband being unemployed. The mother did not specifically explain the financial implications of her acknowledged trips.
32As should be evident by now, there is huge mistrust between these parties. And their respective situations in Canada and in Qatar are somewhat complicated – and still not fully explained.
33The legal considerations in relation to lifestyle include the following:
a. A person’s lifestyle can provide the basis for imputing income. E.D. v. J.S.; Aitken v. Aitken [2003] O.J. No. 2780 (SCJ); Jonas v. Jonas, [2002] O.J. No. 2117 (SCJ); Price v. Reid, 2013 39CJ 373 (); Lynch v. Lewis 2020 ONCJ 2 (OCJ)
b. But lifestyle is not income. It is evidence from which an inference may be drawn that a person has undisclosed income that may be imputed for the purpose of determining child support. Bak v. Dobell, 2007 ONCA 304 (Ont. C.A.); Iacobelli v. Iacobelli 2020 ONSC 3625 (SCJ); Atkinson v. Johnson.
34In this case, based on the very limited and speculative nature of the father’s evidence, I am unable to find that the mother is hiding assets or savings. Similarly, his vague and unremarkable evidence concerning the mother’s lifestyle does not allow me to make any inference as to undisclosed income.
35The father was more detailed in his assertion that the mother is capable of finding and maintaining employment.
a. He says she is a certified medical laboratory technologist. Her registration with the College of Medical Laboratory Technologists of Ontario (CMLTO) is in good standing. She passed all licensing requirements and is qualified to work in this field.
b. He says she has a Bachelor of Science degree in Medical Laboratory Science, completing the four-year program at Qatar University in 2003. She worked in that field in Qatar between 2003 and 2009.
c. He says after she moved to Canada she completed her qualifications for accreditation and professional licensing in this country within one year.
d. He says her valid licensing with the CMLTO qualifies her to work as a medical lab technologist; a medical lab technician; or as a phlebotomist.
e. He attached a summary of online job search inquiries which he made, demonstrating that there are many local job openings for medical lab technologists and technicians.
f. The father says the mother has provided no evidence that she has applied for any type of employment in any field.
g. He alleges that the mother has decided that rather than seek employment she prefers to take advantage of free benefits available from the government, including Ontario Works and subsidized housing.
36The mother says she unable to work or generate any income as a result of health problems.
a. She says she is currently receiving monthly payments through the Ontario Disability Support Program (ODSP).
b. She says the fact that she is receiving ODSP “speaks itself that no need to seek any further medical reports (sic)” and that this is enough proof that she has a serious health condition and that she cannot work.
37As it happens, the mother did provide a bit more evidence about health issues, in the form of a one page letter dated December 9, 2020 from gastroenterologist Dr. Subash Jalali, addressed to the mother’s family physician. The letter includes the following:
a. Dr. Jalali had a virtual consultation with the mother by Facetime video.
b. The mother has long-standing colitis. She had a significant flareup during her pregnancy (with her third child in 2019).
c. Some medications were considered.
d. When previously seen her disease appeared to be in clinical remission.
e. During the last 10 to 12 days the mother has reported flareups which she attributes to the stress of this court case.
f. “Given the frequent flareups with urgency she has been unable to work”.
g. “This was a virtual consultation and examination could not be performed.”
38The father did not object to the mother filing the letter, but he challenges its relevance and weight:
a. The father disputes the mother’s claim that ulcerative colitis prevents her from pursuing employment.
b. He says for many years she worked full-time despites having ulcerative colitis. She is now using this controllable medical condition as an excuse.
c. Based on his observations when he lived with the mother, he says it is simply a chronic disease which remains in remission so long as the mother takes medication.
d. He notes that Dr. Jalali’s letter is it not a medical report but a consultation note from one doctor to another.
e. He says the letter’s reference to the mother being “unable to work” was a transparent effort by a doctor trying to help a patient complaining about the stress of a court case. But the employment reference is vague; entirely based on self-reporting; and the comment about employability was beyond the scope of the gastroenterologist’s expertise or mandate.
39Upon receipt of the December 9, 2020 letter, the father immediately expressed his skepticism and requested better evidence as to any medical impediment to employment. The mother has not produced any additional evidence, despite his request.
40The legal considerations in relation to health issues and imputing income include the following:
a. There is a duty to seek employment in a case where a parent is healthy. Drygala; S.M.R. v. E.L.M. 2019 BCPC 236 (BC PC); Anyumba v. Keby 2018 ONCJ 775 (OCJ).
b. A health issue or limitation may constitute a reasonable explanation for unemployment or under-employment. But the onus is on the person advancing such an explanation to provide evidence both as to the nature and magnitude of the health problem; and also the connection between the health issue and the person’s employability or capacity to earn an income.
c. Cogent medical evidence in the form of detailed medical opinion should be provided by the payor in order to satisfy the court that his/her reasonable health needs justify his/her decision not to work. Cook v. Burton 2005 CanLII 1063 (SCJ); Stoangi v. Petersen 2006 CanLII 24124 (SCJ).
d. The payor must prove that any medical excuse for being underemployed is reasonable. Rilli v. Rilli 2006 CanLII 34451 (SCJ); Matti v. Odish 2017 ONCJ 410 (OCJ); Pecanac v. Mamado 2017 CarswellOnt 5103 (OCJ); McIntyre v. Garcia.
e. Support payors must use reasonable efforts to address whatever medical limitations they may have to earn income. This means following up on medical recommendations to address those limitations. C.V. v. S.G. 2019 ONCJ 159 (OCJ); Cole v. Freiwald [2011] O.J. No. 3654 (OCJ).
f. The receipt of ODSP or Workplace Safety and Insurance Board benefits is not sufficient proof of one’s inability to work for support purposes. Tyrrell v. Tyrrell 2017 ONSC 6499 (SCJ). The court cannot take judicial notice of any eligibility requirements for ODSP. Nor can it delegate the important and complex determinations of employability and income earning capacity to unknown bureaucrats applying unknown evidence to unknown criteria.
41In the mother’s affidavit, she stated other reasons she can’t work.
a. She says she can’t pursue employment because she has a toddler living at home, of her current relationship.
b. The father responds that the mother has been intentionally unemployed since 2015, so having a baby in August 2019 didn’t change anything.
c. He says the mother’s husband has been unemployed since his arrival in Canada two years ago. He says her husband (the father of that child) is home full-time, so he could care for the child while the mother goes to work.
d. The mother did not respond to these comments by the father. Indeed, she did not respond to much of the evidence the father presented in relation to her employability.
42The legal considerations relating to subsequent children include the following:
a. Section 19(1)(a) of the Guidelines sets out an exception to imputing income where unemployment or under-employment is “required by the needs of any child.”
b. But the birth of a child of a subsequent relationship does not automatically give a parent the right to terminate their ongoing financial obligations to previous children, by choosing to stay home with that child and not work. Podgorni v. Podgorni 2010 ONSC 1070 (SCJ).
c. The court will consider the reasonableness of the decision including the age, needs and circumstances of the child; the availability and cost of child care; and the potential income which has been declined.
d. In the absence of clear necessity, the Court must balance the needs of each child, whatever their stage of development, to determine what is fair and reasonable in all of the parental circumstances. Lachapelle v. Vezina 2000 CarswellOnt 3007 (SCJ); Scott v. Szluinska 2019 ONSC 5804 (SCJ)
e. Due consideration must be given to the financial needs of one's first family. Dean v. Dean 2016 ONSC 4298 (Div Ct).
f. In some cases it may be appropriate to impute income if a parent elects to remain off work longer than a customary (or funded) maternity or paternity leave. A. (H.) v. M. (M.) 2016 ONCJ 246 (OCJ); McCaffrey v. Paleolog 2011 BCCA 378 (BC CA).
43Surprisingly, during submissions the mother revealed that she has in fact been working. She said she never mentioned it to the father – or in her various court documents – because she didn’t think she had to.
a. She stated that between March of 2016 and February 2019 she had part-time work as a translator.
b. She has never provided proof of the income generated. She said it was never very much.
c. She said sometimes she would turn down assignments if her medical situation flared up.
d. Her fleeting disclosure left many questions unanswered – despite the mother’s obligation to answer them.
44The father presented some evidence in relation to determining an amount of income to be imputed to the mother:
a. He referred to a Government of Canada Job Bank website which lists hourly wages for a medical lab technologist in the ranges of $25.00 to $42.00 per hour, with a median of $39.00.
b. The hourly wages for a medical lab technician ranges from $16.50 to $40.00 with a median of $24.10.
c. At one point in his affidavit he proposed that an income of $50,000.00 be imputed to the mother, which he says is reasonable based on her skills, age and qualifications.
d. At another point in his materials he proposed “at least a minimum income of $30,000.00.”
e. During submissions he suggested “at least $30,000.00.” “More likely between $40,000.00 and $50,000.00.”
45The mother did not challenge the father’s numbers. She speculated that she might have difficulty finding or maintaining employment, particularly on a full-time basis. But she appears not to have investigated the availability or viability of such employment.
46In relation to the father’s request to impute income to the mother, I find the following:
a. The mother is intentionally unemployed.
b. She has failed to meet the onus of establishing that her unemployment is required by virtue of her health needs. She provided a single, minimally informative medical note which does not nearly set out the cogent evidence required to satisfy the court that her health situation justifies her decision not to seek any type of employment. She was wrong to presume that all she had to do was say she was on ODSP, and that no further evidence or explanation was required.
c. She has failed to meet the onus of establishing that her unemployment is required because she has to stay home to care for her 19 month old child of her current relationship. She provided no evidence of any specific needs in relation to the child. She gave no indication that she had explored the availability and affordability of childcare. She did not respond to the father’s suggestion that her unemployed husband could care for the child while she worked. Although I was given little evidence on this topic, I find that it would have been reasonable for the mother to re-enter the workforce as of September 1, 2020, when her child would have been a year old.
d. The mother has failed to establish any acceptable explanation for her unemployment.
e. The father has established that the mother has significant employment qualifications and work experience, which would likely enable her to find and maintain employment.
f. The father has also established a somewhat broad range of income the mother would likely be able to earn if she worked to capacity, having regard to all of her circumstances and qualifications.
g. Of the potential income numbers the father sought to impute -- $30,000.00, $40,000.00; $50,000.00 – I find that $30,000.00 is a conservative but realistically achievable number, taking into account all of the contingencies including the possibility that part-time employment might (at least initially) be more achievable; and including some allowance for missed work hours as a result of personal issues.
S.7 EXPENSES
47Apart from seeking a set-off table amount in a split parenting time case, the father also seeks contribution toward the following section 7 expenses in relation to R.A.H.
a. $2,500.00 for unspecified school expenses, to improve the child’s performance.
b. $1,500.00 for “vaping cessation” products.
c. $302.00 for a dental bill.
48In Titova v. Titov, 2012 ONCA 864 the Court of Appeal set out the sequential steps for determining whether to make an award for section 7 special or extraordinary expenses:
Calculate each party’s income for child support purposes;
Determine whether the expense in question falls within one of the enumerated categories set out in section 7 of the Guidelines;
Determine whether the expense is necessary in relation to the child’s best interests;
ii. Decide whether the expense is reasonable in relation to the means of the spouses and to those of the child and to the parties’ spending pattern prior to separation;
iii. If the expense falls under section 7(1)(d) or (f), determine if the expense meets the definition of “extraordinary;”
iv. If the court concludes that the claim is appropriate, determine the net amount of the expense after taking into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit;
v. Determine what amount, if any, the child should reasonably contribute to the payment of the net amount of the expense; and
vi. Determine how the balance of the expense after taking into account the child’s contribution, if any, should be apportioned between the parties.
49The father provided very limited information about his section 7 claims.
50I find that R.A.H.’s dental bill and S.A.H.’s pending orthodontic expense are special expenses to be shared.
51I am unable to find that the other expenses claimed by the father qualify as extraordinary expenses to be shared. The father did not establish the necessity or reasonableness of those expenses.
RETROACTIVE SUPPORT
52In D.B.S. the Supreme Court of Canada outlined several fundamental principles governing orders for child support and requests for retroactive child support. These include:
a. Child support is the right of the child and cannot be bargained away by the parents.
b. Child support should, as much as possible, provide children with the same standard of living they enjoyed when the parents were together.
c. Child support is to be calculated based upon the income of the payor parent. The obligation exceeds merely furnishing the “necessities of life.”
d. Retroactive awards are not truly “retroactive”. They reflect an obligation which existed at the time, based on ability to pay.
e. Retroactive awards are not limited to exceptional or rare cases.
53In D.B.S. the court identified four primary considerations:
Whether the recipient spouse has provided a reasonable excuse for his or her delay in applying for support.
The conduct of the payor parent.
The circumstances of the child.
The hardship that the retroactive award may entail.
54None of the above factors are decisive or take priority and all should be considered in a global analysis. In determining whether to make a retroactive award, a court will need to look at all of the relevant circumstances. The payor’s interest in certainty must be balanced with the need for fairness and flexibility.
55In Michel v. Graydon 2020 SCC 24 the Supreme Court recently revisited these principles. The commentary includes the following:
a. Parents know they are liable to pay support in accordance with the Tables, based on their actual income. They know they will be held accountable for underpayment, even if enforcement of their obligations may not always be automatic.
b. The obligation to support your child exists even if the other parent has not (yet) started a court case.
c. Retroactive child support is a debt. It represents money that should have been paid. Presumptively, the money is owing and should still be paid, unless there are strong reasons not to do so.
d. Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations.
e. The court must be aware of the gender and social dynamics which permeate child support law. When we assess the reasonableness of actions and behaviours by support recipients – and the reality is that they are predominantly women – we must take into account all of their experiences, challenges, vulnerabilities, financial limitations, fears, danger, and perceptions as to their actual options.
f. The neglect or refusal to pay child support is strongly linked to child poverty and female poverty.
g. There is nothing exceptional about judicial relief from the miserable consequences that can flow from a payor’s indifference to their child support obligations.
2 Michel v. Graydon refines the approach to be taken on the issue of delay:
a. Rather than ask whether there was a “reasonable excuse” for any delay in bringing an application, the court should examine whether the reason for the delay is “understandable”.
b. A delay, in itself, is not inherently unreasonable. The mere fact of a delay does not prejudice an application, as not all factors need to be present for a retroactive award to be granted.
c. Rather, a delay will be prejudicial only if it is deemed to be unreasonable, taking into account a generous appreciation of the social context in which the claimant’s decision to seek child support was made.
d. A delay is likely to be more understandable if it is motivated by any one of the following reasons:
Fear of reprisal/violence from the other parent.
Prohibitive costs of litigation or fear of protracted litigation.
Lack of information or misinformation over the payor parent’s income.
Fear of counter-application for custody.
The payor leaving the jurisdiction or the recipient unable to contact the payor parent.
Illness/disability of a child or the custodian.
Lack of emotional means.
Wanting the child and the payor to maintain a positive relationship or avoid the child’s involvement.
Ongoing discussions in view of reconciliation, settlement negotiations or mediation.
The deliberate delay of the application or the trial by the payor.
e. Delay by a recipient does not constitute a waiver or abandonment of a right to claim the appropriate amount of support which should have been paid.
f. It is generally a good idea to seek child support as soon as practicable. But it is unfair to bar parents from applying for the financial support they are entitled to, simply because they put their safety and that of their children ahead of their financial needs; or because they did not realistically have the ability to access justice earlier.
g. Even if the delay is unreasonable, this does not negate blameworthy conduct by the payor. Indeed, blameworthy conduct may have caused or contributed to the delay.
h. Delay is not determinative. It is one factor and should not be given undue weight.
56In Michel v. Graydon the Supreme Court provided additional direction on the issue of blameworthy conduct:
a. Courts should apply an expansive definition of blameworthy conduct.
b. While we should take a subjective approach to “reasons for delay”, when dealing with blameworthy conduct we should not focus on the payor’s intentions. Intention can be a basis on which to increase blameworthiness. But the primary focus needs to be on the payor’s actions and their consequences.
c. Blameworthy conduct is anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support.
d. Blameworthy conduct is not a prerequisite to trigger to the payor’s obligation to pay the claimed child support.
e. But where blameworthy conduct is present, it weighs in favour of an award and may also serve to expand the temporal scope of the retroactive award.
57With respect to the third D.B.S. factor – the circumstances of the child – Michel v. Graydon included the following:
a. If a child previously experienced hardship – or if the child needs support at the time of the hearing -- this weighs in favour not only of an award, but also of extending the temporal reach of the award.
b. But there need not be any determination of hardship as a pre-requisite to making a retroactive award.
c. A payor’s previous support obligation does not disappear when the child no longer requires support. Payors should not perceive an incentive to pay inadequate support, in the hope that retroactivity will hinge on the recipient’s ability to prove hardship.
d. Quite commonly the recipient parent caring for the child will personally absorb the hardship created by inadequate support. A primary care parent who prioritizes their child’s well-being should not receive less support as a result of choices that protect the child.
e. The fact that the child did not have to suffer hardship because of their custodial parent’s sacrifice is not one that weighs against making a retroactive support order. Rather, the recipient parent’s hardship, like that of a child, weighs in favour of the retroactive support award and an enlarged temporal scope.
f. The fact that the recipient will indirectly benefit is not a reason to refuse to make the retroactive award of support.
58Michel v. Graydon stated the following in relation to hardship:
a. While the focus is on hardship to the payor, that hardship can only be assessed after taking into account the hardship which would be caused to the child and the recipient parent from not ordering the payment of sums owing but unpaid.
b. If there is the potential for hardship to the payor, but there is also blameworthy conduct which precipitated or exacerbated the delay, it may be open to the courts to disregard the presence of hardship.
c. The court must remember that the payor had the benefit of the unpaid child support for the full period of time that it was unpaid. Those monies may have funded a preferred lifestyle or the acquisition of property. In contrast, if inappropriate support was being paid, the recipient parent may have been deprived of lifestyle or property opportunities, because they were forced to spend their money (and perhaps incur indebtedness) for the benefit of the child.
d. In all cases, hardship may be addressed by the form of payment.
59D.B.S. said the following in relation to the start date for support:
a. Where ordered, an award should generally be retroactive to the date when the recipient gave the payor effective notice of his or her intention to seek an increase in support payments. This date represents a fair balance between certainty and flexibility.
b. An earlier date may be appropriate if there is blameworthy conduct by the payor.
c. But generally a retroactive award should not commence earlier than three years before formal notice was given.
d. Effective notice is defined as any indication by the recipient parent that child support should be paid, or that a current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done, the payor can no longer assume that the status quo is fair.
e. But the date of effective notice is not relevant when a payor parent has engaged in blameworthy conduct.
60In Michel the Supreme Court suggested that rather than ordering retroactive support back to the date of effective notice, it may now be time to simply start ordering payors to pay what they should have paid, as a matter of course.
a. Payors have an absolute – not a contingent – obligation to support their children in the amount set out in Child Support Guidelines, pursuant to a now long-standing, well-publicized family law regime.
b. By now, every parent should understand that the amount of child support you pay is based on the amount of income you earn. It’s a simple, logical concept.
c. If the obligation by the payor and the entitlement by the child are both absolute and unconditional, it makes little sense to invite more complication – and litigation – by adding a condition that “mandatory payments” are only “payable” if the recipient does certain specific things to ask.
ANALYSIS
61Much of the commentary in Michel repeats a very simple theme: Pay what you should have paid.
62But unchanged in the Supreme Court’s latest directive is recognition of the need for flexibility and a holistic view of each matter on its own merits.
63My considerations on the issue of retroactivity include the following:
a. The March 24, 2017 consent order is the starting point. $408.00 per month was ordered as child support based upon a modest imputed income of $28,000.00. At that point it was clear to both parents that the amount of child support was based the father’s income.
b. The final order included the requirement that the father provide the mother with his income tax disclosure annually by June 1st. The mandatory requirement for this ongoing disclosure should have reinforced the awareness by both parents that the amount of child support was tied to the father’s income – and implicitly that the amount of child support would change if the father’s income changed.
c. The father says he mailed the mother his tax information by June 1st in each of 2017, 2018 and 2019, but he has no proof. The mother denies this and says he didn’t make his disclosure until after he was served with her motion to change in October 2019. Clearly the onus is on the payor to prove that they produced the disclosure at the required times.
d. I find that this failure to produce his annual income disclosure falls into the “blameworthy conduct” category, particularly since it is clear that immediately after the 2017 order his income went up.
64If that was the end of the story, the mother would likely be entitled to all of the retroactivity she is seeking. But there are additional considerations:
a. After the March 2017 order was made – and while he was still making his $408.00 month payments – at the mother’s request the father purchased airline tickets for the children so that they could accompany her on annual summer vacations to Qatar. In 2017, 2018 and 2019 he paid a total of $8,455.48. That’s a large amount of money – almost the total amount of “underpayment” the mother is seeking for the period January 1, 2018 (her proposed commencement date) to October 2019 (when she served him with her motion).
b. The father’s behaviour in voluntarily paying for these annual vacations is quite the opposite of blameworthy conduct. The mother asked him to pay for something that was of significant benefit to the children; arguably some benefit to her (in that she got to vacation with her children); and of no benefit to himself. It is the opposite of “conduct which privileges the payor parent.”
c. Even if the mother is correct in saying that the father hadn’t produced his annual tax returns, it is clear that the mother was having ongoing communications with the father about children’s financial issues. And it is clear that she must have had some understanding that the father’s financial situation had improved, to allow him to make these expenditures.
d. On other topics the mother admits the father advanced certain money for the children, but she says those expenditures had nothing to do with her. And on those topics I agree with her that extra payments she wasn’t involved with shouldn’t affect the child support she is entitled to.
e. But it seems highly unfair for the mother to specifically ask the father for $8,455.48 – and then within months of his making the final instalment in 2019, she brought a motion basically asking for the same amount again.
65Beyond that, there are the additional monies the father has paid.
a. As stated, on a balance of probabilities I find that the father paid the mother $6,000.00 as child support in September 2018.
b. Even without that credit there would be virtually no arrears as of October 2019 when he was served with the motion.
66If you total the $6,000.00 with the $8,455.48, it is arguable that the father has in fact made a considerable overpayment of child support. The father seeks credit for an overpayment.
67However, just as I feel retroactivity prior to October 2019 would be unfair to the father, I also feel credit for an overpayment extending beyond October 2019 would be unfair to the mother.
a. These parents have used our court system very selectively.
b. In March 2017 they obtained a final order.
c. In October 2019 the mother returned to court with a motion to change.
d. Between those two dates the parties clearly made all sorts of financial arrangements among themselves. They dealt with one another freely, regularly, and with no apparent power imbalance.
e. There is a limit to the extent to which the court can be expected to unscramble the financial situation the parties created despite the court order we gave them.
f. In the circumstances, I feel it is appropriate to make a prospective order as of October 2019, when the matter was returned to court.
g. If parents choose to make their own side deals – in this case including a significant payment in another country – they do so at the risk that the court may not be prepared to re-open and re-write their agreements.
68The caselaw in relation to retroactive child support is voluminous and at times ponderous. And even though the Supreme Court decision in Michel doesn’t really reduce the legalese, it conveys perhaps more clearly that the objective is to focus on support payors and determine whether they have acted honourably and responsibly with respect to their children.
69To bluntly use the vernacular, this father is no “deadbeat dad.” Far from it.
a. Cumulatively he has more than ensured that his children have benefited from any increase in his income.
b. He has contributed money repeatedly, voluntarily, and in significant amounts.
c. At every stage he appears to have been generous and responsible with respect to his children.
d. And he stepped up immediately – and completely reorganized his life at personal inconvenience and expense – when he had to take charge of the older daughter R.A.H. in February 2020.
THE ORDER
70The order:
a. The mother’s motion for a retroactive increase in child support prior to October 1, 2019 is dismissed.
b. For the months of October, November and December 2019 and the father shall pay to the mother support for the two children R.A.H. and S.A.H. in the sum of $1,101.00 per month based upon his 2018 income of $72,270.00.
c. For the month of January 2020 the father shall pay to the mother support for the two children R.A.H. and S.A.H. in the sum of $1,402.00 based upon his 2019 income of $94,277.00.
d. Commencing February 1, 2020 the father shall pay to the mother support for the child S.A.H. in the sum of $865.00 per month based upon an income of $94,277.00.
e. Commencing September 1, 2020 the mother shall pay to the father support for the child R.A.H. in the sum of $256.00 per month based upon an imputed income of $30,000.00. Accordingly, as of September 1, 2020 the net set-off payment by the father to the mother shall be $609.00 per month.
f. The father shall receive credit for all payments he has made pursuant to the March 24, 2017 order.
g. Any arrears owing to the father by the mother shall be immediately deducted from any arrears the father owes the mother as a result of the increases in child support herein.
h. The father’s motion for spousal support is dismissed without prejudice to it being pursued as a fresh application.
i. The $302.00 dental bill in relation to R.A.H. shall be paid 80% by the father and 20% by the mother (in the proportions set out in the order of March 24, 2017).
j. The child S.A.H.’s orthodontic expenses (anticipated to be between $6,500.00 and $8,000.00); and any other section 7 expenses shall be shared between the parties 75% payable by the father, and 25% payable by the mother.
k. The parties shall exchange copies of their tax returns and notices of assessment annually by June 1, commencing June 1, 2021.
l. Commencing immediately and until the mother obtains employment at the rate of at least $30,000.00 per year, the mother shall maintain a daily diary of all efforts she makes to obtain employment, including particulars as to employment inquiries; applications; responses; interviews; employment offers; employment obtained; hours of employment; and any income. The mother shall provide the father with an updated copy of her job search summary and all documents sent or received, by the 10th day of each month (in relation to the preceding calendar month), commencing May 10, 2021 (in relation to job searches up to April 30, 2021). In the event that the mother has not secured regular full or part-time employment by December 1, 2021, either party may have the issue of imputing income returned by way of motion.
m. Support deduction order.
71If either party wishes to address any clarification or mathematical correction, or any residual issue (such as costs), the parties should contact the Trial Coordinator to arrange a 30 minute attendance by Zoom to be spoken to.
Pazaratz J.
Released: March 24, 2021
COURT FILE NO.: 954/16
DATE: 2021-03-24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Arwa Abumatar
Applicant
- and -
Ayad Abou Hamda
Respondent
REASONS FOR JUDGMENT
The Honourable Mr. Justice A. Pazaratz
Released: March 24, 2021
