COURT FILE AND PARTIES

COURT FILE NO.: FS-18-0032-00

DATE: 2021-07-22

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Asma KAUSAR, Applicant

AND:

Rehan MUHAMMAD, Respondent

BEFORE: Kurz J.

COUNSEL: Asma Kausar, Self-Represented Applicant

Moxi Sahi, for the Respondent

HEARD: April 15, 16, & 20, 2021

ENDORSEMENT

[1] The Respondent husband, Rehan Muhammad (the “Husband”), brings a motion to change the child and spousal support terms of the final order of Tzimas J. dated November 27th, 2015 (the “Tzimas J. order”). He seeks to terminate all past, present and future child and spousal support obligations to the Applicant wife, Asma Kausar (“the Wife”) set out in the Tzimas J. order. The trial of this motion to change took place over three days, with each party’s evidence in chief offered by affidavit.

[2] The relevant support terms of the Tzimas J. order incorporated certain paragraphs of the temporary order of Edwards J. of September 3, 2015, making them final. Those terms included:

1. The Husband shall have income imputed to him of $60,000 per annum;

2. The Husband shall pay to the Wife child support for the three children of the marriage of $1,168 per month, commencing September 3, 2015;

3. The Husband shall pay to the Wife spousal support of $1,419 per month;

4. The Husband’s child support arrears are fixed at $30,368, from September 3, 2013 to October 1, 2015;

5. The Husband’s spousal support arrears are fixed at $36,894.50, from September 3, 2013 to October 1, 2015;

6. The Husband’s 50% share of the proceeds of sale of the parties’ matrimonial home (“the home”), shall be released to the Wife, along with her share of those proceeds.

7. Costs of the previous motions, fixed at $1,000, shall be enforced as child support by the Family Responsibility Office.

8. Interest is payable on any arrears of 2% per annum from the date of default.

[3] Neither the Husband nor his lawyer (whose motion to be removed from the record had been adjourned to November 27, 2015) appeared at the summary judgment motion. Tzimas J. found that the Husband had filed an answer with incomplete financial disclosure. She further found that he failed to make any further disclosure or to comply with five different orders, dated February 7, 2014, May 16, 2014, August 11, 2014, July 8, 2015 and September 3, 2015. As set out below, the last four of those orders all required the Husband to make financial disclosure. He consistently failed to provide all of the disclosure required of him, although he produced some documents, not all of which were legible, as set out below.

[4] The Husband argues that the Tzimas J. order is wrong (although he failed to appeal it or move to set it aside). He adds that he never made the income imputed to him. He further asserts that in any event, he has suffered a material change in circumstances that has led him to be presently unable to work. He is presently in receipt of public assistance benefits in Alberta. He requests that he not be required to pay any prospective support for any of the parties’ children and the Wife.

[5] The Husband claims this relief even though:

1. He owed the Wife over $67,000 in arrears of support at the time of the Tzimas J. order. That sum arose because he appears to have refused to voluntarily pay her any court-ordered temporary support after the parties separated.

2. Tzimas J. found that he had failed to produce the disclosure he had been ordered to provide to the Wife.

3. He offered no evidence that he ever voluntarily paid support to the Wife in accord with the Tzimas J. order.

[6] In addition to seeking to eliminate any support obligations to the Wife and his children, the Husband also moved to change the final custody and access order of Ricchetti J. of August 11, 2014. That order granted the Wife sole custody of the parties’ three children and granted him limited day access. Even though he was residing in Alberta and had not seen the children since 2013, he sought sole custody of them. In a Voice of the Child report dated November 4, 2019, the Office of the Children’s Lawyer reported that the children, then 16, 13 and 8, had no desire to see him. On November 24, 2020 the Husband withdrew his claim for sole custody. At the start of this trial, he withdrew his claim for access to the children.

[7] I heard the evidence of the parties in this matter and received their oral and written submissions. On June 16, 2021, I offered the parties the opportunity to offer supplementary submissions based on the recently released decision of the Supreme Court of Canada in Colucci v Colucci, 2021 SCC 24, 2021 SCJ 24 (“Colucci”), regarding “the appropriate framework for determining applications to retroactively decrease the amount of child support owing or forgive child support arrears under s. 17 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). As a result, I received a written submission from the Husband’s counsel but not from the Wife. The Husband’s submissions were, to put it mildly, not helpful or responsive. I will have more to say about my concerns regarding the Husband’s two sets of written submissions below.

Issues

[8] This case raises the following issues:

1. May I entertain the Husband’s argument about alleged errors in the Tzimas J. order?

2. Has the Husband demonstrated that there has been a material change in circumstances since the time of the Tzimas J. order?

3. If there has been a material change in circumstances since the Tzimas J. order, what is the appropriate remedy?

[9] For the reasons that follow, I find that it is not open to me to sit in effective appeal of the Tzimas J. order. Further, the Husband has failed to meet the onus upon him to prove a material change in circumstances since the time of the Tzimas J. order. He has failed to prove that the basis of Tzimas J.’s imputation of income to him (intentional underemployment and failure to provide information, i.e. financial disclosure, when under an obligation to do so) has materially changed. I set out below the amounts that the Husband owes to the Wife for each of past spousal and child support.

[10] Accordingly, I dismiss this motion to change.

Litigation History of this Proceeding

[11] Because of Tzimas J.’s final order adopted many of the terms of the temporary order of Edwards J., the history of this proceeding offers important context to the Tzimas J. order. The following orders preceded the Tzimas J. order:

1. October 7, 2014 (identity of presiding Justice indistinct from endorsement provided to court): The court ordered that: the motion could proceed without a case conference, the realtor for the sale of the home to disclose all details of the sale of the matrimonial home arranged by the Husband, the real estate lawyer handling the sale transaction hold the proceeds in trust pending further order, the Wife may register a matrimonial home designation against the matrimonial home; and that the Husband may be served with court materials through his real estate agent as he could not be found and was facing criminal charges of assault and threatening death against the Wife.

2. May 16, 2014 (Price J.): The Wife to have temporary and without prejudice sole custody of the parties’ three children. The balance of the motion was adjourned to August 11, 2014, with directions given for the exchange of further motion materials. The Husband was also ordered to deliver to the Wife the following documents by June 30, 2014: his completed sworn financial statement, completed 2010 – 2013 tax returns with all schedules and attachments, and his notices of assessment for 2010 – 2012, with his 2013 notice of assessment to be provided forthwith upon receipt.

3. August 11, 2014 (Ricchetti J.): Two separate orders were made by Ricchetti J. on August 11, 2014, one of which was based upon minutes of settlement. The Wife was granted permanent sole custody of the parties’ three children, subject to the Husband’s day access each Sunday from 10:00 a.m. – 4:00 p.m. Each party entitled to proceed to uncontested divorce; Each party entitled to $2,500 from the net proceeds of sale of the matrimonial home. The Husband was again ordered to provide his 2011 – 2013 notices of assessment and his 2010 – 2013 income tax returns with all schedules and attachments; this time by August 31, 2014.

4. July 8, 2015 (identity of presiding Justice indistinct from endorsement provided to court): The Husband was required to produce within 15 days: copies of the financial disclosure called for in the August 11, 2014 order of Ricchetti J.; his 2014 notice of assessment and income tax return; as well as his pay stub indicating his income to date for 2015. The Wife was to notify Ontario Works of the funds held in trust from the sale of the matrimonial home.

5. September 3, 2015 (Edwards J.): The Husband was ordered to pay child support of $1,168 per month, and spousal support of $1,419 per month. This amount “without prejudice to the proper amount payable and the imputed income on which it is based when there is better evidence available”. Both parties had asked that Edwards J. impute income to the Husband. The Wife sought an imputation of $80,000 per year, while the Husband sought an imputation that “will attract little if any support under the Federal Guidelines”.

Edwards J. ruled that the affidavit of the Husband, purportedly sworn in Alberta, where he had moved, was inadmissible. The signature and details of the alleged commissioner of the affidavit were illegible and there were no markings to identify the “qualifications’ of the commissioner.

Edwards J imputed income of $60,000 per year to the Husband on the premise that he would not have moved to Alberta for a lesser paying job. If he had, he would be intentionally underemployed. Edwards J. was also “troubled” that the Husband had failed to disclose his 2013 and 2014 notices of assessment “despite 2 if not 3 previous orders that he do so.” That raised the suspicion that he was earning more than he is willing to voluntarily disclose and allowed for an imputation under s. 19(1)(f) of the Guidelines. That provision allowed the court to impute income to the Husband, based on his failure to provide disclosure when under a legal obligation to do so.

Background

[12] Both parties immigrated to Canada from Pakistan, where the Husband obtained a university engineering degree. They married on July 29, 2002. They have three children, KR, born July 6, 2003, IR, born April 4, 2006 and HR, born November 13, 2010. They separated on August 20, 2013, when the Husband was charged with assaulting the Wife and threatening to kill her. The Wife and children then spent the next three months in a Salvation Army women’s shelter. The Husband’s last in-person contact with the children appears to have take place in 2013. I have been provided with no evidence that he has had contact with the children since then.

[13] I have also been provided with no evidence of the results of the criminal charges of assault and threat against the Wife, other than that he was convicted of a crime and placed on probation.

[14] During the course of the parties’ marriage, the Husband was the sole breadwinner. The Wife appears to have always been the children’s primary caregiver. In his change information form, the Husband claims that the Wife refused to allow him access despite a court order that granted him day access. Yet no evidence before the court shows that he ever moved to enforce any access order. Further, he chose to move to Alberta in 2015, while the children remained in Ontario. As set out below, his move does not appear to have been based on a desire to better support his children.

[15] Before he moved to Alberta, the Husband attempted to sell the matrimonial home without the knowledge of the Wife. That led her to bring an urgent motion and obtain the order of October 7, 2014, cited above, which required disclosure of the sale details to the Wife and prohibited the release of any sale proceeds without further order.

[16] While the evidence presented at trial regarding the parties’ lives together is far less than fulsome, it appears that the Husband held two different jobs in the later years of the marriage. He worked for Colt Engineering at a job that paid $60,000 per year. The proof of that job, which was presented to Justices Edwards and Tzimas, was an employment letter from Colt Engineering to the Husband, dated July 9, 2008, setting out his income at $5,000 per month.

[17] The Wife testified that the Husband was making “good money” during the marriage. She says that after he started his job at Colt Engineering in 2008, they decided to buy a house in 2009, signed the purchase agreement in 2010 and closed the transaction later in 2010. The Wife placed the Husband’s 2009 notice of assessment into evidence. It shows that he earned $62,832 that year. She also produced an invoice from the Professional Engineers of Ontario for the fee required to maintain his P. Eng. Certification. The invoice was addressed to the Husband at the matrimonial home. The Wife says that he told her that he made the payment to maintain his P. Eng. certification.

[18] The Husband denies that he ever worked as an engineer. However, during the trial, he admitted to having been what he described as a conditional member of the Professional Engineers of Ontario. The invoice from that organization made no reference to his membership being conditional. At trial, the Husband claimed that he could not obtain the requite engineering experience and that this licence was revoked because he was laid off by Colt Engineering. He provided no independent evidence of any of this. He further failed to explain whey he held a membership with the Professional Engineers of Ontario if he never worked in this province as an engineer. He also failed to explain why, if he was not employed as an engineer, he lost that membership when he was allegedly laid off by Colt Engineering.

[19] Besides engineering work, the Husband worked as an insurance broker and salesman, earning, he says, about $20,000 per year. The Wife says that he held the two jobs, engineer and insurance agent/broker, simultaneously, while the Husband denies the claim.

[20] The Husband says that he was selling insurance out of the home at the time of separation and continued to do so in the year 2014. He then moved to Alberta in 2015, where he ultimately received a job in a gas station in 2016. He says that his insurance license expired after he left Ontario but that his salesmanship skills survived. He testified that he used those sales skills in his gas station job, but later conceded that that his job was as a cashier.

[21] The Husband offered no helpful answer to explain his rationale for the move to Alberta. All that he could say was that he moved to a new city and province because there was “nothing left” for him in Ontario. Yet his three children remained in Ontario. He was entitled to access to them and obliged to support them (and the Wife). I add that there is no evidence that there was anything waiting for the Husband in Alberta. Certainly nothing by way of employment. His evidence is that he earned no income at all in 2015, the year of his move. He claims to have earned $10,756 in 2016, presumably after commencing his gas station job. He claims to have earned $24,935 in 2017 from employment and employment insurance (“EI”) benefits, $32,982 in 2018 from EI and social assistance and $8,940 per year in social assistance since that time.

[22] The Husband offered no evidence that the move to Alberta enhanced his employment prospects, a point that is relevant to the issue of continued intentional underemployment. He has offered no evidence regarding his job searches while in Alberta.

[23] The Husband testified that he was laid off from his gas station job in 2017 because he was suffering from depression and anxiety. But he also says that he was laid off because he was making too many mistakes at work. He squares this inconsistency by saying that he made the mistakes because of his mental illness. Other than his oral evidence, the only other evidence of that illness and its tie to his unemployment was his employer’s Employment Insurance record of employment (“ROE”). It referred only to him leaving his job because of “illness or injury”. He says that he has not worked since then. The Husband provides no medical evidence of his alleged disability in 2017. He also failed to called the person who filled out the Notice of Employment, Bobby Singh (whose name and telephone number are listed on the ROE), as a witness at this trial, to confirm the reason that he left his gas station job. Mr. Singh’s testimony would have been easily available, even from Alberta, during this Zoom trial.

[24] The Husband first received Employment Insurance and then, when that ran out, began to receive social assistance from the Province of Alberta in 2018. He states that provincial social assistance remains his sole source of income. He does not appear to have applied for a CPP disability pension, although he offered no reason for that failure. He says that he is presently living in a rented room while paying $390 per month in rent.

[25] The Husband argues that the proof of the veracity of his claims of illness and inability to work is the fact that the Government of Alberta granted him social assistance and that Legal Aid provided a certificate for this trial. However, I note that he has not filed any of the documents that he relied upon in his applications for social assistance and Legal Aid. The Husband also points to the record of employment issued by his gas station employer in 2017, which says that the reason for his termination is illness.

The Husband’s Post-Separation Income

[26] The Husband claims that his income from 2015 onward is:

2015: $0

2016: $10,756 employed

2017: $24,935 employment plus EI

2018: $32,982 employment plus EI and social assistance

2019 $8,940 social assistance

2020 $8,940 social assistance.

The Husband testified that he expects to earn a further $8,940 in 2021.

[27] The Wife rejects all of the Husband’s allegations regarding his post-separation income. She argues that the 2015 imputation of income should continue. In cross examination, the Husband’s counsel asked the Wife why she believed that the Husband was still earning $60,000 per year. The Wife pointed to two factors: his previous lifestyle and his previous employment. With regard to lifestyle, she listed the fact that he was the sole support for their family of five. Yet that owned a 1,400-1,500 sq. foot home with four bedrooms and two further bedrooms in the basement, a Honda CRV vehicle, a community recreational centre membership, swimming lessons for the children. They had what she describes as a “good life”.

[28] With regard to his other employment, the Wife testified that the Husband had a life and general insurance broker’s licence. He sold life insurance, which allowed him to increase his income. Between Monday and Friday, he left home at 7:00 am and returned at 5:30 p.m. unless he was working late. He told her of his sales, and she saw many of his commission cheques, received by mail at their home. The Husband further took the P. Eng. exams in 2006 and passed the written exam in 2007. He showed her the transcript, showing his passing grade. That pass and the consequent credential was good news. Thereafter, the Husband paid his dues to continue to maintain his P. Eng. certification. The invoice from Professional Engineers Ontario that the Wife introduced into evidence at this trial was dated April 12, 2011. It covered his membership until April 30, 2012.

[29] The Husband testified that he had many debts while the parties were together, particularly a line of credit. The Wife conceded that that was the case, but blamed it on his profligate spending on other women, with whom he had affairs. Neither party provided any evidence of this line of credit.

[30] The Wife conceded a paucity of evidence of the Husband’s employment in Alberta, other than the Linked-In profile described below. She explained that even before he left for Alberta, he was, in her view, very controlling. He placed everything in his name, including the house (which he attempted to sell after the parties separated, without informing her) and the car. She was not allowed to work during the marriage.

[31] With regard to her own circumstances, the Wife stated that she started working a year after separation, with jobs in the medical and customer service fields. From 2016 onward, she worked full or part time on a minimum wage job at an organic food store. Her hours of work depended on the health, needs and activities of the parties’ children. The Wife was laid off at the advent of the pandemic in March 2020. By the time of the trial, she was in receipt of CERB benefits, receiving $1,800 per month plus the child tax benefit. That benefit was scheduled to decrease in July 2021, when her oldest child turns eighteen. She and the children reside in subsidized housing in Burlington. In 2016 she married a Pakistani man in an arranged religious marriage. But she has been unable to bring him to Canada. She lives alone, with her children.

[32] Since separation, the Wife and the children have travelled outside of Canada two or three times, including to Pakistan for her wedding. She received about $40,000 in total from the sale of the home. About half of this money went to her lawyer. After Ontario Works was repaid for benefits advanced to her, she was left with $11,000.

Admissibility and Weight of the Evidence of Dr. Chohan

[33] The Husband says that his mental health has disabled him from working since 2017 and that he remains totally disabled. He testified that he has suffered from depression and generalized anxiety, which began to manifest themselves in 2017. He says that his depression affected his concentration and ability to focus. This resulted in “poor decision making”, and mood swings. His mood ranged from normal to depressed to fatigue, and from fatigue to normal. His anxiety manifested itself as excessive wariness, panic, anxiousness, flashbacks, low appetite, and low sleep. He states that he received therapy and “high dose” medication for his ailments.

[34] The Husband places great reliance on two brief notes by a psychiatrist who treated him, Dr. Inderjit S. Chohan. The two notes, dated, October 28, 2020 and March 3, 2021 are virtually identical. Each is three sentences long and bereft of details. The October 28, 2020 note states:

This is to confirm that Mr. Muhammad is under my care. He has been having difficulties with major depressive disorders and generalized anxiety disorder, and as a result is not able to work at this time. He is currently on medication and will start counselling.

Dr. Chohan’s second note is identical, except that rather than concluding with the statement that the Husband “will start counselling”, it states that he “started counselling”.

[35] Dr. Chohan offers no details of when she started to see the Husband for counselling, how often she sees him, what medications she has prescribed, what type of counseling he receives, how often he receives it, or even what steps are being taken to assist him to return to work.

[36] The husband failed, without explanation to call Dr. Chohan to testify. He also filed no curriculum vitae for Dr. Chohan. The only evidence, if it can be called that, if Dr. Chohan’s expertise is the heading on her two notes, which read:

Dr. I.S. Chohan MD FRCPC

Psychiatrist

[37] I advised the Husband and his counsel that I was not inclined to allow these notes into evidence without hearing the oral evidence of Dr. Chohan. I did so because I questioned whether they were admissible on their own. I stated that even if they were admissible, I would likely give them little weight without hearing from Dr. Chohan. Nonetheless, she was not called to testify. No further evidence or clinical notes and records regarding the Husband’s mental health were filed at trial. Nor were any authorities offered for the admissibility and reliance on the two notes from Dr. Chohan.

[38] In preparing these reasons, I have reviewed the law that applies to my consideration of the admissibility of Dr. Chohan’s notes.

[39] Prima facie, these two notes are inadmissible hearsay in the absence of the oral evidence of their author. However, s. 52 of the Evidence Act, R.S.O. 1990, ch. E. 23, as amended, is designed to allow the admission of medical “reports” into evidence without the testimony of their author, provided that certain conditions are met. The relevant provisions are as follows:

Reports and evidence of practitioners

Definition

52 (1) In this section,

“practitioner” means,

(a) a member of a College as defined in subsection 1 (1) of the Regulated Health Professions Act, 1991,

(b) a drugless practitioner registered under the Drugless Practitioners Act,

(c) a person licensed or registered to practise in another part of Canada under an Act that is similar to an Act referred to in clause (a) or (b).

Medical reports

(2) A report obtained by or prepared for a party to an action and signed by a practitioner and any other report of the practitioner that relates to the action are, with leave of the court and after at least ten days notice has been given to all other parties, admissible in evidence in the action.

[40] To the extent that her two notes are admissible evidence as “reports” under s. 52 of the Evidence Act, Dr. Chohan is a “participation expert, as set out in r. 20.2 of the Family Law Rules.[^1] That term is defined in the rule as:

A person who is not engaged to provide expert opinion evidence for the purposes of litigation, but who provides expert opinion evidence based on the exercise of his or her skills, knowledge, training or experience while observing or participating in the events in issue.

[41] The definition and the role of the participation expert arise from the decision of Simmons J.A. of the Court of Appeal for Ontario in Westerhoff v Gee Estate, 2015 ONCA 206, where she wrote:

[60] Instead, I conclude that a witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents without complying with rule 53.03 where

• the opinion to be given is based on the witness' observation of or participation

in the events at issue; and

• the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.

[42] In Girao v. Cunningham, 2020 ONCA 260, a civil case, Lauwers J.A., writing for the court, spoke of the admissibility of the evidence of a participation expert in light of Westerhoff, as follows:

39 The threshold requirement for the admission of expert evidence has four elements: the evidence must be relevant; it must be necessary in assisting the trier of fact; no other evidentiary rule should apply to exclude it; and the expert must be properly qualified, assuming there is no novel science issue. Then the trial judge must execute the gatekeeper function. See White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 19. See also R. v. Abbey, 2017 ONCA 640, 140 O.R (3d) 40, per Laskin J.A., at paras. 47-48. These four threshold elements implicitly give rise to another element: Can a person who has expertise, but who is not qualified as an expert witness under r. 53.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, still provide opinion evidence?

40 The short answer is that such a person can give opinion evidence as this court affirmed in Westerhof v. Gee Estate, 2015 ONCA 206, 124 O.R. (3d) 721, leave to appeal refused, [2015] S.C.C.A. No. 198. It was a case about the quantum of damages for injuries suffered in a car accident. Simmons J.A. identified two types of witnesses with special expertise who can provide opinion evidence but who are not expert witnesses as described in r. 4.1.01 and Form 53: The first are "participant experts," who form opinions based on their participation in the underlying events, such as treating physicians. …

(See also the analysis of Findlayson J., then of the Ontario Court of Justice and now of this court’s Family Court, in J.K.L.D. v W.J.A., 2020 ONCJ 335, at para. 50-55, 92.)

[43] Here there are a number of reasons to question whether the two notes qualify as s. 52 reports and whether they are admissible in evidence at trial. They are:

1. Without a C.V. from Dr. Chohan or any other evidence, I have no real evidence of her expertise. I do not know, for example, whether she is licenced to practice in Alberta.

2. Further, even if she is qualified to practice psychiatry, there is no evidence before me that sets out the breadth of her qualifications. In particular, I have been provided with no evidence that tells me why and to what extent Dr. Chohan is qualified to offer expert opinion about the Husband’s inability to work, presumably at any job.

3. Dr. Chohan’s notes are so lacking in detail that they raise the question of whether they can be properly described as reports. The clear purpose of s. 52 of the Evidence Act, which allows the admissibility of expert reports notwithstanding the hearsay rule, is to avoid having medical experts unnecessarily testify at trial. That process wastes the experts’ precious time and their patient’s money. The point is made in s. 52(5), which allows the court to punish a party with costs if they call an expert to testify and “the court is of the opinion that the evidence could have been produced as effectively by way of a report”. But when the reports that are supposed to take the place of oral testimony are as conclusory as the two notes of Dr. Chohan, it is hard to see how they can take the place of oral testimony.

[44] Having considered all of the above, I note that the Wife did not raise any objections to the Husband’s reliance on Dr. Chohan’s two notes. Nor did the Husband raise any arguments in favour of their admissibility. Further, there is authority for a broad interpretation of the term “report”. For example, in Peel (Board of Education) v. B.(W.), 1987 4265 (ON SC), 59 O.R. (2d) 654 (Ont. H.C.), Reid J. explained why he was adopting a broad interpretation of the term, report, within the context of s. 38(1)(a) of the Young Offender’s Act, as it then was. That provision prohibited the “publication of a report of an offence committed or alleged to have been committed by a young person if the identity of the young person will be disclosed.” Reid J. reasoned as follows at para. 16:

A report is commonly understood to mean an account of an event. It can be either oral or written. Even an act or gesture that conveys information without words could amount to a report. A thumbs-down gesture made by a person leaving a court-room where a murder trial has occurred would indicate a guilty verdict to most people. A puff of black smoke from a Vatican chimney conveys the news that a pope has been elected. The section invites a broad interpretation through its use of the phrases "by any means", and "any report".

[45] But even assuming that Dr. Chohan is qualified to practice psychiatry in Alberta and that her two notes qualify as reports under s. 52 of the Evidence Act, my concerns about the weight to give to the two notes remain. In that regard, I cannot ignore the following:

1. Dr. Chohan’s two notes omit any detail about:

a. when the Husband first attended at Dr. Chohan for treatment,

b. the Husband’s symptoms,

c. when and how they manifest themselves,

d. what treatment she offered to him,

e. how often she saw or treated him,

f. what progress, if any he has made, and

g. the prospects for future improvement.

2. The issue of the level of detail of the medical evidence that the Husband was relying upon was addressed by Coats J. at a conference on February 4, 2020. In her endorsement of that date, she wrote that the Husband: “shall obtain a more comprehensive medical report if his position is that he is medically unable to work.”

3. I know little about Dr. Chohan’s qualifications, other than her title of “psychiatrist”. Since she appears to be saying that the Husband is unable to work at any job, I do not know why she has the expertise to offer that opinion and equally important, why, other than a broad diagnosis, she offers that opinion.

[46] In the Husband’s written submission regarding the application of the principles in Colucci to this case, his counsel attempted, without notice or leave, to submit another note from another one of the Husband’s treating physicians, dated June 21, 2021. The note is authored by a Dr. Abdul Kamran. His credentials are not set out in the note. It states:

This letter is to confirm that I saw the above-mentioned patient on 2021-Jun-21.

He has central retinal vein occlusion and not able to work.

Please feel free to contact me if you have any further issues.

[47] Dr. Kamran’s note is not properly in evidence. No motion has been made to reopen the evidence at this trial. The court has been offered no previous evidence regarding the Husband’s alleged eye condition and is unable to comment on whether it could have been raised during the course of the trial. Further, Dr. Kamran’s note fails to meet the notice requirements of s. 52 of the Evidence Act. Unlike the notes of Dr. Chohan, the court has not been advised of Dr. Kamran’s specialty, if any. Even if it were, it would raise the same issues as the two notes from Dr. Chohan. I do not admit it into evidence simply on the basis of its attachment to a written legal argument and do not consider it any further in preparing these reasons.

Admissibility of a Printout of the Husband’s Linked-In Profile

[48] Another key evidentiary issue in this trial is the Wife’s tender into evidence of a printout of a Linked-In profile which purports to be that of the Husband. The profile has a photo of the Husband, which the Wife says is a good representation of his facial image. It sets out information about the Husband’s training and work experience since the time of the Tzimas J. order that differs from his own evidence. It also includes accurate details about his employment and educational background prior to the time of the Tzimas J. order.

[49] The Linked-In profile was downloaded in 2019 by Linda Lysco, a worker for the Region of Halton’s Social and Community Services Department. Ms. Lysco’s job calls for her to assist recipients of social services and social housing, such as the Wife, with court matters. Ms. Lysco testified that she has her own Linked-In profile, which she uses, both to assist clients, as she did for the Wife, and for her own career. Many people with the Region of Halton, including her CEO, use the online business and employment service.

[50] During the course of her employment, Ms. Lysco uses her Linked-In account to search out the profiles of the spouses of the Region of Halton clients whom she assists. While some Linked-In profiles may be embellished, she believes that its profiles can be believed. The LinkedIn profile downloaded by Ms. Lysco describes the Husband as a “5th Class Power Engineer”. Below that description is a section entitled “About”. It states:

About

5th Class Power Engineer with Mechanical Engineering background having 3 years’ experience in Building Operations & Maintenance, repair, troubleshooting and inspection of Boilers, HVAC, Refrigeration, Plumbing, Electricity & General Maintenance; ensuring safe & efficient operation & maintenance of industrial equipment

• Effective Coordinating experience among Departments, Customers/Tenants, Contractors, Suppliers …see more

[51] The profile lists the Husband’s employment experience, which is confined to his time in Alberta, as follows:

1. “5th Class Power Engineer” Building Operations & Maintenance @ Mc Phil Energy Centre – Southern Alberta Institute of Technology (SAIT)”. It gives the dates for that job as “12/31/2017 -12/31/2018 – 1 yr”. The profile then lists the responsibilities that the Husband allegedly performed in the job.

2. “Business Operation Engineer” for Cadillac Fairview in Calgary. The date given is “12/31/2017 – less than a year”.

3. The profile then lists what appears to be the Alberta job to which the Husband admits, although not in name: “Maintenance Supervisor Petro Canada Retail Sites 12/31/2015 – 12/31/2017 2 yrs”. The profile sets out a number of maintenance tasks that the Husband is alleged to have performed in that role. While these tasks are couched as maintenance roles, they also could be ascribed to a cashier at a gas station who had responsibility during his shift for maintaining and repairing his job site.

[52] The profile lists the Husband’s education as including the Southern Alberta Institute of Technology (“SAIT”) and refers to what appears to be a course in “5th Class Power Engineering”. It also cites a Bachelor of Engineering degree from NED University of Engineering and Technology in Pakistan.

[53] Ms. Lysco explained the manner in which she downloaded the Husband’s profile. She did so on her own, in accord with her usual practice and without any input or assistance from the Wife. She did not discuss the Husband’s Linked-In profile with the Wife until after she had downloaded it. After Ms. Lysco downloaded the Husband’s Linked-In profile, she showed it to the Wife, who identified the photo on the profile as being that of the Husband. The Wife repeated that identification during her trial testimony.

[54] In cross-examination, Ms. Lysco denied the repeated accusations of the Husband’s counsel, Ms. Sahi, that she had created a “fake” profile for the Husband. Despite her bald allegations, Ms. Sahi neither undertook to provide nor did she offer any evidence of Ms. Lysco’s alleged fakery. But she persisted in making the allegation. Ms. Lysco was unbowed in her testimony.

[55] Ms. Sahi also attempted to confront Ms. Lysco with the fact that the Husband’s Linked-In profile did not match the income and employment set out in his tax returns since he moved to Alberta. Ms. Lysco responded that the tax returns and notices of assessment only record what the Husband reports. That does not foreclose the idea that the Husband has earned unreported income.

[56] Ms. Lysco professed the belief that the Husband deleted the Linked-In profile immediately after she disclosed it to him. If true, that would offer strong circumstantial evidence that far from “fake”, the Husband created and controls the profile. Ms. Lysco holds that belief because she showed the profile to the Husband and Ms. Sahi when they were all in court, on September 26, 2019, at a conference before Coats J. Ms. Lysco checked the online profile again the following day, only to find that it had been deleted. As a Linked-In user, she stated that she knows that only the profile holder can change their profile.

[57] After hearing argument, I gave oral reasons for finding that the Wife had met her burden under s. 31.1 and 31.2 of the Canada Evidence Act (which applies since this is a variation proceeding under the Divorce Act), in proving the authenticity and integrity of the profile. Therefore, I found that it is admissible as evidence at trial. While I found that the Wife had met the relatively low bar for the admission of the profile into evidence, I explained that the weight to be assigned to it is left to be determined at the conclusion of the trial.

[58] In making that ruling, I made the following findings:

a. I took judicial notice that Linked-in is a well-known, popular website for job seekers to post their qualifications. Based on that finding and the fact that there is no evidence to the contrary, I have no question of the integrity of the Linked-In system with regard to representing the profiles that are posted to it. I will have more to say about that below.

b. I rejected the suggestion that Ms. Lysco posted a “fake” profile of the Husband. Ms. Sahi’s accusations against Ms. Lysco are not evidence. There is no evidence that she created a false profile of the Husband. But Ms. Lysco’s compelling denials are evidence. I accept those denials for a number of reasons. Ms. Lysco had no reason or incentive to post a “fake” profile of the Husband. She is a respected professional doing her job. She has appeared before me numerous times within the course of her employment. Each time she has presented herself with professionalism and integrity. Nothing in her testimony during this trial changed that observation. She is an entirely credible witness.

c. Ms. Lysco’s evidence that the profile was removed a day after it was shown to the Husband is also compelling. As a user of Linked-In, she testified that no one but the account holder could remove such a profile. This, at the least, supports the implication that it was the Husband that removed the profile from the Linked-In site. That means that he likely controlled the site and posted the profile.

d. With regard to the authenticity of the profile, the evidence of Ms. Lysco provides “some evidence” capable of supporting a finding that the electronic document is what the party adducing it claims it to be”, per s. 31.1(4) of the Canada Evidence Act.: R. v. C.B., 2019 ONCA 380, at paras. 65-68 and 72, Lenihan v. Shankar, 2021 ONSC 330, at paras. 217, 221 -222.

e. With regard to the integrity of the record and the best evidence rule, my findings about the Linked-In site will suffice to prove the integrity of the electronic records system by or in which the data for the profile was recorded or stored.

Credibility and the Husband’s Linked-In Profile

[59] With the exception of Ms. Lysco, who testified only as to the downloading of the Husband’s alleged Linked-In profile, this was essentially a two-witness trial. Therefore, credibility is a key issue for my determination. Each party claimed to be telling the truth and that the other was lying. Through his counsel, the Husband went so far as to assert that Ms. Lysco fabricated his “fake” Linked-In profile and that she was lying when she denied the claim. Curiously, he and his lawyer never extended the allegation of fakery to the Wife.

[60] As the Supreme Court of Canada stated in R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621,

Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.

[61] As Justice David M. Paciocco, Palma Paciocco, & Lee Stuesser wrote in their text, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020), at p. 593:

courts assess credibility “by considering a range of things, including the character of the witness; the demeanour of the witness; the condition and capabilities of witness (i.e., things that may affect their opportunity or capacity to observe); the plausibility of the testimony (as measured through ‘the probabilities that surround the currently existing conditions’); the internal and external consistency of the witness’s evidence; and whether there is supporting information (in other words, how the testimony “stacks up” to other available information)”: at p. 593, citing Faryna v. Chorny, 1951 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.).

[62] Courts have learned to tread carefully when asked to rely on the demeanour of witnesses, as scientific studies have questioned the value of that consideration. The point is taken up by Epstein J.A., writing for the Court of Appeal for Ontario in R. v. Rhayel, 2015 ONCA 377, at para. 85 as follows:

It is now acknowledged that demeanour is of limited value because it can be affected by many factors including the culture of the witness, stereotypical attitudes, and the artificiality of and pressures associated with a courtroom. One of the dangers is that sincerity can be and often is misinterpreted as indicating truthfulness.

See also: R. v. Pelletier, 1995 ABCA 128, at para. 18; R. v. Levert, 2001 8606 (ON CA), 159 C.C.C (3d) 71, at paras. 25-27; R. v. G.(M.), 1994 8733 (ON CA), 93 C.C.C. (3d) 347, at p. 355; State Rail Authority of New South Wales v. Earthline Constructions Pty. Ltd. (1999), 160 A.L.R. 588, at para. 88.

[63] In assessing credibility, a trial judge is not required to reconcile or refer to every discrepancy in the evidence: Gholami v The Hospital for Sick Children, 2018 ONCA 783, at para 65. However, that credibility assessment must be based on the evidence as a whole. The court cannot make credibility findings on the basis of stereotypical inferences regarding human behaviour or unfounded common-sense assumptions: R. v. J.C., 2021 ONCA 131.

[64] Here, in his submissions, the Husband has offered fervent arguments against the Wife’s credibility. He states that she has failed to file an up-to-date financial statement or proof of her current income and that these failures should diminish her credibility. He speaks, without reference to any evidence, of her having “stolen” his documents after his arrest. While he failed to produce the credit report he was ordered to produce by Coats J. (as set out below, he says that he was unable to do so), he states that he consented to Ms. Lysco obtaining it for him. However, that agreement came on the penultimate date of this trial. She was in fact unable to obtain the profile, overnight, as I requested she do.

[65] The Wife admits that she failed to file a financial statement for the trial. She explained that she did not know that she had to do so. She is self-represented, and she asserts that the Husband’s counsel never requested one from her prior to trial. Similarly, she filed no income information for 2017 onward because she was never asked for it. There is some support for the Wife’s explanations in the pretrial endorsements in this motion to change. There is no endorsement in which the Wife is required to produce anything but the documents that she is relying upon in response to the Husband’s claims to custody and access (Miller J. of September 28, 2018) and all documents that she is relying upon regarding his income (Coats J. of September 26, 2019).

[66] While the Wife was required under r. 13 to produce an updated financial statement and income disclosure prior to this trial, I accept her explanation that she was not aware of the requirement. Unlike the Husband, she has been self-represented throughout this proceeding, and there is no evidence that her disclosure obligations were brought to her attention.

The Husband’s Problematic Written Arguments

[67] When dealing with credibility, the Husband makes a series of unhelpful, problematic and dare I say, disappointing arguments in his written submissions. Most egregiously, he makes a claim that likely has not been raised in a Canadian courtroom in almost 30 years. Rather than paraphrase the argument, I reproduce it verbatim, from his written submissions:

During Trial, Respondent took the oath under the name of his Holy book Qur’an, which shows Respondent’s Creditability, while on the other hand, Applicant (who is also Muslim) avoided her oath under Qur’an name, despite Respondent had objection on it, which shows Applicant is not credible.

I will have more to say about the propriety of that argument below.

[68] The Husband continues in his counsel’s written submission, baldly arguing that the Wife has engaged in “discreditable conduct” which should diminish her credibility before the court. Without citing any evidence offered at trial, he points to:

1. The Wife’s allegedly “malicious” failure to tell Tzimas J. that her claims of his ability to earn $60,000 per year were false and that his lawyer had given the court ordered disclosure to her lawyer. She purportedly deceived the court because she would otherwise have received no support. The Husband’s counsel concludes on this point by writing: “So, in nutshell, Justice Tzimas was Right in her decision, BUT Applicant was Dishonest and Discreditable in hiding the facts from court, and to misguide the court by providing false figures of Respondent’s income.”

2. The fact that the Wife re-married in 2016 but only disclosed the marriage during this trial. This shows her “discreditably before the court.” The Husband takes this argument a step further. He asserts, without a shred of evidence, that “[b]ased on above fact, we now can say that her new Husband is living with her and kids in Canada, but she is hiding that fact from court like she hid her remarriage in 2016.”

3. While the Wife took the Husband to task for his affairs during the marriage, she “remarried…her boyfriend” a year after the parties divorced. That means, in the Husband’s telling, that “it was not the Respondent but Applicant who had affair with a man whom she remarried immediately after taking divorce from Respondent. Applicant that disguise act [sic] shows her discreditably [sic] before the court.”

4. She “maliciously stole or got Respondent’s personal documents and articles, that was legally and ethically supposed to return to Respondent after divorce”.

[69] In the supplemental written submission that was to be confined to issues raised by the Supreme Court’s Colucci decision, the Respondent, through counsel, made a new series of improper submissions. As set out above, he tried to rely on a medical report that was not properly before the court. He then attempted to make submissions and draw inferences about an alleged series of facts and the purported misconduct of both the Wife and Ms. Lysco that had not been placed in evidence and which would likely be inadmissible if they were presented to the court. His counsel wrote:

CRA informed Respondent that his account has been hacked by unauthorized 3rd party, hence deactivated by CRA. Based on Applicant's unethical history of her dishonesty and cheating at all levels, we are forced to believe that Respondent's account was hacked by Applicant & her 3rd party of Halton region, and Applicant stole all confidential information from Respondent's CRA account.

[70] Then, as if that were not sufficient, the Husband’s counsel doubled down in her previous improper submissions. Ignoring my mandate limiting each party’s second set of written submissions to the application of Colucci to this case, she wrote:

Following is the unethical history of Applicant’s dishonesty, cheating and unprofessionalism:

• [The Wife] stole Respondent's personal documents & households items from matrimonial home and didn’t return back yet

• she misguided court in 2015 by providing Respondent's false income to court using fake documents, to gain unjustified financial support payments from Respondent which he was not able to pay by any means.

• she hid and didn't disclose to court/Respondent's lawyer about her remarriage happened in 2016.

• she illegally made Respondent's fake bogus LinkedIn profile having tons of discrepancies in it, and that's why that profile doesn't match with Respondent's unemployment / employment history.

• she told tons of lies during case trial, that's why, she didn't take oath in bad intention on her religious holy book Qur'an.

[71] In considering these arguments I have both general and specific comments, as well as serious concerns. First, the allegations against the Wife are generally irrelevant to her credibility, unfounded in evidence, not the subject of confrontation during cross examination, or plainly improper. I will deal with them in order, leaving the issue of the manner of the Wife affirming to tell the truth, last:

1. Tzimas J.’s findings regarding the Husband’s failure to produce disclosure income at the time of the summary judgment motion, like her other findings, are res judicata. If he wished to challenge them, the Husband could have appealed them or even moved to set aside the order of Tzimas J. I point out that he failed to attend the motion and has failed to offer evidence of the reasons for that failure. There is no evidence that the Wife deliberately lied to Tzimas J. Nothing in Tzimas J.’s endorsement or that emerged from the Wife’s cross examination during this trial supports such a claim.

2. The Wife’s remarriage, in itself, is irrelevant to her credibility. She was not challenged on allegedly withholding the evidence of that remarriage during her cross-examination. Even if she failed to disclose the fact of the remarriage until trial (which was not proven) her uncontradicted evidence is that she has not lived with her Husband since their marriage and is unable to bring him to Canada. It is unlikely that the marriage would affect her entitlement to support. That is particularly the case as much of her claim is a compensatory one. It is based on her primary caregiving role before separation, the uncontradicted evidence that the Husband forbade her to work outside the home during the marriage, and her sole caregiving role after separation. In sum, there is no basis to find that the Wife is actually living with her new husband in Burlington subsidized housing and is lying about it.

3. The issue of the Husband’s alleged affairs is only relevant to the issue of his debt at the time of separation. The Husband claimed that the parties’ standard of living was the result of running up his line of credit. He made that claim in support of an argument that Tzimas J. wrongly imputed income to him. The Wife testified that he ran the line of credit up to pay for his affairs. Neither party presented a single statement from the line of credit at trial, so I am not in a position to rely on the line of credit in any way in making my decision. But which of the parties had an affair during the marriage is immaterial to either party’s credibility. It is clearly an irrelevant consideration.

4. The Husband moved to Calgary. He left his items behind in the home. He points to no documents that were “stolen” from him. Nothing in the cross-examination of the Wife demonstrates to me that she stole his items or papers from the home or that she was obliged to produce any such items to him. Any issues of disclosure to the Husband, who has been represented by counsel throughout this motion to change proceeding, could have been resolved prior to trial.

5. During the course of the trial and even in her written submissions, the Husband’s counsel never raised the claim that the Wife is responsible for his “fake” Linked-In profile. Counsel blamed Ms. Lysco for allegedly fabricating that profile. Yet in her Colucci submission, counsel blamed the Wife for that posting that profile as part of her “unethical history of … dishonest, cheating and unprofessionalism.” That submission is unmoored to any evidence called at trial.

6. Similarly unrelated to the evidence at trial, counsel claims that the Wife hacked the Husband’s CRA account. She attaches a document to her submissions that was not placed in evidence at trial and which she should know is inadmissible. There is not a shred of evidence to back up the Husband’s claim.

7. Counsel continued, asserting in her Colucci submission that the Wife “ridiculed & laughed at Respondent, Lawyer and Judge during case conference and trial.” There are a number of problems with this submission. First, the proceedings at a case conference are confidential and cannot be raised at trial: Alsawwah v Afifi, 22020 ONSC 883 at para. 47, citing Bordynuik v. Bordynuik, 2008 39219 (ON SC), [2008] O.J. No. 3049 (S.C.J.) at para.8. Second, if any elements of this disrespect towards the Husband, his counsel or the court occurred during the three days of trial, they were not brought to my attention. In fact, I observed no disrespect from the Wife during the course of the trial.

8. Most of the Husband’s Colucci submissions are improper and contrary to my instructions. To the extent that they claim to raise new allegations against the Wife, they are not based on evidence and/or breach the Rule in Brown v Dunn, 1893, 6 R 67, (H. of L.). As Lord Chancellor Herschell explained in Brown v Dunn, if a party intended to impeach a witness called by an opposite party, the party who seeks to impeach must give the witness an opportunity, while the witness is in the witness box, to provide any explanation the witness may have for the contradictory evidence: see R. v. Quansah, 2015 ONCA 237 at para. 75. While the rule is not absolute, “extent of its application lies within the sound discretion of the trial judge and depends on the circumstances of each case”: R. v. Quansah, at para. 80.

[72] I next turn to the argument about the manner in which the parties promised to tell the truth during the course of the trial. The Husband claims that he is the more credible of the two parties because he swore on a Holy Qur’an while the Wife affirmed. In his supplemental Colucci submission, he amplifies that argument, asserting that she failed to swear on a Qur’an because “she told tons of lies during case trial [sic].” That argument is, of course, errant nonsense. But it also echoes a form of religious prejudice that has no place in our courts.

[73] A similar argument was raised before the Ontario Court of Appeal in 1993 in Canada’s first war crimes trial, R v. Finta, 1992 2783 (ON CA), [1992] O.J. No. 823, 53 O.A.C. 1, (Ont. C.A.), aff’d. 1994 129 (SCC), [1994] S.C.J. No. 26. There, a similar argument regarding practitioners of a different religion was rejected by the court. Arbour, Osborne and Doherty JJ.A., writing for the majority of a five-judge panel of the court, no one dissenting on this point, commented very critically against that argument as follows:

Finally, Mr. Amerasinghe has objected to defence counsel's pejorative references to eyewitnesses who were of Jewish origin, most of whom affirmed before giving evidence, and jurors who swore on the Bible upon taking their oath. The Crown's position is that this was an appeal to a religious prejudice. We think the distinction drawn by Mr. Christie between those who swore and those affirmed was unworthy of a counsel of his experience and inappropriate in the extreme. The trial judge, however, directed the jury with precision that an oath and an affirmation have the same effect. We are satisfied that the jury would not have succumbed to defence counsel's transparent tactics. Moreover, as earlier noted, the trial judge correctly reminded the jury not to let their decision be affected by sentiment, emotion, prejudice or sympathy.

[Emphasis added]

[74] Needless to say, I adopt the comments of the court without needing to expand upon them. Such arguments have no place in our courts at any time and even more so at a time that accommodation of difference and equality of treatment is a central issue in delivering justice to all Canadians.

[75] I strongly refer counsel to my decision in Alsawwah v Afifi, above, at paras. 1-3 and 103-108 about rhetorical excess in family litigation.

[76] With regard to the Wife’s failure to produce her up-to-date financial statement and proof of income, the Husband’s criticism is appropriate. I am entitled to consider it in the context of the application of my discretion in determining the credibility of the parties. That being said, the Wife is self-represented and no reference in previous endorsements in this motion to change have been brought to my attention that demonstrate that the issue was previously raised with the court. While Ms. Lysco assisted the Wife at trial, she did not purport to offer any legal advice or forensic assistance to her, save the downloading of the Linked-In profile.

[77] Turning to the Husband, I find that there are numerous problems with his credibility. They include the following:

1. He makes a number of allegations in which the court is asked to simply accept his word because he offered no outside evidence to support it. Examples include:

a. While he claims to have suffered from psychiatric maladies that have incapacitated him from work, as stated above, he asked me to rely on the two cursory and conclusory notes prepared by Dr. Chohan rather than call her to testify. As stated above, even assuming that they are admissible I place little weight on those notes as supporting his claims.

b. Similarly, the Husband asks the court to assume his medical disability based upon documents prepared by persons whom he did not call to testify or organizations that assisted him. Thus, he relies on the ROE from the gas station at which he worked, stating that he lost his job because of mental illness. But again, the record of employment referred broadly to “illness or injury”. The Husband failed to call Mr. Singh, the author of that document to explain what illness caused his loss of employment. Similarly, he asks me to assume that he is telling the truth about his income because he is in receipt of social assistance and legal aid without even producing the documents that are the basis of his grant of those public benefits.

2. The Husband has a history of failing to provide disclosure ordered by the court. While he claims that his former lawyer did provide all of the disclosure that he was required to provide to the Wife’s for lawyer, the evidence of that disclosure falls short of his claim. In particular:

a. The order of Price J. of May 16, 2014 required the Husband to deliver his completed sworn financial statement, completed 2010 – 2013 tax returns with all schedules and attachments, and his notices of assessment for 2010-2012, to the Wife by June 30, 2014. He was also to produce his 2013 notice of assessment forthwith upon receipt.

b. Almost three months later, the Husband had still not complied with the Price J. order. Therefore, on August 11, 2014 Ricchetti J. again ordered him to produce the same disclosure within a further 20 days. The Husband failed to comply with that order as well.

c. Almost a further eleven months later, on July 8, 2015, the Husband was ordered to produce the disclosure called for in the Ricchetti J. order, his 2014 notice of assessment and income tax return; as well as his pay stub indicating his income to date for 2015, by July 23, 2015.

d. The Husband’s own evidence shows that he disobeyed that order as well. His affidavit of May 8, 2021 discloses that the first disclosure that he offered in the original proceeding was sent by his lawyer, Tahir Majid, to that of the Wife, Deepa Singh, on August 14, 2015. That was some ten months after Price J. ordered him to produce his disclosure. In a responding letter later that same day, Ms. Singh acknowledged receipt of the Husband’s 2011 and 2012 Notices of Assessment and his 2014 T1 general tax return. She stated that the rest of the documents that he had sent to her were illegible. In other words, he still had failed to produce his:

1. 2010 tax return (with attachments) and notice of assessment;

2. 2011 tax return (with attachments);

3. 2012 tax return (with attachments);

4. 2013 tax return (with attachments) and notice of assessment;

5. 2014 notice of assessment;

6. 2015 year to date pay stub.

e. The husband has produced no evidence that he produced any further disclosure to the Wife before Tzimas J. made her order. He was also required to file an up-to-date sworn financial statement or an affidavit stating that the information in his previous one remained unchanged, as required by r. 13(12) That did not occur. [^2]

3. As recently as November 24, 2020, the Husband was ordered by Coats J. to provide a copy of his credit score report by February 1, 2021. He failed to do so, claiming that he was unable to do so because of FRO restrictions. To be fair, he attached a document from Equifax, dated November 26, 2020 stating that “([t]his report not available because MEP/Credit Bureau Restrictions) Attached are Equifax order and All MEP (FRO) Restrictions orders on Respondent.” The order confirmation report refers to the status of the request from Equifax as “Unavailable” and offers a product code. The confirmation also offers a telephone number for Equifax’s customer care department for further assistance. There is no evidence that the Husband or his lawyer ever followed up on their request for a credit score report. I have no doubt that, if necessary, Coats J., who was case managing this case, would, if requested, have made an order requesting FRO assistance to obtain the credit report that she had ordered be produced. There is no reference to such a request in any endorsement.

4. I recognize that I asked Ms. Lysco to attempt to obtain the Husband’s credit score during the course of the trial. But she was pessimistic that she could do so on her own, particularly as I was seeking it for the next day, the final day of evidence in the trial. Her inability to obtain it is not evidence that the Husband could not have done so had he contacted Equifax’s customer service department, sought FRO cooperation, or raised the issue with Coats J.

5. The Linked-In profile, the Husband’s denials, and the timing of the deletion of the profile all diminish the Husband’s credibility. I say that because:

a. Clearly the profile refers to the Husband – he does not deny the Wife’s assertion that the photograph in the profile is a representation of his likeness. The profile also cited his engineering degree from a Pakistani university and his job at the Calgary gas station. Yet the Husband claims that it is a “fake”. His assertion now is that either the Wife or Ms. Lysco prepared the “fake” profile.

b. As set out above, the problems with blaming the Wife are that she was not cross-examined on that allegation and the fact that it was Ms. Lysco’s idea to obtain the profile. In fact, there is no evidence that the Wife was ever aware of the existence of the profile before Ms. Lysco discovered it. Nor is there evidence that she knew that Ms. Lysco would attempt to obtain it from the internet out.

c. With regard to Ms. Lysco, as stated above, I have no reason to question her denials. She had nothing to gain from fabricating the profile in the course of her job. She downloads such profiles as a part of her job, assisting some support or social housing recipients. I have had no reason to question her integrity.

d. On the other hand though, the deletion of the profile, which only the profile holder can perform, as well as the timing of the deletion, makes it far more likely than not that the Husband put up the profile for his own reasons. That timing supports the inference that he then chose to delete it when it was discovered.

e. Accordingly, I accept the veracity of the Linked-In profile as one posted to the Linked-In website by the Husband and reject his denials.

6. Further, I cannot ignore the fact that throughout the course of their litigation history, the Husband has been motivated to avoid paying any money to the Wife, whether for herself or their children. I say this because:

a. This case began when the Husband attempted to sell the matrimonial home without her knowledge. She had to bring a motion to freeze the sale proceeds.

b. As stated above, the Husband consistently failed to produce income the disclosure required of him, despite a number of orders requiring him to do so.

c. There is no evidence that the Husband ever voluntarily paid any support to the Wife prior to the Tzimas J. order, despite previous temporary orders. Recall that Tzimas J. ordered him to pay the Wife child support arrears of $30,368 and spousal support arrears of $36,894.50. The $67,262.50 in support arrears accrued in only 25 months, from September 3, 2013 to October 1, 2015.

d. The Husband has offered no evidence that he voluntarily paid any support to the Wife after moving to Alberta, even when he admits to having been working.

e. Further, the Husband chose to move to Alberta, where he had no job and no likely prospects, despite his support obligations to the Wife and his children. When asked to explain his decision to move, he was unable to offer a reason other than that there was nothing for him here. He did not say that the decision to move was based, even in part, on a desire to enhance his ability to pay support. His own evidence demonstrates no reason to move to Alberta.

[78] For the reasons set out above, where the evidence of the Wife or Ms. Lysco conflicts with that of the Husband, I prefer their evidence.

Issue No. 1: May I entertain the Husband’s argument about alleged errors in the Tzimas J. order?

[79] The Husband attempts to effectively reargue the summary judgment motion before Tzimas J. when he asserts that her order was incorrectly determined. Despite the vociferousness of his assertions, he offers no evidence but his word that Tzimas J erred in finding that he failed to provide disclosure in the face of a number of orders requiring him to do so. He also claims that he did not earn the income that was imputed to him. He relies on tax returns that he now produces. I have already commented on his disclosure within the context of his credibility.

[80] In L.M.P. v. L.S., 2011 SCC 64, the Supreme Court of Canada set out the approach that courts are required to take in determining whether there has been a material change in circumstances since an original support order. At para. 33, Abella and Rothstein JJ, writing for the majority, stated:

It is presumed that the judge who granted the initial order knew and applied the law, and that, accordingly, the prior support order met the objectives set out in s. 15.2(6). In this way, the Willick v. Willick 1994 28 (SCC) approach to variation applications requires appropriate deference to the terms of the prior order, whether or not that order incorporates an agreement.

[81] A party who fails to offer disclosure and then has income imputed to them cannot later complain in a motion to change that the imputed figure is wrong. That would defeat the process by which parties are required to provide timely disclosure during the course of family law proceedings. As Pazaratz J. wrote in Trang v. Trang, 2013 ONSC 1980:

51 When a court imputes income, that's a determination of a fact. It's not an estimate. It's not a guess. It's not a provisional order awaiting better disclosure, or further review. It's a determination that the court had to calculate a number, because it didn't feel it was appropriate to rely on - or wait for - representations from the payor.

53 If "declared income" automatically prevailed on a motion to change support, it would defeat the purpose of imputing income in the first place. It might even be a disincentive for payors to participate in the initial court process. They could simply ignore support Applications - as they often do. They could wait to see if the court imputes income, and how much. If dissatisfied with the amount, the payor could later return to court waving their tax returns, to suggest that the original judge got it wrong.

54 Support claimants should not be forced to go through this two-step process. Our family court system certainly can't afford it.

[82] Pazaratz J.’s approach was approved by a number of courts and ultimately the Supreme Court of Canada. In Colucci v Colucci, 2021 SCC 24 (“Colucci”), where Martin J. wrote for the Supreme Court of Canada:

63 Of course, a payor whose income was originally imputed because of an initial lack of disclosure cannot later claim that a change in circumstances occurs when he or she subsequently produces proper documentation showing the imputation was higher than the table amount for their actual income. The payor cannot rely on their own late disclosure as a change in circumstances to ground a variation order (Gray, at paras. 33-34). This would "defeat the purpose of imputing income in the first place" and act as "a disincentive for payors to participate in the initial court process" (Trang v. Trang … at para. 53).

[83] The practical policy reasons behind that principle were explained by Brown J.A., writing for the Court of Appeal for Ontario in one of the cases cited by Martin J. in Colucci, Gray v Rizzi, 2016 ONCA 152. There, Brown J.A. wrote:

[34] To allow a party who ignores his or her financial disclosure obligations to later satisfy the requirement and argue that the late disclosure constitutes a material change in circumstances would eviscerate the financial disclosure regime. The practical dangers of such an approach were well described by Pazaratz J. in Trang v. Trang…

[84] It was open to the Husband to participate in the summary judgment motion, but he failed to do so. He was ordered to provide disclosure on four occasions. Edwards J. and Tzimas J. both found that he had failed to do so, and that income should be imputed to him. If he felt that there was a reason to set aside the Tzimas J. order because he was unaware of the court date or otherwise unable to participate in the hearing, he could have moved to set aside the Tzimas J. order under r. 25(19). If he felt that the order was based on an error in law or a palpable and overriding error in regard to an issue of mixed fact and law, he could have appealed it: Housen v. Nikolaisen, 2002 SCC 33. He did neither. No reason has been presented to this court to entice it to engage in the two-step process cited by Pazaratz J. in Trang and cited by the Ontario Court of Appeal in Gray and the Supreme Court in Colucci.

[85] Accordingly, the Tzimas J. order and its imputation of income is the starting point of my analysis.

Issue No 2: Has the Husband demonstrated that there has been a material change in circumstances since the time of the Tzimas J. order?

[86] The jurisdiction to vary a support order made under the Divorce Act (the “Act”) is set out in s. 17(1). The relevant provisions are:

Variation order

17 (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively,

(a) a support order or any provision of one, on application by either or both former spouses;

Factors for child support order

(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.

Factors for spousal support order

(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.

Guidelines apply

(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.

Objectives of variation order varying spousal support order

(7) A variation order varying a spousal support order should

(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;

(b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.

[87] The Child Support Guidelines (the “Guidelines”), which are a regulation under both the Divorce Act (SOR/97-175, as amended) and the Family Law Act (O. Reg. 391/97, as amended), set out the following further interpretative criteria for the determination of a material change in circumstances:

Circumstances for variation

14 For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order:

(a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof;

(b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and

(c) in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act, enacted by section 2 of chapter 1 of the Statutes of Canada, (1997).

[88] In L.M.P. v. L.S., 1994 28 (SCC), [1994] 3 S.C.R. 670 at para. 44, the Supreme Court of Canada reaffirmed the approach to the determination of a material change in circumstances previously set out by Sopinka J. in Willick v Willick, cited above, as follows:

In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances. This means a change, such that, if known at the time, would likely have resulted in different terms. The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation.

[89] In Colucci v Colucci, 2021 SCC 24, the Supreme Court of Canada set out the framework for the determination of an application to reduce a support order, whether retroactively because of a past change in circumstances (such as a reduction of income), or prospectively because of a current and future inability to pay.

[90] At para. 8, the court was very clear about the approach that trial courts must take in circumstances when a payor, in arrears, claims an inability to pay arrears and ongoing support.

Applications of this kind require a different analysis. In these cases, the court order or agreement reflects the correct amount of child support owing, but the payor has failed to keep up with payments as they fell due. The payor subsequently asks the court to forgive all or part of the accrued debt because of present financial hardship. When the arrears reflect the amount that ought to have been paid, the payor cannot rely on a past decrease in income to explain why there are arrears. In these cases, there is a presumption against rescinding any part of the arrears, as courts have a range of other remedial options. Rescission sits at the far end of the range because it wipes out a legally recognized debt. As such, rescission is only appropriate in exceptional circumstances. Such circumstances may arise where full disclosure of the payor's financial circumstances shows that the payor is unable to pay the arrears and will be unable to pay in the future, even with a flexible payment plan.

[91] At paras. 59–61, the court spoke of the baseline requirements for proof of a material change in circumstances by a payor seeking a downward retroactive change of support: That payor:

1. Must first show a past change in circumstances as set out in s. 17(4) of the Divorce Act and s. 14 of the Guidelines, and as further defined in Willick and L.M.P.: para. 59;

2. Bears the onus of showing a change in circumstances: para. 60.

3. When claiming a retroactive variation claim based on a material change in income, must demonstrate that the decrease in their income is significant and has some degree of continuity. It must be real and not one of choice. Trivial or short-lived changes are insufficient to justify a variation: para. 61.

Previously Imputed Income

[92] Section 19(1) of the Guidelines sets out a non-exclusive list of criteria that would allow a court to impute income to a support payor, including intentional underemployment and failure to offer full disclosure when under a legal obligation to do so. The relevant provisions read as follows:

Imputing income

19 (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

(f) the spouse has failed to provide income information when under a legal obligation to do so;

[93] The leading Ontario case regarding the imputation of income to a support payor is the decision of the Ontario Court of Appeal in Drygala v. Pauli (2002), 2002 41868 (ON CA), 61 O.R. (3d) 711 (Ont. C.A.). At para. 32 of that decision, the Court described the imputation of income as:

... 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 legal obligation, a parent must earn what he or she is capable of earning.

[94] As Chappel J. of the Superior Court Family Division explained in Szitas v. Szitas, 2012 ONSC 1548, at para. 56, citing Drygala:

The Ontario Court of Appeal has held that in determining whether to impute income on the basis that a party is intentionally underemployed or unemployed pursuant to section 19(1)(a) of the Guidelines, it is not necessary to establish bad faith or an attempt to thwart child support obligations. A parent is intentionally underemployed within the meaning of this section if they earn less than they are capable of earning having regard for all of the circumstances. In determining whether to impute income on this basis, the court must consider what is reasonable in the circumstances.

[95] The same point was confirmed by the Court of Appeal for Ontario in Lavie v Lavie, 2018 ONCA 10, at para. 26.

[96] As set out above, when the request is made to vary an order based on previously imputed income, the court will not retry the original decision, which is presumptively correct: Trang at para. 60. Thus, the onus falls on the payor to show that there has been a material change in circumstances in the way that their income is to be calculated: Trang at para. 55. As Pazaratz J. put it:

56. If for example the original support order imputed income because the court concluded an unemployed payor should have been working, it would be illogical to allow the payor to extinguish that determination by returning on a motion to change, with proof that he wasn’t working. That wouldn’t constitute a change in circumstances.

[97] As set out at para. 63 of Colucci:

62 The payor must have disclosed sufficient reliable evidence for the court to determine when and how far their income fell, and to ascertain whether the change was significant, long lasting, and not one of choice. A decision to retroactively decrease support can only be made based on "reliable, accurate and complete information" ... The payor cannot ask the court to make findings on income that are contrary to the recipient's interests "while at the same time shielding information that is relevant to the determination of their income behind a protective wall").

[citations omitted]

[98] The onus thus lies with a payor who moves to reduce a previous support order, particularly when it is based on an imputation of income, to provide complete reliable and comprehensible income information. The onus should not shift onto the recipient to disprove less than fulsome disclosure as the court explained at para. 128 of Colucci:

Recipients should not be expected to hire forensic accountants or investigators to uncover the financial information needed to effectively cross-examine the payor or challenge the payor's submission that only minimum wage should be imputed where a finding of under-employment is made. Such an expectation is particularly unrealistic where, as here, the payor has left the country and stopped making payments, leaving the recipient to struggle to care and provide for the children on her own.

Nondisclosure as the “Cancer” of Family Law”

[99] The Supreme Court of Canada has described non-disclosure as the cancer of family law (Leskun v. Leskun, 2006 SCC 25 at para. 34, quoting Cunha v. Cunha, (1994), 1994 3195 (BC SC), 99 B.C.L.R. (2d) 93 (S.C.) at para. 9). While the court was speaking of non-disclosure regarding property, the same principle applies to non-disclosure of income in family law litigation: Dowdall v Dowdall, [2020] O.J. No. 3481, at para. 1 aff’d. 2021 ONCA 260, Leitch v. Novac 2020 OCA 257, at para. 44.

[100] As the Court of Appeal stated in Dowdall, above, citing the decision of the Supreme Court of Canada in Rick v. Brandsema, 2009 SCC 1:

disclosure is fundamental to the just resolution of familial disputes. … Where both parties have access to the relevant and material information and full disclosure is provided, as required by the Rules, litigation will be minimized.

Blameworthy Conduct

[101] The concept of blameworthy conduct was introduced by the Supreme Court of Canada in D.B.S. v. S.R.G., 2006 SCC 37. It is an important factor in the determination of requests for a retroactive decrease in support. That is particularly the case when determining the date of notice of a change in income, interest and costs: Colucci at paras. 40-42. Blameworthy conduct is behaviour that privileges the interests of the payor or the right of the recipient (particularly a child) to receive support: Colucci at para. 101, citing Goulding v. Keck, 2014 ABCA 138, at para. 44. Blameworthy conduct can include material nondisclosure: Colucci at para. 42, citing Michel v. Graydon, 2020 SCC 24, at paras. 32 and 36. But the concept extends beyond “the most egregious cases of deception or intentional evasion” to include “cases of mere passivity and ‘taking the path of least resistance’": Colucci at para. 41, citing Burchill v. Roberts, 2013 BCCA 39, at para. 30.

[102] In Colucci, the Supreme Court accepted the Court of Appeal’s characterization of the support payor before it as having engaged in blameworthy conduct. That finding was based on two key factors: his deficient and misleading disclosure and his status as a "recalcitrant payor". The payor had failed to produce necessary disclosure and had misrepresented his inheritance from his mother’s estate. As a "recalcitrant payor", he was $170,000 in arrears and had not voluntarily paid for support between 1998 and 2016. The court noted the hardship that his children experienced from his non-payment. Both factors apply here.

Rescission of Support Arrears

[103] Generally, there is a presumption against the rescission of support arrears based on a present inability to pay; one that the payor must overcome. Arrears are seen to accurately reflect the amount that the payor should have paid at the time that they were due, but were not. The payor’s claim for rescission is thus a form of “hardship” application, in which there has been no past change in circumstances justifying a retroactive decrease in the support obligation: Colucci at par. 134. In those cases, the sole issue is the payor’s ongoing financial capacity. The payor is required to “provide sufficient reliable evidence to enable the court to assess their current and prospective financial circumstances, including their employment prospects and any assets, pensions, inheritances or other potential sources of future capacity to pay”: para. 135.

[104] The payor will only overcome the presumption against the rescission of any part of the arrears if they establish their inability to ever pay the arrears, even on a flexible payment plan: para. 138. The standard is a “stringent one” as rescission of arrears is a “last resort” reserved for exceptional cases such as catastrophic injury: para. 141.

Application of the Law to the Facts of this Case

[105] Here the Husband has made few, if any, voluntary payments since separation and has showed no willingness to support his children, who suffered hardship as a result of his failure to fulfill his obligations. The Wife, like the Husband is presently being supported by government benefits, except that she had four mouths to feed.

[106] The Tzimas J. order was made because of the Husband’s failure to produce disclosure, despite multiple court orders. In this proceeding, he has finally produced much of the disclosure that he had been ordered to make some years before. But for reasons set out above, I am not confident that his present disclosure is either complete or accurate.

[107] The Husband’s tax returns are based only on information that he has provided to the CRA. They do not prove that the reasons for imputing income to the Husband are no longer valid. The Husband had a great deal of time to produce a credit report, which would not have been based exclusively on his information. While he was originally turned down in his request, he appears to have been satisfied with that refusal. The disclosure that he does now offer is only provided within the context of his desire to be relieved of his support obligations. The Linked-In profile gives me further reason to believe that the Husband has not, even to date, provided full financial disclosure to the Wife or been fully candid with this court.

[108] The onus rests on the Husband to prove that there has been a material change in circumstances, particularly within the context of the reasons that income was imputed to him. While Tzimas J. referred to the paucity of the Husband’s disclosure in the face of numerous disclosure orders, she also based her order on the interim order of Edwards J. When Edwards J. imputed income to the Husband, he did so based on both his disclosure failures and the notion that if he was earning less than $60,000 in Alberta, he was intentionally underemployed. He reasoned that the Husband would not move to Alberta unless he was seeking out better financial prospects. I still have not been offered a credible reason for the Husband’s move to Alberta that includes a desire to meet his financial obligations to his family.

[109] The order of Tzimas J. required the Husband to give the Wife annual updated income disclosure in accord with s. 24.1 of the Guidelines. He does not appear to have complied with this term of the order other than the disclosure he has offered prior to this trial. The Wife failed to do so either, but the Husband, who is represented by counsel, did not complain of this failure. Further there is little in her income history that would have significantly changed his support obligations.

[110] From the evidence before me, I find that the Husband gave no notice of his alleged change in income until he issued his motion to change on April 23, 2018. Even then, he failed to produce the necessary and missing disclosure until sometime after he commenced this proceeding. I have not been provided with a date in which he provided that disclosure.

[111] The Husband has offered no evidence to show a change in the circumstances that allowed for a finding that his move to Alberta, if it did not result in an increase in income, showed him to be intentionally underemployed. Here, the Husband has failed to offer any credible evidence to explain the precipitous drop in his income following the separation. Recall that he claims to have earned $0 in 2015, the year of the Tzimas J. order and the year that he moved to Alberta. Nor has he demonstrated a good reason to move halfway across the country only to be unemployed in Alberta during a period of prosperity.

[112] During the period following the Tzimas J. order, the Husband failed to voluntarily pay much if any support to the Wife, despite the Tzimas J. order. His own evidence is that he obtained a job in Calgary that paid him more than $30,000 over a one-year period and over $57,917 between 2017 and 2018. He clearly was guilty of blameworthy conduct.

[113] I cannot find any material change in the circumstances that led to the Tzimas J. order. I cannot ignore the Husband’s blameworthy conduct set out above.

[114] While the Husband is presently in receipt of social assistance from the Government of Alberta, I am not convinced that he has been fully candid with this court regarding his income or ability to work. Even accepting his present status on social assistance, the onus rests on him to prove that there has been a material change in the circumstances that led to the imputation of income to him. Because of the credibility concerns discussed at great length above, I am not convinced on a balance of probabilities that he has done so.

[115] . Accordingly, I dismiss this motion to change.

Costs

[116] The parties should attempt to resolve the issue of costs on their own. If they are unable to do so, the Wife may submit her costs submissions of up to three pages, double-spaced, one inch margins, plus a bill of costs/costs outline and offers to settle within 14 days of release of this endorsement. She need not include the authorities upon which she relies so long as they are found in the commonly referenced reporting services (i.e. LexisNexis Quicklaw, or WestlawNext) and the relevant paragraph references are included. The Husband may respond in kind within a further 14 days. No reply submission will be accepted unless I request it. If I have not received any submissions within the time frames set out above, I will assume that the parties have resolved the issue and make no costs order.

“Marvin Kurz J.”

Electronic signature of Justice Marvin Kurz,

Original will be placed in court file

Date: July 22, 2021

[^1]: Note: all references to rules in this endorsement refer to the Family Law Rules

[^2]: I note that the exhibit to the Husband’s affidavit that included that correspondence between counsel for the parties on August 14, 2015 also included correspondence between the Husband and his lawyer, Mr. Majid. I have ignored that correspondence because it is prima facie privileged and there has been no express waiver. I assume that it was included in error.