COURT FILE NO.: FS-20-17098
DATE: 20211019
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
YASMIN MOHAMED
Applicant
– and –
ABUBAKA DICK
Respondent
Applicant, Self-represented
No one appearing for the Respondent
HEARD: October 14, 2021
M. D. FAIETA j.
Reasons for Decision
introduction
[1] The Applicant mother brings this motion for child support and an order noting the Respondent in default.
[2] The Respondent was duly served with this motion has failed to respond. This motion proceeded on the basis of the Applicant’s affidavit sworn September 29, 2021.
Background
[3] The were married on September 6, 2015 and separated on December 1, 2016.
[4] There are two children of the marriage: Jahmiel Dickson, born September 13, 2014 and Nylah Dickson, born July 24, 2017. Jahmiel and Nylah are hereafter referred to as the “Children”.
[5] The Children have primarily resided with the Applicant since the date of separation. He has demonstrated no interest to parent or provide for the children. The Applicant has made all major decision pertaining to the Children’s welfare.
[6] This Application was commenced on July 7, 2020.
[7] The Respondent filed an Answer on August 6, 2020. He states that he wants to pay child support so long as it is reasonable. His Financial Statement, sworn August 5, 2021, is blank except for a description of his income and expenses. No income tax returns or other supporting documents were attached. He states that he currently earns $38,400 per year.
[8] On April 12, 2021, at a Case Conference, the following temporary consent Order was made by Justice Leiper:
• The Respondent shall have parenting time with the children starting April 30, 2021 on alternating weekends from Friday at 6 pm and returning the Children by Sunday at 5 pm;
• The Respondent shall pay child support of $300 per month commencing May 1, 2021
• The parties were ordered to return for a further case conference on August 13, 2021.
[9] Applying the Federal Child Support Guidelines, SOR/97-175 (“Guidelines”), an award of $300 per month for child support for two children assumes that the Respondent’s income is $19,200 per year.
[10] Except for the $300 per month required by the above Order, the Respondent has not paid child support (whether table child support or section 7 expenses) to the Applicant.
[11] The Respondent exercised parenting time with the children every other weekend, until August 5, 2021. He has not done so since that time. The Respondent advised the Applicant that he could no longer spend parenting time with the children because he now works on weekends.
[12] A further Case Conference was held on August 13, 2021. The Respondent did not attend. The Applicant was granted leave to bring a motion for child support, section 7 expenses, imputation of income of the Respondent, and related relief for the Children. Costs of the Case Conference were reserved to the Judge hearing this motion.
Financial Disclosure
[13] Contrary to Rule 13, the Respondent did not attach pay cheque stubs, income tax returns or Notices of Assessment to the Financial Statement that accompanied his Answer.
[14] On August 5, 2021, the Respondent father was served with an Offer to Settle and a Request for Information seeking financial disclosure.
[15] The Request for Information states:
By way of a sworn Affidavit with Exhibits:
A copy of your complete Income Tax and Benefit Return statements including all schedules and attachments for 2016, 2017, 2018, 2019 and 2020;
A copy of your Notice of Assessments and/or Notice of Reassessments for 2016, 2017, 2018, 2019 and 2020;
A copy of all income slips (T4s, T4As, T5s, etc.) received for any of the taxation years since 2016 for which a tax return has not been filed;
Proof of any payments of support made directly to, or for the benefit of, the support recipient or a child (not through Family Responsibility Office) for the last 12 months and the years since date of separation of December 1, 2016; Document Ref: XH89X-NVZMH-NH3N7-47BYR Page 1 of 2 Form 20: Request for Information (page 2) Court File Number FS-20-17098
All documentation supporting/proving assets/debts listed in either Form 13 or 13.1 Financial Statement;
A letter from your employer(s), including but not limited to Multimatic Manufacturing, confirming your employment and annual or hourly income and any other relevant information regarding your current employment;
A copy of all benefit information circulars or benefit booklets outlining all employee benefits for health care, dental care, prescriptions and life insurance. If no circular or booklet is available, a detailed statement from the employer or the group plan insurer outlining these benefits.
A copy of your most recent three consecutive paystubs;
A copy of your up-to-date Curriculum Vitae;
A copy of your current lease agreement and/or proof of monthly payment of rent for 2021;
If any of the above noted requests cannot be complied with within 30 days, then the Respondent, Abubaka Dick, shall by way of an Affidavit, provide proof of the efforts made by him to comply with all requests herein and an approximate date of when the requests shall be fulfilled.
[16] The Respondent has not acknowledged nor responded to either document.
[17] The importance of timely and full financial disclosure by a parent paying child support was emphasized by the Supreme Court of Canada in Colucci v. Colucci, 2021 SCC 24:
[49] The pivotal role of disclosure comes as no surprise since the premise underlying the Guidelines “is that the support obligation itself should fluctuate with the payor parent’s income” (D.B.S., at para. 45). The structure of the Guidelines thus creates an informational asymmetry between the parties. In a system that ties support to payor income, it is the payor who knows and controls the information needed to calculate the appropriate amount of support. The recipient does not have access to this information, except to the extent that the payor chooses or is made to share it. It would thus be illogical, unfair and contrary to the child’s best interests to make the recipient solely responsible for policing the payor’s ongoing compliance with their support obligation.
[50] This is why frank disclosure of income information by the payor lies at the foundation of the child support regime. In Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6, the Court of Appeal described the duty to disclose financial information as “[t]he most basic obligation in family law” (para. 11). A payor’s failure to make timely, proactive and full disclosure undermines the policies underlying the family law regime and “the processes that have been carefully designed to achieve those policy goals” (Leitch v. Novac, 2020 ONCA 257, 150 O.R. (3d) 587, at para. 44). Without proper disclosure, the system simply cannot function and the objective of establishing a fair standard of support for children that ensures they benefit from the means of both parents will be out of reach (Michel, at para. 32, per Brown J.; Brear, at para. 19, per Pentelechuk J.A.).
[51] Full and frank disclosure is also a precondition to good faith negotiation. Without it, the parties cannot stand on the equal footing required to make informed decisions and resolve child support disputes outside of court. Promoting proactive payor disclosure thus advances the objectives — found in s. 1 of the Guidelines — of reducing conflict between the parties and encouraging settlement.
[52] In line with these realities, courts have increasingly recognized that the payor’s duty to disclose income information is a corollary of the legal obligation to pay support commensurate with income (Brear, at paras. 19 and 69, per Pentelechuk J.A.; Roseberry v. Roseberry, 2015 ABQB 75, 13 Alta. L.R. (6th) 215, at para. 63; Cunningham v. Seveny, 2017 ABCA 4, 88 R.F.L. (7th) 1, at paras. 21 and 26). As explained by Brown J., speaking for the full Court in Michel, payor parents “are subject to a duty of full and honest disclosure — a duty comparable to that arising in matrimonial negotiations” (para. 33, referencing Rick v. Brandsema, 2009 SCC 10, [2009] 1 S.C.R. 295, at paras. 47-49). Courts and legislatures have also implemented various mechanisms to incentivize and even require regular ongoing disclosure of updated income information by the payor, along with tools to move proceedings forward in the face of non-disclosure. Those mechanisms include imputing income to payors who have failed to make adequate disclosure, striking pleadings, drawing adverse inferences, and awarding costs. By encouraging timely disclosure, these tools reduce the likelihood that the recipient will be forced to apply to court multiple times to secure disclosure. [Emphasis added]
[18] The Applicant is a working mother of two young children who is shouldering the full burden of raising her children without appropriate financial or other support from the Respondent father as he chooses to do as he pleases despite his legal obligations. That is unacceptable.
[19] In these circumstances, given the obligations on this Court under Rule 2 of the Family Law Rules, and the direction outlined in Colucci, I find that it is just to order that the Respondent’s Answer shall be struck if, by November 19, 2021, he does not deliver to the Applicant: (1) the documents required by the Request for Information dated August 5, 2021; (2) an updated Financial Statement.
Child Support and Imputation of Income
[20] The Respondent is employed as a welder. In her home, the Applicant has found the following T4 slips issued to the Respondent by Multimatic Manufacturing which show that the Respondent earned $35,524 in 2013, $37,328 in 2014 and $41,626 in 2015.
[21] The Respondent remains employed by Multimatic Manufacturing although he now works weekends.
[22] The Applicant provides evidence from a Government of Ontario website that shows that the median income for a welder is $50,501 per year.
[23] The income of a spouse for the purposes of calculating child support under the Divorce Act is outlined in sections 15-19 of the Guidelines.
[24] Section 19 of the Guidelines provides that a court may impute such amount of income to a spouse as it considers appropriate in the circumstances.
[25] In Bak v. Dobell, 2007 ONCA 304, at para. 36, the Ontario Court of Appeal stated:
When considering whether a circumstance is an appropriate one in which to impute income, a court will bear in mind the objectives of the Guidelines to establish fair support based on the means of the parents in an objective manner that reduces conflict, ensures consistency and encourages resolution.
[26] Given the Respondent’s income increased in 2014 and 2015, and given that he remains with the same employer, and given his failure to make financial disclosure, I find that it is fair to impute income of $50,000.00 from October 1, 2021.
[27] Based on an annual income of $50,000.00, I order that the Respondent pay child support of $755 per month commencing November 1, 2021.
[28] The Applicant is a nurse at a local hospital and projects earning $91,940.00 in 2021. She works 12 hours shifts on a rotating basis. The Applicant incurs costs of about $2,000 per month for childcare while she is at work – both privately at night or on weekends and at a childcare centre for care before and after school. Based on their relative incomes, the Respondent shall pay 35% of all childcare expenses and section 7 expenses incurred by the Applicant from October 1, 2021.
Retroactive Child Support and Section 7 Expenses
[29] With respect to the Applicant’s claim for an order for table child support and section 7 expenses from July 1, 2020, such order is not a temporary order within the meaning of Rule 2 of the Family Law Rules and thus is not relief available on a motion brought under Rule 14(1) of the Family Law Rules. Such relief represents a final order that can be sought at trial or on a motion for summary judgment. Accordingly, those claims on this motion are dismissed on a without prejudice basis to the Applicant.
Costs
[30] The Applicant retained counsel to prepare her motion materials on a limited retainer basis. Their account to the Applicant in respect of preparation of materials for this motion was $3,708.06. In addition, a self-represented party is entitled to compensation for time that would otherwise have been spent by a lawyer: McMurter v McMurter, 2017 ONSC 725, at para. 23. In my view $400 is appropriate for her time for this motion and the Case Conference before Justice Nakonechny.
[31] Proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs under the Family Law Rules. While the Respondent’s failure to comply with this obligation to make final disclosure is clearly unreasonable I unable to find that that that his actions reflect an intent to inflict financial harm on the Applicant and thus award costs on a full indemnity basis: S. (C.) v. S. (M.) (2007), 2007 20279 (ON SC), 38 R.F.L. (6th) 315, paras. 17-18, aff'd 2010 ONCA 196.
[32] I find that it fair and reasonable to order that the Respondent pay costs of $3,400.00, inclusive of disbursements and taxes, to the Applicant within 30 days.
Conclusions
[33] I make the following temporary Orders pursuant to the Divorce Act that:
(1) An annual income of $50,000 shall be imputed to the Respondent for the purposes of calculating child support including section 7 expenses for the period commencing October 1, 2021 and thereafter;
(2) Commencing October 1, 2021, the Respondent shall pay to the Applicant, Yasmin Mohamed, ongoing child support in the amount of $755 per month for the children, Nylah Dickson, born July 24, 2017, and Jahmiel Dickson, born September 13, 2014;
(3) Commencing October 1, 2021, the Respondent shall pay 35% of all childcare expenses and other section 7 expenses incurred by the Applicant within 15 days of the delivery of the Applicant’s demand for reimbursement;
(4) By November 15, 2021, the Respondent shall pay costs of $3,400.00, inclusive of taxes and disbursements, in respect of this motion and the Case Conference before Justice Nakonechny.
(5) Unless the support order is withdrawn from the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the Order shall be paid to the Director, who shall pay them to the person to whom they are owed. A support deduction order will be issued;
(6) The Respondent shall provide the Applicant and the Director of the Family Responsibility Office notification of any change in address or employment, including fulling particulars about the change, within ten days of the change taking place;
(7) This Order bears interest at a post-judgment interest rate of 3 % effective from the date of this Order. A payment in default bears interest only from the date of default;
(8) The Respondent’s approval as to the form and content of the Orders arising from this motion is dispensed with.
[34] Given this Court’s obligations under Rule 2 of the Family Law Rules, and the direction outlined in Colucci, I find that, in these circumstances, it is just to order that the Respondent’s Answer shall be struck if, by November 19, 2021, he does not deliver to the Applicant: (1) the documents required by the Request for Information dated August 5, 2021; and (2) an updated Financial Statement.
[35] A motion will be provisionally scheduled for November 26, 2021, at 9:00 am before me in the event that the Applicant brings a motion for an order to: (1) have the Respondent’s Answer struck for non-compliance with the Rules and this Order; (2) proceed with an uncontested trial for the balance of the relief claimed in her Application.
Mr. Justice M. D. Faieta
Released: October 19, 2021
COURT FILE NO.: FS-20-17098
DATE: 20211019
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
YASMIN MOHAMED
Applicant
– and –
ABUBAKA DICK
Respondent
REASONS FOR DECISION
Mr. Justice M. D. Faieta
Released: October 19, 2021