COURT FILE NO.: FC-20-1637

DATE: 2021/11/19

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

LISA MICHELINE COLASANTE Applicant

– and –

HUSSEIN ALI DEBOUK Respondent

Jeremy Dolgin, for the Applicant

No one appearing for the Respondent

HEARD: November 10, 2021 via Zoom

REASONS FOR DECISION

CORTHORN J.

Introduction

[1] Lisa Micheline Colasante and Hussein Ali Debouk were married on July 3, 2013 in Las Vegas, Nevada. They separated on February 13, 2018. They have one child, Armani Ali Colasante (DOB: June 10, 2018 and “Armani”).

[2] Ms. Colasante’s application is for a divorce and corollary relief related to Armani. Mr. Debouk did not file an Answer. The matter proceeded to an uncontested trial.

[3] The evidence upon which the court relies in support of the order made at the conclusion of this ruling includes the following:

• A certified copy of the marriage certificate from the State of Nevada;
• The Clearance Certificate from the Department of Justice Canada;
• Ms. Colasante’s affidavit for divorce sworn on January 14, 2021;
• Ms. Colasante’s affidavit for an uncontested trial sworn on January 14, 2021; and
• Viva voce testimony from Ms. Colasante at trial.

[4] The pre-requisites for a divorce to be granted are met. Some analysis is required with respect to the issues of decision-making authority, primary residence, parenting time, child support, and international travel.

Analysis

a) Decision-Making and Primary Residence

[5] Based on Ms. Colasante’s written and oral evidence, I find that (a) Armani has resided exclusively with Ms. Colasante since the parties separated, and (b) Ms. Colasante has been solely responsible for decision-making with respect to Armani. Ms. Colasante describes Armani as a healthy and happy three-year old boy who loves outdoor activities. Ms. Colasante teaches Grades 3 and 5 at a Kanata primary school. She has supportive parents.

[6] I find that it is in Armani’s best interests that he reside primarily with Ms. Colasante and that she have sole decision-making authority with respect to Armani. In making that finding, I have taken into consideration the factors, as applicable, set out in ss. 24(2)-(4) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended (“CLRA”).

b) Parenting Time

[7] Ms. Colasante’s evidence is that Mr. Debouk’s parenting time with Armani since the parties separated has been sporadic in nature. In 2019, for example, there was a period of several consecutive months during which Mr. Debouk did not have parenting time. There have also been shorter and intermittent periods when Mr. Debouk did not have parenting time. Ms. Colasante attributes the sporadic nature of the parenting time to mental health issues from which Mr. Debouk suffers and her concerns for Armani during periods when Mr. Debouk is unwell.

[8] Ms. Colasante testified that, since January 2021, Mr. Debouk has been having parenting time with Armani on Friday evenings. Mr. Debouk’s time with Armani begins following Armani’s time at daycare and concludes at 8:00 p.m. Also since January 2021, Mr. Debouk has been having parenting time with Armani on Sundays from 11:30 a.m. to 7:30 p.m.

[9] It is Ms. Colasante’s evidence that Mr. Debouk’s mental health issues can result in him becoming threatening and verbally abusive to Ms. Colasante and to her mother. Ms. Colasante presents as empathetic to Mr. Debouk’s mental health issues while at the same time concerned for Armani’s, her, and her mother’s well-being. There is no evidence of any intention on Ms. Colasante’s part to attempt to minimize Mr. Debouk’s parenting time with Armani during periods in which Mr. Debouk is not experiencing mental health challenges.

[10] I find that, at present, it is in Armani’s best interests that Mr. Debouk’s parenting time be at the discretion of Ms. Colasante. In making that finding, I have taken into consideration the factors, as applicable, set out in ss. 24(2)-(5) of the CLRA. I have also taken into consideration the principle set out in s. 24(6) of the CLRA, which provides as follows: “In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.”

[11] If, over time, Mr. Debouk’s mental health challenges diminish and he is able to demonstrate that he is routinely able to meet the demands of parenting Armani, it remains open to Mr. Debouk to seek a fixed schedule for parenting time. It would be open to him to do so through negotiation with Ms. Colasante or, if a negotiated agreement cannot be reached, by way of a Motion to Change.

c) Child Support

[12] Based on Ms. Colasante’s written and viva voce evidence, I make the following findings with respect to Mr. Debouk’s income from June 2018 to the present:

• In the two years leading up to the date of separation, Mr. Debouk worked as a foreman in the field of insulation installation. Mr. Debouk was employed by Thermal Insulation. In those years, Mr. Debouk’s annual income was $85,000. Ms. Colasante has knowledge of Mr. Debouk’s income because the parties did their income tax returns together in those years;
• As of December 2018, Mr. Debouk lost his position with Thermal Insulation. He was thereafter unemployed for a short period;
• In early 2019, Mr. Debouk obtained a position with “Thermec”, as an insulation installer, earning approximately $60,000 per year (i.e., the salary which Mr. Debouk had been earning in a similar position with Thermal Insulation before being promoted by that employer to foreman);
• In 2021, Mr. Debouk lost his position with Thermec. For at least the past six consecutive months, Mr. Debouk has been employed by “Modern Niagara” as a foreman in the field of insulation installation and earning approximately $80,000; and
• All of Mr. Debouk’s work in the field of insulation installation is in a unionized environment which leads to relative consistency from one employer to the next.

[13] Ms. Colasante is aware of the circumstances that led to Mr. Debouk losing his position with Thermal Installation. Her belief is that the termination of employment was handled by the employer in a manner that permitted Mr. Debouk to claim Employment Insurance. Ms. Colasante is unaware of to the reason why Mr. Debouk lost his position with Thermec. Ms. Colasante does not have any specific information upon which to base a belief as to the duration of those two periods of unemployment. Her best estimate in that regard is a period of one to four months on each occasion.

[14] Ms. Colasante submits that she is entitled to child support based on consistent employment (i.e., without any reduction for periods of unemployment). Her position is that periods of unemployment are due to Mr. Debouk’s conduct resulting in his loss of employment. Ms. Colasante submits that, in any event, Mr. Debouk was required to pursue Employment Insurance in an effort to maximize his income for the purpose of meeting his child support obligation.

[15] Ms. Colasante acknowledges that Mr. Debouk paid 50 per cent of the daycare expenses for the period from September 2019 to March 2020. He has not otherwise contributed to daycare or Section 7 expenses incurred by Ms. Colasante. At this time, Ms. Colasante is not seeking any contribution from Mr. Debouk with respect to Section 7 expenses.

[16] I pause to note that Mr. Debouk’s contribution towards daycare expenses for a brief period has no impact whatsoever on his child support obligations.

[17] It appears that there was and remains a demand for individuals skilled in the field of insulation installation. Mr. Debouk was relatively easily able to find employment after his employment with each of Thermal Installation and Thermec came to an end.

[18] With respect to Mr. Debouk’s income for the years 2018 to the present, I make the following findings:

• Mr. Debouk’s loss of employment with Thermal Insulation and Thermec was due to circumstances within his control;
• Mr. Debouk had the ability to be re-employed with a minimal period of unemployment;
• The Employment Insurance benefits to which Mr. Debouk was entitled – whether or not he made a claim for such benefits – would have served to minimize the reduction in Mr. Debouk’s income;
• For the purpose of the calculation of child support, Mr. Debouk’s annual income for the years 2018 through 2021, including where necessary on the basis of imputation of income, is as set out below. The child support, based on the Federal Child Support Guidelines, SOR/97-175, is also as set out below:

2018 $85,000 $792/mo. 2019 $60,000 $556/mo. 2020 $60,000 $556/mo. 2021 $60,000 – January 1 to April 30 $556/mo. $80,000 – May 1 to December 31 $745/mo.

[19] The arrears of child support for the period commencing February 14, 2018 and ending November 30, 2021 total $29,099.00, are calculated as follows:

Feb. 14 to Dec. 31, 2018 $ 8,316 (10.5 x $792) Jan. 1 to Dec. 31, 2019 $ 6,672 (12 x $556) Jan. 1 to Dec. 31, 2020 $ 6,672 (12 x $556) Jan. 1 to Apr. 30, 2021 $ 2,224 (4 x $556) May 1 to Nov. 30, 2021 $ 5,215 (7 x $745)

[20] Commencing December 1, 2021, Mr. Debouk shall pay $745.00 per month in child support.

[21] The order made at the conclusion of these reasons includes terms which address the production of Mr. Debouk’s income tax documentation (return and notice of assessment/re-assessment) and a review of the child support payable, both on an annual basis.

[22] The amount payable for child support is subject to enforcement through the Family Responsibility Office, as is the portion of costs attributed to the portion of the application related to the claim for child support.

d) International Travel

[23] Ms. Colasante did not identify any immediate plans for international travel. She requested, and she is granted, relief permitting her to both apply for a passport for and travel internationally with Armani without Mr. Debouk’s consent. She acknowledges that it is reasonable that she be required to inform Mr. Debouk of any plans for international travel. She is required to provide Mr. Debouk with 30 days notice of any plans to travel internationally with Armani.

[24] In principle, Ms. Colasante does not oppose Mr. Debouk travelling internationally with Armani. Given Mr. Debouk’s limited and sporadic historical parenting time and Ms. Colasante’s concerns about the potential for Mr. Debouk to experience a decline in his mental health from time to time, it is reasonable to provide that Mr. Debouk is entitled to travel internationally with Armani if Ms. Colasante consents to such travel and that such consent is not unreasonably withheld.

Disposition

[25] For the reasons set out above, I order as follows:

1. Lisa Micheline Colasante and Hussein Ali Debouk, who were married at Las Vegas, Nevada, on July 1, 2013, shall be divorced and that the divorce shall take effect 31 days after the date of this order.
2. Lisa Micheline Colasante shall have sole decision-making authority for Armani Ali Colasante (DOB: June 10, 2018 and, hereinafter, “the Child”).
3. The Child shall reside primarily with Lisa Micheline Colasante.
4. Hussein Ali Debouk shall have parenting time with the Child at the discretion of Lisa Micheline Colasante.
5. Hussein Ali Debouk shall pay child support for the period from February 14, 2018 through November 30, 2021 as follows: a) From February 14 to December 2018 in the amount of $792.00 per month and based on Mr. Debouk’s annual income of $85,000 (with the arrears for that period set at $8,316.00); b) From January 1 to December 31, 2019 in the amount of $556.00 per month and based on Mr. Debouk’s annual income of $60,000 (with the arrears for that period set at $6,672.00); c) From January 1 to December 31, 2020 in the amount of $556.00 per month and based on Mr. Debouk’s annual income of $60,000 (with the arrears for that period set at $6,672.00); d) From January 1 to April 30, 2021 in the amount of $556.00 per month and based on Mr. Debouk’s annual income of $60,000 (with the arrears for that period set at $2,224.00); and e) From May 1 to November 30, 2021 in the amount of $745.00 per month and based on Mr. Debouk’s annual income of $80,000 (with the arrears for that period set at $5,215.00).
6. The arrears in child support owing for the period from February 14, 2018 to November 30, 2021 are set at $29,099.00.
7. Commencing on December 1, 2021 and on the first day of each month thereafter, Hussein Ali Debouk shall pay to Lisa Micheline Colasante, child support in the amount of $745.00 per month.
8. Commencing in 2022 and in each subsequent year until child support is no longer payable, Hussein Ali Debouk shall, no later than July 1, produce to Lisa Micheline Colasante, copies of his income tax return and notice of assessment/re-assessment for the previous calendar year for the purpose of review and, if necessary, adjustment of the amount of child support payable.
9. The child support payable pursuant to paragraphs 5, 6, and 7 shall be enforceable through the Family Responsibility Office. Unless the order is withdrawn from the Director, it shall be enforced by the Director and the amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.
10. Lisa Micheline Colasante shall be entitled to apply for a passport for and travel internationally with the Child without the consent of Hussein Ali Debouk.
11. Lisa Micheline Colasante shall provide Hussein Ali Debouk with notice in writing at least 30 days in advance of the departure date for any international travel with the Child. Said notice shall, at a minimum, include the departure date, the travel destination(s), and the return date.
12. Hussein Ali Debouk shall not be entitled to travel internationally with the Child except with the consent in writing of Lisa Micheline Colasante. Such consent shall not be unreasonably withheld.
13. Hussein Ali Debouk shall provide Lisa Micheline Colasante with notice in writing at least 60 days in advance of the departure date for any international travel with the Child. Said notice shall, at a minimum, include the departure date, the travel destination(s), and the return date.
14. The income tax returns, notices of assessment/re-assessment, and notices of international travel referred to in paragraphs 8 and 13, above, shall be sent by regular mail to the last known residential address for Lisa Micheline Colasante.
15. The notice referred to in paragraph 11, above, shall be sent by regular mail to the last known residential address for Hussein Ali Debouk.

Costs

[26] Rule 24(1) of the Family Law Rules, O. Reg. 114/99 (“FLR”), establishes a presumption that the successful party in a proceeding is entitled to their costs. Ms. Colasante is the successful party in this proceeding. There is nothing about the manner in which this proceeding was conducted on her behalf that supports a finding that the presumption in r. 24(1) has been rebutted. In setting the amount for costs, I have considered the factors listed in r. 24(12)(a)(i)-(vi) that are relevant to this proceeding.

[27] Following the hearing of the uncontested trial, counsel for Ms. Colasante submitted a bill of costs. That document provides a breakdown of the work done on Ms. Colasante’s behalf. The categories of work identified include communication with the client and with the opposing party, communication with the court, preparation of the application materials (including those for the uncontested trial), preparation for the trial, and attendance at trial.

[28] There are two timekeepers whose work is reflected in the bill of costs: Counsel for Ms. Colasante and a law clerk. I find that there was an appropriate degree of delegation of tasks with the result that fees incurred were reasonable given the nature of the work done by each timekeeper: 7.1 hours for counsel and 3.1 hours for the law clerk. I find that the hourly rates for counsel ($390 for a 1997 call) and the law clerk ($150 for 16 years of experience) are reasonable.

[29] I find that the disbursements are reasonable with the exception of the $115 claimed for a “software fee”. That item is not explained. The remaining disbursements are reasonable: $220 for process serving and filing of documents; and $420 for filing fees. HST is over and above those amounts.

[30] The full indemnity costs claimed total $4,186.65 for fees, disbursements, and HST. In summary, I fix Ms. Colasante’s costs at $4,000.00 all-inclusive. I see no reason why she should not be fully reimbursed for the expenses incurred.

[31] For the purpose of FRO enforcement, I allocate 60 per cent of those costs to the subject of child support. The majority of Ms. Colasante’s evidence at trial related to Mr. Debouk’s changes in employment over time, his income, and the unionized nature of his work.

[32] For clarity, $2,400.00 of the $4,000.00 awarded in costs is allocated to the claim for child support. Payment of that portion of the costs shall be enforceable through FRO. As with the order with respect to enforcement of Mr. Debouk’s child support obligations, unless the order with respect to the enforcement of the child support portion of costs is withdrawn from the Director, it shall be enforced by the Director and the amounts owing under the costs portion of the order shall be paid to the Director, who shall pay them to the person to whom they are owed.

Madam Justice Sylvia Corthorn

Released: November 19, 2021

COURT FILE NO.: FC-20-1637 DATE: 2021/11/19

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

LISA MICHELINE COLASANTE Applicant

– and –

HUSSEIN ALI DEBOUK Respondent

REASONS FOR DECISION

Madam Justice Sylvia Corthorn

Released: November 19, 2021