SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Peuly Rahman, Applicant
AND:
Sayeed Islam, Respondent
BEFORE: M. Kraft, J.
COUNSEL: Applicant, In Person
Respondent, did not attend
HEARD: In writing and in person, May 16, 2022
REASONS FOR DECISION
M. Kraft, J.
Nature of Proceedings:
1The parties were married in Toronto on June 26, 1998. They separated in March 2006 and were divorced in July 2008.
2They have one child of their marriage, R., who is 19 years of age.
3This matter proceeded by way of an Uncontested Trial. The applicant (“wife”) seeks the following orders:
a. The respondent (“husband”) to be imputed with an annual income of $175,143 for child support purposes for the period January 1, 2012 to and including December 31, 2020;
b. The husband to pay the wife retroactive table child support arrears, fixed in the sum of $$133,188.45 for the period August 1, 2008 to and including December 31, 2020;
c. The husband to pay the wife arrears for retroactive s.7 expenses in the sum of $39,495, for the period August 1, 2008 to and including December 31, 2021;
d. The husband to pay ongoing child support in the sum of $837 a month, commencing January 1, 2021 until the child is no longer a child of the marriage, based on an imputed annual income of $90,500, as per the Order of Nakonechny, J., dated February 26, 2021;
e. The husband to pay the wife arrears of child support for the period January 1, 2021 to and including May 1, 2022, in the fixed sum of $12,687.48 as per the Nakonechny order;
f. The husband to pay the wife lump sum child support in the sum of $50,422 representing his proportionate share, as 58%, of the child’s future s.7 expenses for his post-secondary educational expenses for the period September 2021 to May 20251; and
g. Costs of the Uncontested Trial in the sum of $15,072.78.
4I have considered the extensive material filed in support of the Uncontested Trial and the oral submissions made by the wife on May 16, 2022.2 On May 16, 2022, I released an Endorsement asking the wife to file a supplementary affidavit within two weeks, to provide the court with additional details and documentary proof of the child’s s.7 expenses for which she seeks retroactive reimbursement for the period 2008 and onward and other evidence. The wife filed a supplementary affidavit, sworn on May 31, 2022. I reserved my decision. These reasons set out my findings and disposition of the matters at issue.
Brief Background
5The parties were both born in Bangladesh. They met in Toronto in September 1997.
6The husband is currently 44 years of age, and the wife is almost 42 years of age.
7The parties were married on June 26, 1998. Their 19-year-old son, R., is in his first year of university at the Toronto Metropolitan University (formerly Ryerson University) and is scheduled to graduate with an undergraduate degree in the spring of 2024.
8The parties separated in 2006. They were divorced in July 2008. The court was not provided with a copy of the Divorce Judgment.
9The parties agreed in August 2008 that the husband would pay the wife child support in the sum of $114 a month. There was no domestic contract entered into. It was a verbal agreement between the parties. The child support agreement did not form part of the divorce order. The husband never paid the wife child support pursuant to this agreement.
10In late 2008/2009, the husband left Canada and went to reside in Bangladesh. He has since been married four times and lived with a fifth woman. He has two children from these other relationships. The husband returned to Canada on and off and lived in Vietnam for a period of time. On April 13, 2021, the husband returned to Bangladesh. He is expecting a baby in the summer of 2022.
11The husband has essentially no relationship with R. He has not seen R. since he was 4 ½ years old. They last spoke on the telephone in 2011.
12Five years after separation, in April 2011, the wife commenced an application seeking child support from the husband. The husband did not participate in the proceedings. On August 22, 2011, at an uncontested trial, Boswell, J. made a final order (“Boswell order”), finding that the husband’s annual income was $34,000 and ordered him to pay child support for the parties’ son in the sum of $316 a month, commencing September 1, 2011. Boswell, J. also dispensed with the husband’s consent to enable the wife to issue or renew a Canadian passport for the child and to permit the wife to travel with the child outside of Ontario.
13The husband never paid child support to the wife in accordance with the Boswell order. The wife registered the Boswell order with the Family Responsibility Office (“FRO”). After separation, the husband spent significant periods of time in Bangladesh, making it very difficult for the FRO to enforce accumulated child support arrears.
14Sometime in 2012, the husband was offered a position at Google in the United States (“U.S.”) as a Senior Systems Engineer. He declined this job offer. The wife submits that the husband did not accept the job offer by Google because he realized a background check for employment purposes would uncover the fact that he uses various identities in both Canada and the U.S., and/or that he has a U.S. criminal record. The husband’s wife in 2012, in Bangladesh, was Kazia Nazia Mustary (“Nazia”). A notarized letter from Nazia, dated May 19, 2022, attached as an exhibit to the wife’s supplementary affidavit, confirms that the husband was offered this position at Google and declined the offer because of his concerns about a background check. It is on this basis that the wife asks the court to impute the husband with an annual income equivalent to what the husband could be earning as a Senior Systems Engineer at Google, which she submits is $175,143 a year, for child support purposes from 2012 to 2020.
15In Canada, the husband uses the name Sayeed Mohammed Islam and his date of birth is March 14, 1978. In the U.S., the husband uses the name Muhammed Saidul Bahar and his date of birth is January 12, 1977. The husband has a social security number and an expired Florida driver’s licence using this identity in the U.S. According to the wife, he also has a criminal record in the U.S. under the name of Muhammed Saidul Bahar. The husband denies that he has a criminal record.
16Attached as Exhibits to the wife’s Form 23C: Affidavit for Uncontested Trial, and the wife’s supplementary affidavit, are copies of background check reports of the husband proving that he has both a Canadian and U.S. identity; a statement from a private investigator she retained, Gerald Wiebeck, of Spear Services Investigations, who confirmed: that (a) he spoke with the husband’s former wife, Kristen Frazier Alom, a resident of New Jersey; (b) she and the husband were married in 1997 in New Jersey; and (c) Muhammed Saidul Bahar and Sayeed Islam, are one and the same person; a statement from the husband’s former wife in Bangladesh, Nazia, confirming that (a) the husband used his Canadian identity when they were married; the husband was offered a job as a Senior Systems Engineer at Google in the U.S. in 2012; (b) the husband told her he had immigration issues in the United States arising from when he lived there between 1995-1997, before he moved to Canada in 1998; (c) the husband told her he was concerned that if Google conducted a background search of him it could create a lot of problems; and (d) that he turned down the offer from Google to work in the U.S., after trying to see if he could join Google in India or the Singapore office and there was no such opportunity.
Litigation History
17As indicated above, the husband never complied with the Boswell order and, as a result, the FRO began to enforce the order. Ultimately, the husband’s Ontario driver’s licence was suspended. In October 2019, when faced with being unable to renew his Canadian passport at the Canadian Embassy in Bangladesh, and the FRO scheduled a Default Hearing, the husband had no alternative but to take steps to address his child support arrears.
18By October 17, 2019, child support arrears had accumulated under the Boswell order in the sum of $21,280.78. On November 29, 2019, the husband brought a Motion to Change seeking to change his child support obligation set out in the Boswell order, in an attempt to address FRO enforcement proceedings.
19Having brought a Motion to Change, the husband was required to file a sworn financial statement, for the first time, which enabled the wife the opportunity to obtain some child support for the child. In the husband’s Form 15A: Change Information Form, dated October 17, 2019, he deposed that his annual income for child support purposes was $101,998 and he sought to vary the child support for the child upward to $925.78 a month commencing January 1, 2020. He also sought to: reduce the child support arrears that had accrued under the Boswell order from $21,280.78 to $8,222 as of October 21, 2019; dismiss the FRO enforcement proceedings against him; suspend the FRO federal licence denial proceeding against him, allowing him to reinstate his driver’s licence and passport; and he sought access to the child.
20As part of the husband’s Form 15A, he deposed that his income in 2019 was $101,998; his income in 2018 was $56,972 and his income in 2017 was $20,097.
21On January 9, 2020, the wife served and filed a Response to the Motion to Change seeking to impute income to the husband in the sum of $175,143 a year for the period January 2012 onward and to enable her to receive retroactive child support in accordance with the Federal Child Support Guidelines, SOR/97-175 (“CSG”).
22On March 13, 2020, the wife filed an amended Response to the Motion to Change seeking retroactive child support from 2008 onward, including s.7 expenses.
23On September 18, 2020, the husband served a Reply to the wife’s Response to the Motion to Change.
24On February 26, 2021, the husband and his counsel attended a case conference before Nakonechny, J., at which, the husband was ordered to pay the wife child support in the sum of $837 a month as of January 1, 2021, based on him being imputed with earning an annual income of $90,500 as per the CSG (“Nakonechny order”). The husband was also ordered to contribute to the child’s s.7 expenses on the basis of him paying his proportionate share of 58% for such expenses and to attend Questioning. A combined Settlement Conference/Trial Management Conference (“SC/TMC”) was scheduled for July 5, 2021.
25The husband did not comply with the Nakonechny order. He did not pay the wife child support nor did he attend Questioning.
26Between May 2019 and April 2021, the husband paid off the outstanding amount of child support owing under the Boswell order which, at that time, had accumulated to $32,137.79.
27The SC/TMC was adjourned from July 5, 2021 to August 18, 2021. It was then further adjourned to December 6, 2021, at the request of the husband’s counsel.
28The husband was obligated to notify the FRO of any changes in his address within 10 days of the Nakonechny order. In an affidavit, sworn on January 24, 2022, filed by the husband to delay this Uncontested Trial, the husband deposed that he returned to Bangladesh on April 13, 2021. His address is unknown to the wife. The FRO has been unable to contact the husband since July 2021. They have, once again, placed a Federal Support Deduction Notice in place, effective September 22, 2021.
29On November 25, 2021, the wife served and filed her SC/TMC brief, Trial Scheduling Endorsement Form and offer to settle. She did not receive any brief from the husband, nor did she receive an offer to settle.
30On December 6, 2021, the SC/TMC proceeded before Nakonechny, J. The husband filed no materials for the hearing and did not attend. However, his counsel attended and advised the court that the husband left Canada and moved back to Bangladesh at the recommendation of his doctor. The husband’s counsel also advised that he wished to be removed as counsel of record for the husband.
31Nakonechny, J. scheduled an Uncontested Trial for January 25, 2022, and granted the wife leave to bring a motion to strike the husband’s pleadings. The husband’s counsel was also ordered to bring his motion to be removed as counsel of record for the husband on January 25, 2022. The costs of the 50-minute attendance on December 6, 2021 was reserved to the judge hearing the Uncontested Trial.
32On January 4, 2022, the wife served her Form 23 Affidavit in support of the Uncontested Trial on the husband.
33On January 24, 2022, the day before the Uncontested Trial was to proceed, the wife received an email from the husband’s counsel, serving her with an affidavit from the husband in which he requested an adjournment of the Uncontested Trial. Despite the Endorsement of Nakonechny, J., dated December 6, 2021, the husband’s counsel had not brought a motion to be removed as his solicitor of record on January 25, 2022.
34On January 25, 2022, the parties appeared before me by video conference. The husband and his counsel were present remotely. The husband was in Bangladesh. I advised the husband that this was the last opportunity the court would be granting him to participate in these proceedings. I ordered the husband to attend Questioning on March 7, 2022; to serve and file a Form 23C: Affidavit for Uncontested Trial by April 22, 2022 at noon; to attend a SC/TMC on April 29, 2022 at 10:00 a.m.; and for the parties to attend a one-day trial on May 16, 2022. My Endorsement confirms that the husband and his counsel understood that if he did not follow the schedule I set out in my Order, the wife had leave to strike his Motion to Change by way of a 14B motion and he would lose his opportunity to participate in these proceedings. The costs of the December 6, 2021 attendance and the costs of the 1.5 hour attendance before me on January 25, 2022, was reserved to the judge hearing the one-day trial on May 16, 2022.
35The wife made arrangements for the Questioning to be conducted by video-conference with court reporters at Network North Reporting as per my Endorsement. She retained counsel to conduct the questioning and sent the husband’s lawyer the confirmation from the court reporter’s office and zoom link. On March 1, 2022, the wife served the husband with a Notice of Questioning.
36On March 4, 2022, the wife received an email from the husband’s counsel advising that he would be bringing a motion to be removed as counsel of record for the husband; that the husband would not be attending the Questioning scheduled for March 7, 2022; and for her to cancel the March 7, 2022 Questioning.
37On March 7, 2022, the wife attended the Questioning. The husband did not appear. A Certificate of Non-Attendance was issued and served on the husband’s counsel on March 7, 2022.
38As per my Endorsement, dated January 25, 2022, the wife brought a 14B motion to strike the husband’s pleadings. This 14B motion came before Papageorgiou, J. on May 10, 2022, who declined to grant it and, instead, said that it was not a motion to be brought by way of a 14B motion and that it ought to proceed orally. It is unknown whether Papageorgiou, J. had a copy of my Endorsement, dated January 25, 2022, in which I granted the wife leave to bring this motion by way of a 14B motion.
39Accordingly, at the commencement of the Uncontested Trial, I granted the wife’s motion to strike the husband’s pleadings.
40It is unknown whether the husband’s counsel brought a motion to be removed as his solicitor of record. Neither the husband nor his counsel appeared at the trial on May 16, 2022.
The Uncontested Trial took place before me on May 16, 2022. As set out above, in addition to the affidavit evidence filed by the wife, she made oral submissions
The Issues
41The issues to be determined on this Uncontested Trial are:
a. Does the husband owe the wife monthly retroactive child support commencing in 2008 or some other date?
b. What level of income, if any, should be imputed to the husband
i. for the period August 1, 2008 to and including December 31, 2012, if any?
ii. for the period starting January 1, 2012 to and including, December 31 2020, if any? and
iii. for the period January 1, 2021 to the present and ongoing, if any?
c. Does the husband owe the wife retroactive s.7 expenses for the child for the period April 1, 2008 to the present date and, if so, in what amount?; and
d. What is the husband’s ongoing child support obligation, both table and s.7 expenses?
Issue One: Does the husband owe the wife retroactive child support commencing in 2008 or some other date?
42This is a case where the wife is seeking retroactive increases in child support where there was a previous court order for child support, but this amount has been inadequate for some time.
43In D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, the Supreme Court of Canada, confirmed that retroactive child support can be advanced pursuant to s.15 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) despite the absence of a specific reference to retroactive relief in s.15.1 of the Divorce Act, as long as the child support obligation existed during the period encompassed by the retroactive claim.
44In the case at bar, the wife seeks retroactive child support for her 19-year-old son, who remains a child of the marriage, as defined by the Divorce Act given that he attends post-secondary school full-time. She seeks retroactive child support to 2008, when the parties were divorced.
45In D.B.S., the Supreme Court confirmed that retroactive child support orders are neither rare nor exceptional, and stated the following general principles:
a. Child support is the right of the child and a parent cannot barter away a child’s right to support, as per Willick v. Willick, 1994 28 (SCC), [1994] 3 S.C.R. 670. Parents have an obligation to support their children in an amount commensurate with their income, as required by the Child Support Guidelines. This obligation, and the child’s right to support, exist independently of any statute or court order.
b. Recipient and payor parents both have the responsibility to ensure the correct amount of child support is paid. While child support orders should provide payors with the benefit of predictability, and a degree of certainty in managing their affairs, such orders do not absolve payors or recipients of the responsibility to continually ensure that the child is receiving an appropriate amount of support.
b. In determining whether to award retroactive child support, payors’ interests in certainty must be balanced with fairness to the child and the need for flexibility. All factors must be examined, including the reason the recipient delayed in seeking child support, the conduct of the payor, the past and present circumstances of the child, and whether the retroactive award might entail hardship for the payor.
c. If the recipient is found to be entitled to a retroactive award, the general rule is that the award should go back to the date the recipient provided effective notice to the payor, but to no more than three years unless the payor has engaged in blameworthy conduct.
46In Colucci v. Colucci, 2021 SCC 24, 458 D.L.R. (4th) 183, the court held that it is no longer necessary to first ask whether retroactive relief is generally appropriate as soon as a past material change in circumstances is established: at para. 6. If a payor parent fails to disclose his income, as is the case in this matter, the court is permitted to impute income to him and draw inferences against him.
47In Michel v. Graydon, 2020 SCC 24, 449 D.L.R. (4th) 147, the Supreme Court determined that the obligation to support a child exists irrespective of whether one parent has pursued a claim against the other to enforce support since child support is a continued obligation. Child support is owed from the moment it ought to have occurred no matter the length of the delay: at para. 79. In the case at bar, the husband’s child support obligation began in 2006 when the parties separated, however, the wife is seeking child support from August 2008 onward when their divorce was finalized.
What is the Presumptive Date of Retroactivity?
48Pursuant to D.B.S., the date of effective notice is generally the date to which the award should be retroactive as it is a fair balance between certainty and flexibility. In D.B.S., it was held that it will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor parent: at para. 123. However, the presence of blameworthy conduct on the part of the payor will move the presumptive date of retroactivity back to the time when his/her circumstances changed materially: at para. 124.
49In this case, the payor began to engage in blameworthy conduct from the outset of the separation. However, it was not until the wife brought a motion for child support in April 2011, and the Boswell order was made, that the husband knew the wife was seeking child support and he ignored the proceedings entirely. Three years prior to that date is April 2008. The wife seeks retroactive child support to August 1, 2008. In any event, the court has the discretion to vary an existing order retroactively where the payor parent is found to be deficient in his/her support obligation.
50The wife’s initial response to the husband’s Motion to Change was to seek retroactive child support to 2012. She then amended her Response to the Motion to Change, seeking retroactive child support to the date of divorce in 2008. The parties reached a consensual agreement at the time they applied for the divorce that commencing August 1, 2008, the husband would pay the wife child support in the sum of $114 a month. However, this agreement was a verbal agreement. It did not form part of the divorce order. Nor did the parties codify this agreement into a separation agreement or Minutes of Settlement.
51The wife brought an application seeking child support formally from the husband in 2011. The Boswell order obliged the husband to pay the wife child support in the sum of $316 a month commencing September 1, 2011. Although the husband and wife reached an informal agreement about child support in 2008, the husband returned to Bangladesh and the parties did not have contact until 2010, when the wife reached out to the husband advising him directly that she needed to receive child support from him. In my view, therefore, the husband had effective notice in the first half of 2010 that the wife would be seeking child support from him. Child support orders based on a specific snapshot of circumstances which existed at the time the order was made are subject to variation if the factors upon which the order was based change, making the order no longer appropriate: D.B.S., at para. 64.
52In considering my discretionary analysis, I am to strive to achieve a fair balancing of the three interests at play in claims for retroactive relief, namely: the child’s interest in a fair standard of support; the payor’s interest in flexibility; and the interest of the child and recipient in certainty. Applying the four D.B.S. factors to this case, I find a retroactive child support order is appropriate and that any child support order be retroactive to August 1, 2008, as sought by the wife, since that is three years prior to when the wife issued the within application seeking child support from the husband.
a. The First D.B.S. Factor: Did the Wife have an understandable reason for the delay in giving effective notice of her claim or in seeking child support relief from the court?
53This is not a circumstance where the wife could have brought a claim for child support, and/or a variation of the Boswell order earlier, but did not.
54The parties’ separation occurred as a result of an incident of physical violence between them. On February 12, 2006, the husband was arrested for assault. He was released on bail on February 15, 2006.
55According to the wife, the husband left to go to Bangladesh in March 2006 to avoid penalties relating to the assault charge.
56In December 2007, the husband returned to Canada, retained criminal counsel and was ultimately discharged with respect to the criminal charges.
57The wife began the divorce process in December 2007. Upon receiving pressure from the husband, the wife agreed to a child support arrangement where she would receive $114 a month in child support from the husband; he agreed to provide her with annual income disclosure; and to pay more child support when he earned more income. After reaching this agreement, the parties retained a paralegal service and finalized their divorce in July 2008. The divorce order was silent as to child support.
58The husband never paid the wife child support pursuant to his agreement to pay her $114 a month. Instead, in 2008/2009, he left for Bangladesh and the wife had no contact with him.
59At the beginning of 2010, the wife was able to locate a telephone number for the husband in Bangladesh and she called, asking him to contribute toward her child-related expenses and to pay child support. The husband refused to provide the wife with his address in Bangladesh or to give her any income information. He threatened her for asking for child support.
60In August 2010, the wife was contacted by an individual named Chad Sultana Chokory (“Chokory”). Chokory advised the wife that she and the husband had been married on September 25, 2008 in Bangladesh and had separated in July 2010. Chokory told the wife she was assaulted by the husband in Bangladesh; she lost an unborn baby as a result of the physical assault; and the husband had been incarcerated for one month in Bangladesh as a result of this assault.
61In November 2010, the wife consulted with a lawyer to try and seek child support from the husband in the court system. She was advised that since there was no child support order in place, there was no way for the FRO to enforce the child support the husband had agreed to pay. Before the wife could bring a motion for child support, she needed to know the husband’s address in Bangladesh and find out what his income was.
62The wife reached out to one of the husband’s cousins in Bangladesh who gave her the address for the husband and advised the wife that the husband earned an income that was equivalent to $34,000 CAD a year.
63By way of brief background, early in the parties’ marriage, in 2001, the husband established a company in Bangladesh and rented office space there, even though the parties lived in Canada. The company name was Bigmastech Communications Ltd. (“Bigmastech”). The Bigmastech website describes the company’s business as having begun in the leather trading business sector in 2001, and by 2003, it began to trade various products, including exporting plastic bags. During the marriage, between 2003 and 2006, the husband travelled frequently to Bangladesh for business and often stayed there for 3 to 4 months at a time. At some point, Bigmastech became involved in outsourcing Information Technology (“IT”) services to international companies.
64In April 2011, the wife searched the husband’s company, Bigmastech online and learned that it was now providing IT services. The website explained that the husband was working with many international clients as a freelance contractor providing IT services.
65On April 7, 2011, the wife brought a motion seeking child support in this court. The husband did not participate in this proceeding. At an uncontested trial, Boswell, J. made a final order for the husband to pay child support, based on an income of $34,000 a year, which was the best evidence the wife had at the time from the husband’s cousin. The child support payments were to commence September 1, 2011.
66On October 15, 2011, the wife registered the order with the FRO.
67Based on the above, the delay between the date of the parties’ divorce in 2008, and the Boswell order (April 7, 2011), arose because the wife did not appreciate that the terms of the parties’ child support agreement needed to form part of the divorce judgment in order to enforce the order. As soon as she learned that, the wife took immediate steps to commence an application to seek child support. The husband was duly served and did not participate. The child support order was made against him, and the FRO began to enforce its terms. As set out in D.B.S., the difference between a reasonable and unreasonable delay often is determined by the conduct of the payor parent. A payor parent who informs the recipient parent of income increases in a timely manner, and who does not pressure or intimidate him/her, will have gone a long way towards ensuring that any subsequent delay is characterized as unreasonable: at para. 102. In this case, the payor parent refused to give the recipient any income information or contact information For that matter, the wife did not simply accept the husband’s threats when she sought support. Instead, she actively pursued a child support claim. I find that the wife did not engage in any unreasonable delay in obtaining a child support order against the husband, and that by April 7, 2011, she commenced the claim seeking child support.
(b) The Second D.B.S. Factor: The Conduct of the Husband, the payor parent
68This factor approaches the same concerns as the first factor but from the opposite perspective. Just as the payor parent’s interest in certainty is most compelling where the recipient parent delayed unreasonably in seeking an award, the payor parent’s interest in certainty is least compelling where she/he engaged in blameworthy conduct. Put differently, this factor combined with the last establish that each parent’s behaviour should be considered in determining the appropriate balance between certainty and flexibility in a given case: D.B.S, at para. 105.
69As stated by Bastarache, J. in D.B.S., at para. 106:
Courts should not hesitate to take into account a payor parent’s blameworthy conduct in considering the propriety of a retroactive award. Further, I believe courts should take an expansive view of what constitutes blameworthy conduct in this context. I would characterize as blameworthy conduct anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support. A similar approach was taken by the Ontario Court of Appeal in Horner v. Horner (2004), 2004 34381 (ON CA), 72 O.R. (3d) 561, at para. 85, where children’s broad “interests” — rather than their “right to an appropriate amount of support” — were said to require precedence; however, I have used the latter wording to keep the focus specifically on parents’ support obligations. Thus, a payor parent cannot hide his/her income increases from the recipient parent in the hopes of avoiding larger child support payments: see Hess v. Hess (1994), 1994 7378 (ON SC), 2 R.F.L. (4th) 22 (Ont. Ct. (Gen. Div.)); Whitton v. Shippelt (2001), 293 A.R. 317, 2001 ABCA 307; S. (L.). A payor parent cannot intimidate a recipient parent in order to dissuade him/her from bringing an application for child support: see Dahl v. Dahl (1995), 1995 ABCA 425, 178 A.R. 119 (C.A.). And a payor parent cannot mislead a recipient parent into believing that his/her child support obligations are being met when (s)he knows that they are not. [Emphasis added.]
70No level of blameworthy behaviour by payor parents should be encouraged. Even where a payor parent does nothing active to avoid his/her obligations, he/she might still be acting in a blameworthy manner if he/she consciously chooses to ignore them. Put simply, a payor parent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from such conduct: D.B.S., at para. 107,
71As stated at para. 31] of Michel:
When a payor parent fails to pay the appropriate amount of child support, the recipient parent is left to shoulder the burden. If the recipient parent does not have the means to provide their child reasonable support, the child suffers. Both the recipient parent and the child may experience hardship because of a payor parent’s neglect. Seen in this light, it bears repeating that retroactive child support is not exceptional relief (D.B.S., at para.5): there is nothing exceptional about judicial relief from the miserable consequences that can flow from payor parents’ indifference to their child support obligations…Just as an order of child support is intended to provide children with the same standard of living they enjoyed when their parents were together (D.B.S., at para. 38), an order of retroactive child support provides an (albeit imperfect) remedy where that does not occur.
72In Colucci, Martin J, confirmed that financial disclosure by a payor is central to the child support regime and affirmed what the Court found in Michel, namely that “[p]ayor parents are ‘subject to a duty of full and honest disclosure’ (para. 33). Where the payor fails to comply with this duty and leaves the recipient unaware of increases in income, a retroactive award ‘will commonly be appropriate’ because non-disclosure eliminates any need to protect [the payor’s] interest in the certainty of his [or her] child support obligations”: at para. 42.
73Further, in Colucci, the court confirmed, at paras. 49-50, that:
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 this 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.
This is why frank disclosure of income information by the payors lies at the foundation of the child support regime.
74The wife argues that the husband has engaged in blameworthy conduct making it impossible for her to pursue her child support claims, in that she could not locate him when he moved to Bangladesh, and he took extraordinary measures to hide his income by conducting business online under multiple false identities. She has been trying, unsuccessfully, since 2008 to pursue child support from the husband. She was put to the expense of retaining a private investigator to find out whatever details possible about the husband. As a result, she seeks retroactive child support to the date of the parties’ divorce, in 2008.
75In this case, the husband was well aware that the wife was seeking child support and that he was not complying with his initial agreement to pay her $114 a month, and the final Boswell order to pay child support in the sum of $316 a month. When the wife tried to reach him in Bangladesh, the husband refused to give her his contact information or his income information. He went further and threatened the wife when she asked him to assist her financially in raising their child.
76Between 2011 and 2013, after the Boswell order was made, the husband’s career in Bangladesh appeared to be taking off. Attached to the wife’s affidavit are Exhibits that attach videos and articles from various interviews the husband gave promoting his IT services, his company and his skill set. In particular, the husband describes in many interviews that he had obtained a job offer from Google as Senior Systems Engineer but he gave up this opportunity to work in Bangladesh. A summary of the various interviews given by the husband, and articles written about the husband, include the following:
a. In February 2012, the husband won an award for his freelance work providing IT support, as reported in the Daily Star, a newspaper in Bangladesh;
b. In May 2012, the husband was invited to speak as a guest on a talk show on ATN News, a news channel in Bangladesh, which interview the husband posted on his YouTube channel.
c. In June 2012, the husband was invited to speak as a guest on a talk show on Ekushey TV, or ETV, a television channel in Bangladesh, which interview the husband then posted on his YouTube channel.
d. In January 2013, the husband was interviewed for a newspaper called Prothom Alo, which published an article on January 8, 2013 in Bengali. The article was entitled “Sayeed, the best in outsourcing”. In this article, the husband discussed completing his studies in Canada and working as a freelance contractor providing IT support through a website called oDdesk since 2010. The husband also mentioned his company, Bigmastech, which he began in Bangladesh and for which he used to work remotely from Canada. He also mentions that he was hired to be a Senior Systems Engineer for Google but wanted to work in Bangladesh instead.
e. In May 2013, the husband attended another talk show on ETV to discuss his freelancing work, a copy of which interview he posted on his YouTube channel.
f. In September 2013, the husband interviewed for another online article called Freelancestory.com. The article was published on September 1, 2013, in which he states he has been working as a freelance contractor since 2010 through oDesk. He also confirms that he was offered a job at Google as a Senior Systems Engineer, but he turned down the offer to live in Bangladesh.
77During this entire time period when the husband’s career appears to have been thriving, he did not pay any child support to the wife.
78In 2013, the husband received a statement of arrears from the FRO which outlined that child support arrears had accumulated to $4,192 arising from the Boswell order. On October 25, 2013, the husband’s Canadian driver’s licence was suspended for non-payment of child support.
79The wife was in contact with the FRO in 2012 and 2013 and deposes that she was told by the FRO that they have no jurisdiction to enforce the Boswell order in Bangladesh.
80In February 2015, the wife was contacted by Nazia, who advised the wife that she and the husband were married in Bangladesh on December 1, 2010. They separated in January 2013. They have a daughter named Fedora. Nazia advised the wife that the husband had assaulted her, he was arrested in November 2014 and incarcerated for three months as a result. A copy of Nazia’s statement to the police was attached to the wife’s affidavit as an Exhibit.
81In February 2015, the wife was told by a cousin that the husband had returned to Canada. For the first time in years, the husband called the wife and aggressively demanded that she withdraw her FRO case. The wife contacted the police and filed a report as a result of the husband’s threats toward her.
82In March 2015, the wife contacted the FRO and advised them that the husband had returned to Canada. The wife was able to obtain an address for the husband and provided it to the FRO. However, by the time the FRO attempted to reach the husband at the address given to them by the wife, the husband had left Canada to go to Vietnam.
83The wife did not hear from the husband between April 2015 and February 2019. She did not receive any child support payments from the husband.
84On February 13, 2019, the husband appeared on another television interview with a woman, Michelle, his current wife. The show was aired for Valentine’s Day and celebrated interracial couples.
85On February 23, 2019, the wife was contacted by the husband’s ex-girlfriend Jennifer on Facebook. Jennifer told the wife that she and the husband had been in a relationship between 2015 and April 2018. She lives in Vietnam and had met the husband online. During their three-year relationship, Jennifer and the husband were in a long-distance relationship; he travelled to Vietnam to be with her and she travelled to Bangladesh to be with him. She became pregnant with the husband’s child and the husband refused to acknowledge her daughter as his child. Jennifer advised the wife that the husband proceeded to threaten her when she asked for some financial support.
86On March 14, 2019, the wife was advised by a friend that the husband had returned to Canada. As a result, the wife contacted the FRO and was told to obtain an address immediately so the FRO could bring an urgent motion. The motion was heard within 3 days and an Order was obtained to allow the FRO to start the Default Hearing process.
87On March 25, 2019, the FRO advised the wife that the Default Hearing date had been set for May 21, 2019.
88The FRO mailed the wife a copy of the Statement of Arrears as of April 1, 2019, which indicated that child support arrears had accumulated to $29,914.87 under the Boswell order. The FRO served the husband with the Notice for Default Hearing.
89The wife then contacted the ex-girlfriends and wives of the husband who had reached out to her, to try and obtain information about his income and earnings.
90Nazia advised the wife that in 2011 or 2012, the husband had turned down a job offer from Google because he wanted to live in Bangladesh. Nazia also advised the wife that the husband refused to support their daughter, Fedora, until she started an application in the court in Bangladesh and an order was made requiring the husband to pay child support in the sum of $16,000 CAD. Nazia told the wife that the husband had been put in jail and when he was released in January 2015, he paid the entire amount of $16,000 in child support.
91In May 2019, the wife noticed that the husband made a child support payment to the FRO in the sum of $316, which was the first time since 2008 that the husband made a child support payment. She realized he did so because of the Default Hearing process.
92On May 21, 2019, the husband attended the Default Hearing Court and a temporary order was issued requiring the husband to pay the wife $816 a month on June 1, 2019, failing which he would be jailed for 7 days. A second hearing date was scheduled for July 30, 2019.
93On July 30, 2019, the husband attended the hearing and asked that it be adjourned to October 22, 2019.
94On August 2, 2019, the wife wrote to the husband asking him for full disclosure of his income since 2012. He did not respond to her.
95On October 22, 2019, the husband attended the FRO Default Hearing, which was adjourned to February 4, 2020.
96On December 3, 2019, the wife was served with the husband’s Motion to Change which included a sworn financial statement from the husband. This was the first disclosure made by the husband since the parties separated in 2006. The husband’s sworn financial statement indicated that his 2019 income was $102,000 a year.
97On March 18, 2019, the wife found the husband’s LinkedIn profile. She also found a copy of the husband’s resume on Facebook, along with his personal online blog. In his personal blog, the husband again mentions that he was offered a job as a Senior Systems Engineer at Google which he did not accept so he could live in Bangladesh.
98On May 5, 2019, before attending the first Default Hearing, the husband posted on Facebook that he had just purchased a BMW, which he dedicated to his “multiple jealous haters”. He listed the BMW on his sworn financial statement as an asset worth $10,000.
99The husband bought a condominium in Dhaka, Bangladesh at a cost equivalent to $167,290.64 in CAD in or around 2014. The husband’s sworn financial statement in 2019 does not list the condominium in Dhaka, nor does it list his company, Bigmastech. Rather, the husband’s sworn financial statement refers to his income as a freelance contractor working through o’Desk or Upword freelancing jobsites.
100The wife deposes that between May 2019 and April 2021, the husband paid off the outstanding child support arrears in the sum of $32,137.79, being the outstanding child support, which had accumulated between August 2011 and April 2021, as per the Boswell order.
101Based on all of the above, I find that the husband’s conduct was blameworthy. The husband was clearly aware that the wife needed child support to assist her in raising their son in Canada. When the parties spoke on the phone and the husband was in Bangladesh in 2010, the husband threatened the wife. The wife was left with no alternative but to start a court case. The husband made no attempt to comply with the Boswell order. It was not until the FRO enforced the order, suspended his driver’s licence, and when the husband could not renew his Canadian passport, that the husband decided he needed to address his child support obligation. Even then, his income disclosure was just over $100,000 a year, when he had failed to comply with the Boswell order which required him to pay child support on an annual income of $34,000. I find that the husband knowingly avoided his child support obligation during a time when his business appeared to be thriving.
102In April 2021, the husband again moved back to Bangladesh. The wife does not know his whereabouts. She has emailed the husband’s prior counsel several times requesting the husband’s income information and his contact information. She never received a response. The FRO remains unable to contact the husband. The husband has not paid any child support pursuant to the Nakonechny order and is in arrears of same.
(c) The Third D.B.S. Factor: Past and Present Circumstances of the Child
103As set out in para. 110 of D.B.S., “[a] retroactive award is a poor substitute for an obligation that was unfulfilled at an earlier time. Parents must endeavour to ensure that their children receive the support they deserve when they need it most. But because this will not always be the case with a retroactive award, courts should consider the present circumstances of the child — as well as the past circumstances of the child — in deciding whether such an award is justified.”
104In 2010, the parties’ son was diagnosed with Attention Deficit Disorder. He required a psycho-educational assessment; ongoing treatment from a therapist; group therapy; and tutoring for school. The wife struggled to be able to pay for the extra support he needed with his school work and his social-emotional development. In 2020, the child needed orthodontic treatment and eyeglasses, the cost of which was not fully covered by insurance. The wife struggled to make ends meet; to pay for the son’s orthodontia; and to pay for the son’s psycho-educational assessment.
105The wife raised the child without any financial assistance from the husband. As a single mother, she was not able to afford to enrol the child in extracurricular activities and he suffered as a result. By way of an example, the wife testified that the child wanted to play ice hockey but she was unable to afford this extra-curricular activity for him. The husband did not take any steps to have a relationship with the child.
106The wife has given evidence that the child suffered during the years that the husband did not pay her child support. Nonetheless, the child has started post-secondary studies in 2021. His present circumstances would be greatly improved if retroactive child support were ordered. I find that this is clearly a situation where the child underwent hardship in the past and may be compensated for his unfortunate circumstances through a retroactive child support award.
(d) The Fourth D.B.S. Factor: Hardship that may result by the Granting of a Retroactive Award
107As set out in D.B.S., a broad consideration of hardship is appropriate in determining whether a retroactive child support award is justified. The reasons why retroactive awards could lead to hardship, in circumstances where a prospective award would not, arises because the calculation of retroactive awards is not intrinsically linked to what the payor parent can currently afford. In this manner, courts should attempt to craft a retroactive award in a way that minimizes hardship. Statutory regimes allow judges the option of ordering the retroactive award as a lump sum, a series of periodic payments, or a combination of the two: CSG, at s.11. While hardship for the payor parent is much less of a concern where it is the product of his/her own blameworthy conduct, it remains a strong one where this is not the case.
108As outlined above, the husband has engaged in blameworthy conduct. Even in the context of this Uncontested Trial, when given a further opportunity on January 25, 2022, to participate in these proceedings, the husband did not do so.
109The court does not have information about the hardship the husband would occasion if a retroactive award was made. During the January 25, 2022 virtual attendance, the husband advised the court that he was in Bangladesh on the advice of his doctor for mental health reasons. His counsel, Mr. Karim, advised the court during oral submissions, with no material filed on his client’s behalf, that the husband’s mental health difficulties arose because of the uncertainty of his life in Canada. Having said that, when asked by the court as to what treatment the husband was receiving for his mental health difficulties, the husband advised that he is not in treatment; he was not taking medication; and he was trying to get help from a doctor in India, remotely. Based on this information, I gave the husband three and a half months to file material, attend questioning, attend a TMC and be ready for the May 16, 2022 trial. He did not file the Form 23C; he did not attend the scheduled Questioning; and the wife has been put to incredible expense just to advance both her retroactive and prospective child support claim.
110I find that any hardship the husband may face as a result of a retroactive child support award is outweighed by the fact that he has been given multiple opportunities to participate in this proceeding and advise the court of the details of such hardship and he has chosen not to do so.
Issue Two: Should income be imputed to the husband for the time periods: (a) August 1, 2008 to and including December 31, 2012; (b) January 1, 2012 to and including December 31, 2020; and (c) January 1, 2021 to the present, and ongoing?
111The wife is not seeking to impute the husband with income for the period August 1, 2008 to and including December 31, 2010. Rather, she seeks an order requiring the husband to comply with the parties’ verbal agreement, namely that he pay her child support in the sum of $114 a month.
112For the period January 1, 2011 to and including December 31, 2011, the wife seeks that the husband be imputed with the income as per the Boswell order of $34,000, requiring him to pay her child support of $316 a month.
113For the period January 1, 2012 to and including December 31, 2020, the wife seeks an order imputing the husband with an annual income of $175,143, which is the salary she submits the husband could have earned if he had accepted the Senior Systems Engineer position at Google in the U.S., which he was offered in 2012 but did not accept.
114For the period January 1, 2021 to the current date and ongoing, the wife seeks an order imputing the husband with an annual income of $90,500, as imputed to him by the Nakonechny order., dated February 26, 2021, effective January 1, 2021.
115Section 19(1) of the CSG sets out that the court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include: (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; or (f) the spouse has failed to provide income information when under a legal obligation to do so.
116In the case at bar, the wife argues that the husband was offered a position at Google in the U.S. where he could be earning $175,143 a year. The husband decided not to take this position and, therefore, income ought to be imputed to him because he is intentionally under-employed. Further, income ought to be imputed to the husband because he has failed to provide income information to the wife and the court when he is under a legal obligation to do so.
117In Drygala v. Pauli, 2002 41868 (ON CA), 2002, 61 O.R. (3d) 711 (C.A.). it was held that in order to find intentional under-employment and impute income to a parent, there is no need to find a specific intent to evade child support obligations: at paras. 24-37. Further, in order for parents to meet the legal obligation to support their children, they must earn what they are capable of earning.
118The reasons for under-employment are irrelevant. If a parent is earning less than she or he could be, he or she is intentionally under-employed. The wife argues that from the time the husband was offered a position at Google and declined the offer, he chose to earn less than the $175,143 a year, which is the average Google salary for Senior Systems Engineers and was, therefore, intentionally under-employed.
119I am persuaded on the record before me that the husband was offered a Senior Systems Engineer position at Google in the United States in 2012, and he declined to take the position. On that basis, I am prepared to impute an income to the husband based on what he could have earned had he taken the job at Google given that he was under-employed, pursuant to s.19(1)(f).
120The issue I now have to determine is what salary to impute to the husband on account of him having turned down this job. There is no evidence before the court of what specific salary the husband was offered by Google. As support for the income figure with which the wife asks the court to impute on the husband, she attaches a printout of the base salary a Senior Systems Engineer would earn at Google which she obtained from the Paysa website. Paysa is a website that enables employees to understand market salaries. I am unable, however, to verify whether the information produced on the Paysa website for the average salary for a Senior Systems Engineer is, in fact, the salary the husband was offered by Google in 2012. Further, there is nothing in the Exhibit that specifies whether the average salary of $175,143 is what someone would earn in Canada or in the United States.
121Other salary websites, such as Glassdoor, for example, show that a Senior Systems Engineer at Google would earn $119,832 in the United States currently; Talent.com shows that a Senior Systems Engineer in the U.S. would earn $125,000 but that such salaries could be as high as $165,000 in other regions; and Paysacle.com shows that a Senior Systems Engineer at Google would earn an average salary of $157,654 USD. However, none of these websites or salaries were in the evidence before me.
122Further, even if I were to accept that the salary information on the Paysa website was accurate for a Senior Systems Engineer position at Google, that information is what someone in that position would earn at Google in 2022, and not a decade earlier, 2012, when the husband was, in fact, offered the position. The National Average Wage Index (“NAWI”) is a measure of U.S. wage trends that are calculated annually by the Social Security Administration . In essence, the NAWI tracks wage growth among workers in the United States as a measure of inflation. If I apply those rates of inflation backwards to the average salary published by Paysa for a Senior Systems Engineer of $175,000 in 2022, it would be equivalent to a salary of $133,030 in 2012. Again, even if I were inclined to accept that the information on the Paysa website were accurate, an exchange rate from US dollars to Canadian dollars would need to be applied annually to truly determine what the husband could have earned in Canadian dollars for child support purposes.
123The wife is seeking retroactive child support from the husband in the sum of $179,554.24, calculated, for the period August 1, 2008 to May 1, 2022, calculated as follows:
a. For 5 months in 2008, from August 1, 2008 to and including December 1, 2008, the husband owes child support in the sum of $570 ($114 a month x 5 months), based on the verbal agreement of the parties;
b. For 12 months in 2009, from January 1, 2009 to and including December 1, 2009, the husband owes child support in the sum of $1,368 ($114 a month x 12 months), based on the verbal agreement of the parties;
c. For 12 months in 2010, from January 1, 2010 to and including December 1, 2010, the husband owes child support in the sum of $1,368 ($114 a month x 12 months), based on the verbal agreement of the parties;
d. For 8 months in 2011, from January 1, 2011 to and including August 1, 2011, he owes child support in the sum of $912 ($114 a month x 8 months), based on the verbal agreement of the parties;
e. For 4 months in 2011, from September 1, 2011 to and including December 1, 2011, he owes child support in the sum of $1,264 (being $316 a month (Boswell order x 4 months), based on the husband’s income of $34,000 a year;
f. For 12 months in 2012, from January 1, 2012 to and including December 1, 2012, he owes child support in the sum of $17,760.36, being $1,480.03 a month, based on an imputed income for the husband of $175,143 a year (the income he could have been earning at Google);
g. For 12 months in 2013, from January 1, 2013 to and including December 1, 2013, he owes child support in the sum of $17,760.36, being $1,480.03 a month, based on an imputed income for the husband of $175,143 a year (the income he could have been earning at Google);
h. For 12 months in 2014, from January 1, 2014 to and including December 1, 2014, he owes child support in the sum of $17,760.36, being $1,480.03 a month, based on an imputed income for the husband of $175,143 a year (the income he could have been earning at Google);
i. For 12 months in 2015, from January 1, 2015 to and including December 1, 2015, he owes child support in the sum of $17,760.36, being $1,480.03 a month, based on an imputed income for the husband of $175,143 a year (the income he could have been earning at Google);
j. For 12 months in 2016, from January 1, 2016 to and including December 1, 2016, he owes child support in the sum of $17,760.36, being $1,480.03 a month, based on an imputed income for the husband of $175,143 a year (the income he could have been earning at Google);
k. For 12 months in 2017, from January 1, 2017 to and including December 1, 2017, he owes child support in the sum of $17,760.36, being $1,480.03 a month, based on an imputed income for the husband of $175,143 a year (the income he could have been earning at Google);
l. For 12 months in 2018, from January 1, 2018 to and including December 1, 2018, he owes child support in the sum of $17,760.36, being $1,480.03 a month, based on an imputed income for the husband of $175,143 a year (the income he could have been earning at Google);
m. For 12 months in 2019, from January 1, 2019 to and including December 1, 2019, he owes child support in the sum of $17,760.36, being $1,480.03 a month, based on an imputed income for the husband of $175,143 a year (the income he could have been earning at Google);
n. For 12 months in 2020, from January 1, 2020 to and including December 1, 2020, he owes child support in the sum of $17,760.36, being $1,480.03 a month, based on an imputed income for the husband of $175,143 a year (the income he could have been earning at Google);
o. For 12 months in 2021, from January 1, 2021 to and including December 1, 2021, he owes child support in the sum of $10,044, being $837 a month, based on an imputed income for the husband of $90,500 a year (the income imputed to him as per the Nakonechny order, dated February 26, 2021, effective January 1, 2021);
p. For 5 months in 2022, from January 1, 2022 to and including May 1, 2022, he owes child support in the sum of $4,185, being $837 a month, based on an imputed income for the husband of $90,500 a year (the income imputed to him as per the Nakonechny order, dated February 26, 2021, effective January 1, 2021).
124Based on what the husband could have earned at Google, which the wife states is $175,143 a year, she seeks an order that he be imputed with that annual income for the period 2012 to December 31, 2021 since the Nakonechny order, dated February 26, 2021, became effective as at January 1, 2021, using an income of $90,500 a year for the husband.
125Given all of the uncertainties in the evidence on the record as to what the husband could have earned if he had accepted the position at Google, I am not prepared to impute the husband with an income of $175,143 CDN a year for the years 2012 to and including 2020, as sought by the wife. I am simply not persuaded by the evidence on the record that the husband was offered this salary by Google in 2012. I do, however, accept that the husband was offered a position at Google as a Senior Systems Engineer and that he declined the job. I have to consider that the information put forward by the wife as to the average salary of a Senior Systems Engineer at Google is for 2022 and not 2012. I also have to account for the fact that inflation needs to be considered given that the husband was offered a position at Google ten years ago. In all of the circumstances, I find that the husband was under-employed and pursuant to s.19(1) of the CSG, I impute an income of $125,000 a year to the husband for the years 2012 to and 2020.
Quantification of the Retroactive Child Support Based on the Imputed Income
126Using the agreed upon monthly child support for the period August 1, 2008 to December 31, 2011 of $114 a month; an imputed income for the husband of $125,000 a year for the nine-year period of January 1, 2012 to December 31, 2020; an imputed income for the husband of $90,500 for the period January 1, 2021 onward (as per the Nakonechny order); and after giving the husband credit for the child support he did pay, I find that the husband owes the wife the sum of $106,619.21 retroactive monthly child support for the period August 1, 2008 to May 31, 2022, calculated as follows:
| Year | Annual Income for the Husband | Child Support | Arrears |
|---|---|---|---|
| 2008 Aug. 1/08 to Dec. 31/08 |
$114 x 5 mo. | $570 | |
| 2009 Jan. 1/09 to Dec. 31/09 |
$114 x 12 mo. | $1,368 | |
| 2010 Jan. 1/10 to Dec./10 |
$114 x 12 mo. | $1,368 | |
| 2011 Jan. 1/11 – Aug. 1/11 Sept. 1/11 – Dec. 31/11 |
$34,000 | $114 x 8 mo. = $912 $316 x 4 mo. = $1,264 |
$2,176 |
| 2012 Jan. 1/12 to Nov. 30/12 Dec/12 |
$125,000 | $1,076 x 12 mo. (based on 2011 Table) $1,107 x 1 mo. (2017 Table came into effect on Nov. 22/17) |
$12,943 |
| 2013 Jan. 1/13 to Dec. 31/13 |
$125,000 | $1,107 x 12 mo. | $13,284 |
| 2014 Jan. 1/14 – Dec. 31/14 |
$125,000 | $1,107 x 12 mo. | $13,284 |
| 2015 Jan. 1/15 – Dec. 31/14 |
$125,000 | $1,107 x 12 mo. | $13,284 |
| 2016 Jan. 1/16 – Dec. 31/16 |
$125,000 | $1,107 x 12 mo. | $13,284 |
| 2017 Jan 1/17 – Dec. 31/17 |
$125,000 | $1,107 x 12 mo. | $13,284 |
| 2018 Jan. 1/18 – Dec. 31/18 |
$125,000 | $1,107 x 12 mo. | $13,284 |
| 2019 Jan. 1/19 – Dec. 31/19 |
$125,000 | $1,107 x 12 mo. | $13,284 |
| 2020 Jan. 1/20-Dec.31/20 |
$125,000 | $1,107 x 12 mo. | $13,284 |
| 2021 Jan. 1/21 – Dec. 31/21 |
$90,500 | $827 x 12 mo. | $9,924 |
| 2022 Jan. 1/22 – May 31, 2022 |
$90,500 | $827 x 5 mo. | $4,135 |
| Total Monthly Arrears | $138,756 | ||
| Credit for what the husband did pay in terms of child support | ($32,136.79) | ||
| Adjusted child support arrears | $106,619.21 |
Issue Three: Does the husband owe the wife retroactive s.7 expenses for the child for the period April 1, 2008 to the present date and, if so, in what amount?
127The D.B.S. principles apply to claims for retroactive claims for contributions to s.7 expenses, or retroactive increases in such contributions: see A.E. v. A.E., 2021 ONSC 8189, at para. 200.
128In terms of s.7 expenses, the wife seeks a retroactive payment from the husband for his proportionate share of the child’s s.7 expenses from 2010 to 2022, calculated as follows:
a. The wife was unable to obtain any receipts for s.7 expenses she incurred on behalf of the child in 2008 or 2009;
b. For 2010, the wife incurred a total of $4,450.56 in s.7 expenses, being $2,050.56 for music lessons and $2,400 for tutoring. In that year, her income was $41,000. The best evidence the wife has as to the husband’s income in 2010 was that he earned an annual income of $34,000, making his proportionate responsibility 43.5%, or $1,935.99;
c. For 2011, the wife incurred a total of $4,417.08 in s.7 expenses, being $607.08 for music lessons; $2,400 for tutoring; and $1,410 for swimming lessons. In that year, her income was $45,000. The best evidence the wife has as to the husband’s income in 2011 was that he earned an annual income of $34,000, making his proportionate responsibility 43%, or $1,899.34;
d. For 2012, the wife incurred a total of $2,400 in s.7 expenses, being $2,400 for tutoring. In that year, her income was $38,000. The wife asks the court to impute the husband with an annual income of $175,143 which is what she claims he could have earned had he accepted the Google job offer, making his proportionate responsibility 83%, or $1,968;
e. For 2013, the wife incurred a total of $2,400 in s.7 expenses, being $2,400 for tutoring. In that year, her income was $40,000. The wife asks the court to impute the husband with an annual income of $175,143 which is what she claims he could have earned had he accepted the Google job offer, making his proportionate responsibility 81%, or $1,944;
f. For 2014, the wife incurred a total of $2,400 in s.7 expenses, being $2,400 for tutoring. In that year, her income was $40,000. The wife asks the court to impute the husband with an annual income of $175,143 which is what she claims he could have earned had he accepted the Google job offer, making his proportionate responsibility 81%, or $1,944;
g. For 2015, the wife incurred a total of $2,603 in s.7 expenses, being $2,400 for tutoring and $203 for basketball camp. In that year, her income was $43,000. The wife asks the court to impute the husband with an annual income of $175,143 which is what she claims he could have earned had he accepted the Google job offer, making his proportionate responsibility 80%, or $2,082.40;
h. For 2016, the wife incurred a total of $2,400 in s.7 expenses, being $2,400 for tutoring. In that year, her income was $45,000. The wife asks the court to impute the husband with an annual income of $175,143 which is what she claims he could have earned had he accepted the Google job offer, making his proportionate responsibility 79.5%, or $1,908;
i. For 2017, the wife incurred a total of $4,359 in s.7 expenses, being $2,400 for tutoring; $1,700 in dental expenses; and $259 for uninsured eyeglasses. In that year, her income was $48,703. The wife asks the court to impute the husband with an annual income of $175,143 which is what she claims he could have earned had he accepted the Google job offer, making his proportionate responsibility 78%, or $2,630.16;
j. For 2018, the wife incurred a total of $2,927.75 in s.7 expenses, being $2,400 for tutoring; $186.50 for dental expenses; and $341.25 for martial arts lessons. In that year, her income was $56,731. The wife asks the court to impute the husband with an annual income of $175,143 which is what she claims he could have earned had he accepted the Google job offer, making his proportionate responsibility 75%, or $2,195.81;
k. For 2019, the wife incurred a total of $4,771.26 in s.7 expenses, being $63.90 for dental expenses; $368.94 for the uninsured portion of eye care/contact lenses; $590 for group therapy at Behaviour Matters; $678 for Shooting Academy lessons; $255 for Scouts Canada; $1,941.34 for martial arts lessons; $64.08 for skating lessons; and $810 for driving lessons. In that year, her income was $60,000. The wife asks the court to impute the husband with an annual income of $175,143 which is what she claims he could have earned had he accepted the Google job offer, making his proportionate responsibility 74%, or $3,530.68;
l. For 2020, the wife incurred a total of $5,910.32 in s.7 expenses, being $836.20 for Second City programs; $2,309.26 for orthodontic treatment/braces; $548.20 for the insurance portion of eyeglasses; $239.66 for the uninsured portion of contact lenses; $250 for Scouts Canada; and $1,727 for martial arts lessons. In that year, her income was $62,000. The wife asks the court to impute the husband with an annual income of $175,143 which is what she claims he could have earned had he accepted the Google job offer, making his proportionate responsibility 74%, or $4,373.63;
m. For 2021, the wife incurred a total of $4,107.90 in s.7 expenses, being $1,802 for orthodontia treatment/braces; $820.20 for martial arts lessons; $299.45 for Second City; $480 for the uninsured portion of counselling; and $706.25 for driving lessons for the G. In that year, her income was $63,000. The court imputed the husband with an income in this year of $90,500, making his proportionate responsibility 58%, or $2,3782.58;
n. For 2022, the wife incurred a total of $12,108.63 in s.7 expenses, being $1,312.32 for marital arts lessons; $260 for the uninsured portion of counselling; $10,158.70 for the neuro assessment from Advanced Cognitive Enhancement Clinic; $279.96 for the uninsured portion of contact lenses; and $97.65 for High Five Certification with Markham Recreation. In that year, her income was $63,000. The court imputed the husband with an income of $90,500 in 2021, making his proportionate responsibility 58%, or $7,023.
129In light of my finding above that the husband ought to be imputed with an income of $125,000 a year for the nine-year period from January 1, 2012 to and including December 31, 2020, I find that the husband owes the wife retroactive s.7 expenses in the sum of $34,922.93, being his proportionate share of the child’s retroactive s.7 expenses, calculated as follows:
| Year | Section 7 expenses | Wife’s income | Husband’s Income | H’s proportionate share |
|---|---|---|---|---|
| 2010 | $4,450.56 | $41,000 | $34,000 | 45.3% $2,017.59 |
| 2011 | $4,417.08 | $45,000 | $34,000 | 43% $1,901.02 |
| 2012 | $2,400 | $38,000 | $125,000 | 76.6% $1,840.49 |
| 2013 | $2,400 | $40,000 | $125,000 | 75.7% $1,818.18 |
| 2014 | $2,400 | $40,000 | $125,000 | 75.5% $1,818.18 |
| 2015 | $2,603 | $43,000 | $125,000 | 74.4% $1,936.75 |
| 2016 | $2,400 | $45,000 | $125,000 | 73.5% $1,764.70 |
| 2017 | $4,359 | $48,703 | $125,000 | 71.9% $3,136.82 |
| 2018 | $2,927.75 | $56,731 | $125,000 | 68.7% $2,013.79 |
| 2019 | $4,771.26 | $60,000 | $125,000 | 67.5% $3,223.78 |
| 2020 | $5,910.32 | $62,000 | $125,000 | 66.8% $3,950.74 |
| 2021 | $4,107.90 | $63,000 | $90,500 | 58.9% $2421.92 |
| 2022 | $12,018.63 | $63,000 | $90,500 | 58.9% $7,078.97 |
| Total retroactive s.7 expenses | $34,922.93 |
Issue Four: What is the husband’s ongoing child support obligation, both table and s.7 expenses?
130The wife seeks an order that the husband continue to comply with the Nakonechny order and pay child support to her based on imputed annual income of $90,500, in the sum of $837 a month.
131In terms of s.7 expenses, the wife seeks an order that the husband pay her a lump sum of $50,422 to her for future s.7 expenses for their son, representing his proportionate share, being 58% of the cost of the child’s post-secondary tuition, rent, food and related university costs, for the period 2021 to and including 2025, when the son is expected to graduate. This proportionate share of 58% is based on the wife using an income figure of $90,500 a year for the husband and $63,000 for her.
132The wife submits that the annual tuition fee for the child at the Toronto Metropolitan University is $7,805 a year, or $31,220 for the four-year degree. Books and supplies amount to $2,500 a year, or $10,000 for the four-years. The cost of residence for the child at Pittman Hall for first year was $9,286.06 and the meal plan was $5,949. The wife has estimated that the cost of rent for the child for the last 3 years of his degree will be $27,867.18, which is reasonable in my view, as that amounts to about $775 a month for rent. The wife estimates that the child’s food and related costs for the last 3 years of his degree will be $17,877, which amounts to $496 a month expenses. Again, this is reasonable in my view. The wife used Ryerson websites (now Toronto Metropolitan University) to estimate the housing, food and educational costs for the child. The total cost for the child’s post-secondary educational expenses and related living costs as estimated by the wife are $86,964.18. She seeks an order that the husband pay his 58% proportionate share of these expenses, being $50,421.92, as a lump sum, given his history of non-compliance and non-payment of child support. I agree with the wife and so order.
133Th Nakonechny order remains in force and the husband is to comply with it by paying the wife child support in the sum of $837 a month, based on the imputed income of $90,500 a year.
Costs
134The wife seeks costs of the Uncontested Trial on a substantial indemnity basis in the sum of $15,072.58.
135She has submitted a Bill of Costs which covers the period of time from August 19, 2019 to May 16, 2022, which states that it totals 73.51 hours , however, the correct calculation of the hours is 87,85 hours in total, comprised of 1 hour of Audrey Shecter’s time and 14.85 hours of Ibtisam Jemal’s time, as lawyers from Beard Winter LLP, and 72 hours of the wife’s time as a self-represented litigant. This included 30.45 hours of general preparation of the motion to change material and correspondence; 5 hours to prepare for and attend the case conference; 7 hours to prepare for and attend the combined SC/TMC; 17 hours to prepare for and attend the motion to strike the husband’s pleadings and the Uncontested Trial; 5.5 hours to prepare for the Questioning; and 3.25 hours to prepare the bill of costs.
136The successful party in family law litigation has no automatic right to full recovery of their costs.3 However, the Family Law Rules, O. Reg. 114/99, do provide for an entitlement to full recovery of costs in specific circumstances, including bad faith.4
137I have reviewed the hourly rates of the lawyers involved in this matter and find the total of 15.85 hours spent by Audrey Shecter and Ibtisam Jemal to be reasonable. The wife, as a self-represented litigant, spent 72 hours of time which she ascribed an hourly rate of $120.
138The law on costs claimed by a self-represented litigant is set out in detail in Izyuk v. Bilousov, 2011 ONSC 7476. In it, Justice Pazaratz, at para. 47, followed Price J.’s decisions in Cindy Jahn-Cartwright v. John Cartwright, 2010 ONSC 2263, and Cassidy v. Cassidy, 2011 ONSC 791.
139In M.A.L. v. R.H.M., 2018 ONSC 2542, Justice Pazaratz reviewed some of the factors to be considered when assessing the quantum of costs relative to self-represented litigants. Commencing at para. 11, he stated:
11Most of the caselaw dealing with costs claims by self-represented litigants deals with the first of the three objectives set out in Serra.
a. Self-represented litigants may be awarded costs, and those costs may include an allowance for counsel fees. Fong v. Chan, 1999 2052 (ON CA), (1999) 46 O.R. (3d) 330 (C.A.); Jordan v Stewart, 2013 ONSC 5037 (SCJ).
b. However, self-represented litigants – whether legally trained – are not entitled to costs calculated on the same basis as those of a litigant who retains counsel. Pirani v Esmail, 2014 ONCA 279 (); Fong v. Chan, (supra); Reynolds v. Higuchi, 2014 ONSC 3375 (SCJ).
c. A self-represented litigant can be awarded costs for disbursements as well as the economic loss caused by having to prepare and appear to argue the case. Fong v. Chan (supra); G.B. v S.A., 2013 ONSC 2147 (Divisional Ct).
d. A self-represented litigant should not recover costs for the time and effort that any litigant would have to devote to the case.
e. Costs should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation and that, as a result, they incurred an opportunity cost by foregoing remunerative activity. Jordan v Stewart, (supra).
f. Lost wages as a result of time missed from work to prepare for or argue a case can be compensated by way of costs. G.B. v S.A., (supra). But this excludes routine awards on a per diem basis to litigants who would ordinarily be in attendance at court in any event. Warsh v Warsh, 2013 ONSC 1886 (SCJ).
g. Compensation for the loss of time devoted to preparing and presenting the case should be moderate or reasonable. Reynolds v. Higuchi, (supra).
h. Once a court determines that a “counsel fee” is appropriate for a self-represented litigant, one of the biggest challenges is quantifying both the number of hours to be compensated and the appropriate hourly rate. Courts have awarded anywhere between $20.00 and $200.00 per hour for self-represented litigants, depending on the demonstrated level of skill. Izyuk v Bilousov, 2011 ONSC 7476 (SCJ). $60 per hour appears to be a commonly used figure. Roach v. Lashley, 2018 ONSC 2086 (SCJ).
i. The Family Law Rules do not specifically address costs claims by self-represented litigants. But all of the Rule 18 and 24 costs provisions apply equally whether litigants are represented or not.
140I agree with the approach suggested by Justice Pazaratz as set out above.
141To set an appropriate and reasonable hourly rate to apply to the wife’s work preparing for and attending the Uncontested Trial, I considered the following:
a. The wife represented herself diligently, reasonably and appropriately during the May 16th, 2022 attendance. She was for the most part well-organized in a manner expected of lawyers.
b. Allowing for the fact that the Applicant is not a lawyer, her preparation for the Uncontested Trial, materials, and presentation was generally of a high calibre.
c. The wife should not recover costs for the time and effort that any litigant would have to devote to the case, such as the time spent at the Case Conference; the SC/TMC and the Uncontested Trial.
Reasonableness or Unreasonableness of Each Party’s Behaviour
1Rule 24(5)(a) of the Family Law Rules requires the court to consider the reasonableness of a party’s behaviour in relation to the issues from the time they arose. My findings on this issue are set out above. In short, I find that the husband’s refusal to comply with the court orders, even those which contain terms reached on consent, has been completely unreasonable in my view.
142Further, as described earlier, the husband’s refusal to comply with his disclosure obligations rises to the level of bad faith. I therefore find that the wife is entitled to recovery of her costs incurred in relation to this trial.
143Having considered all of the factors listed above, I find that an hourly rate of $125/hour for the wife’s work on the preparation for the motion and attendance is reasonable. I rely on numerous cases that sanction such an approach: see Anyumba v. Keby, 2018 ONCJ 865 ; Agmon v. James, 2018 ONCJ 240; Browne v. Cerasa, 2018 ONSC 2242; Izyuk; and Abela v. Gibbens, 2018 ONSC 2544.
Time and Effort Expended
144As noted above, if a self-represented litigant, in performing tasks normally performed by a lawyer, lost the opportunity to earn income elsewhere, this may be a relevant factor. In this case, the wife spent 72 hours of time preparing for and attending at court, which she would have had to do even if she had been represented at this Uncontested Trial. She does not specify whether she lost additional income in preparing for this motion.
145While I accept that the wife may very well have expended 72 hours preparing for and attending the case conference, the SC/TMC, the Uncontested Trial and the Questioning, in terms of an assessment of costs, the time spent by the wife is excessive. In my view, a reasonable measure of time for which the applicant ought to be able to seek reimbursement is 40 hours, for the purposes of this costs analysis.
146The wife seeks Disbursements of $344.65, all related to software and court reporting. These are reasonable in my view.
147Having regard to all the above noted factors and considerations, a just determination of the amount of costs the husband should pay to the wife, keeping in mind the principle of proportionality is that he should pay the wife the sum of $10,960, inclusive of HST, as costs of this Uncontested Trial applying a counsel rate to the wife of $125 an hour. These costs are payable forthwith.
148I order that this costs award be enforceable by the FRO as child support pursuant to s.1(1) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, and shall be enforceable as support through the FRO.
Order
149Order to go as follows:
a. Pursuant to ss. 15.1 and 15.2 of the Divorce Act, in satisfaction of the wife’s claims for retroactive child support and future s.7 expenses, subject to (b.) below, the husband shall pay the wife a total sum of $191,964.06, representing the following amounts:
i. Table Child support arrears, fixed in the sum of $106,619.21;
ii. Section 7 arrears, fixed in the sum of $34,922.93; and
iii. Lump sum payment for future s.7 expenses for the child, in the sum of $50,421.92.
b. The retroactive child support payment of $191.964.06 shall be paid at the monthly rate of $5,332.33 over a 36-month period, to commence on June 1, 2022 and on the first day of each following month, until June 30, 2025.
c. Pursuant to s. 15.1 of the Divorce Act, commencing June 1, 2022 and on the 1st day of each following month, the husband shall pay the wife ongoing child support in the sum of $837 a month, for R., based on an imputed annual income of $90,500 until R. is no longer a child of the marriage as defined in the Divorce Act, in accordance with the Nakonechny order dated February 26, 2021.
d. The husband shall pay the costs of this Uncontested Trial in the amount of $10,960 (inclusive of HST and disbursements), and the said costs shall be enforceable as spousal support by the Director, Family Responsibility Office (Ontario).
Kraft J.
Released: June 13, 2022
COURT FILE NO.: FS-19-00014134-0000
DATE: 20220613
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Peuly Rahman
Applicant
AND:
Sayeed Islam
Respondent
REASONS FOR DECISION
Kraft, J.
Released: June 13, 2022
Footnotes
- The wife states that the child is in a 4-year degree, which began in September 2021. Throughout her material she uses May 2024 as the end-date, but four years, is May 2025.
- In support of the relief sought on the Uncontested Trial, the wife filed a Form 23C: Affidavit for Uncontested Trial, sworn on January 8, 2020; A Supplmentary Form 23C affidavit for Uncontested Trial, sworn on January 2, 2022; an Affidavit, sworn on January 2, 2022; A Supplementary Form 23C, sworn on April 19, 2022; A Notice of Motion to strike the husband’s pleadings, dated May 2, 2022; A Draft order for Trial; a Schedule from the FRO; a Bill of Costs; and a Supplementary Affidavit, sworn on May 31, 2022.
- See Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519, at para. 13.
- See r. 24(18).