Court File and Parties

COURT FILE NO.: FS-21-00026484-0000

DATE: 20220819

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Mary Alison Brandt Applicant

– and –

Yassine Belguarni Respondent

COUNSEL:

Katherine MacDonald, for the Applicant

Self-represented

HEARD: In writing August 18, 2022

BEFORE: J. Steele J.

Reasons for Judgment

[1] This is an uncontested trial.

[2] The applicant, Mary Alison Brandt, seeks that the child of the marriage have her primary residence with the applicant, sole decision making, authority to apply for passport and other documents of the child without the respondent’s consent, dispensing with Mr. Belguarni’s consent for travel outside of Canada by the applicant with the child, imputation of income to the father and child support.

Background

[3] The parties were married on August 28, 2018 and separated on November 5, 2020. They have one child, H.B., born May 15, 2017.

[4] The parties have never lived together as a family. During their relationship, the respondent, Yassine Belguarni, has resided in either Qatar or Morocco.

[5] H.B. was born in Canada and has always resided solely with Ms. Brandt in Toronto.

[6] H.B. has seen Mr. Belguarni in person only on around four occasions in her life: a two week visit in Qatar in October 2017, a three week visit in Morocco in August 2018, a two week visit in Qatar and Sri Lanka in March 2019, and a one week trip to Qatar in September 2019. Otherwise, Mr. Belguarni has parenting time with H.B. by video call.

[7] Ms. Brandt was given leave to proceed to an uncontested trial by an order of Justice Kraft, made May 16, 2022.

Analysis

Decision Making/Parenting Time

[8] Under section 16.1(1) of the Divorce Act, the court may make an order providing for the exercise of parenting time or decision-making responsibility in respect of a child of the marriage on application by either or both spouses. The court may impose any terms, conditions and restrictions that it considers appropriate: section 16.1(5) of the Divorce Act.

[9] In making a parenting order, the court is required to consider only the best interests of the child: section 16, Divorce Act. The court must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being and is required to consider all factors related to the circumstances of the child, including those enumerated in section 16(3) of the Divorce Act.

[10] Ms. Brandt’s evidence is that since H.B.’s birth, Ms. Brandt has assumed sole responsibility for meeting the child’s physical and emotional needs. H.B. is a happy, healthy 5 year old, who is closely bonded to Ms. Brandt as her primary caregiver. Ms. Brandt states that the is willing and able to meet H.B.’s needs. Ms. Brandt is self-employed as an interior designer. She states that she earns a good income and is able to support H.B. and herself.

[11] H.B. attends the local public school, which is within walking distance of Ms. Brandt’s home. Ms. Brandt states that H.B. is doing well in school and has adapted to the kindergarten routines. Further, she has many friends in the neighbourhood with whom she plays. Ms. Brandt has also enrolled H.B. in many extracurricular activities, including ballet, gymnastics, French classes and skiing lessons.

[12] Ms. Brandt’s evidence is that she has been the one to make all the decisions for H.B., who is thriving in Ms. Brandt’s care. She states that she has regularly updated Mr. Belguarni about H.B.’s health and general well-being. However, Ms. Brandt has been the parent to make all the decisions for H.B.

[13] Ms. Brandt and Mr. Belguarni do not share the same culture or religious heritage. Mr. Belguarni is Moroccan and is Muslim. Ms. Brandt does not practice any religion. She states that Mr. Belguarni’s family are strict in their religious observance and in their traditional cultural views of the roles of men and women, which views are not shared by Ms. Brandt. Ms. Brandt’s evidence is that she believes that it is important for H.B. to be exposed to her cultural and religious heritage on both her maternal and paternal sides. Ms. Brandt states that she supports H.B. learning about Moroccan culture and about the Muslim faith from Mr. Belguarni.

[14] I agree that it is very important for H.B. to learn about her cultural and religious heritage. As stated in Mathew v. Barazmi, 2021 ONSC 7240, at para. 33: “The children share both parents’ roots and culture, and ought to have exposure and involvement in learning about their heritage from both parents.”

[15] Mr. Belguarni does not reside in Canada. Ms. Brandt and H.B. reside in Toronto. Ms. Brandt has been H.B.’s primary caregiver since birth and has made the decisions affecting her. Ms. Brandt regularly updates Mr. Belguarni regarding H.B.’s health and well-being. Ms. Brandt’s evidence is that it is in H.B.’s best interest to be able to make up her own mind when she is older about what religious practices she wants to incorporate into her own life. As noted above, she supports H.B. learning about the Moroccan culture and Muslim faith from Mr. Belguarni.

[16] There is evidence before the court of domestic violence between the parties. Ms. Brandt’s evidence is that when Mr. Belguarni was served with the court application he made various threats, including that he would take H.B. away from Ms. Brandt to “give her to another good family” and that “he did not want to hurt [Ms. Brandt] at first” because she is H.B.’s mother, but that he had been left with “no choice.” The parties do not communicate well. For example, Mr. Belguarni has refused to provide Ms. Brandt with his residential address.

[17] In the circumstances, I am satisfied that it is in H.B.’s best interest for her primary residence to be with Ms. Brandt and for Ms. Brandt to have sole decision-making authority.

[18] Ms. Brandt’s evidence is that she has always supported H.B.’s relationship with Mr. Belguarni. She states that Mr. Belguarni, who lives abroad, has had generous parenting time with H.B. by video call, generally several times a week. She states that she is agreeable to continuing to make H.B. available for parenting time with Mr. Belguarni on reasonable notice to Ms. Brandt at her discretion taking into account H.B.’s best interests and her wishes.

[19] Mr. Belguarni has never visited H.B. in Canada, as he has not been able to obtain a visitor visa to permit him to enter the country. Ms. Brandt states that she is concerned that if H.B. were to have parenting time with Mr. Belguarni in Morocco or Qatar, he might not return H.B. to her. Mr. Belguarni has threatened to start a court case against Ms. Brandt in Morocco. Qatar is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (the “Convention”). Although Morocco is a signatory to the Convention, Ms. Brandt states that it would be traumatizing for H.B. if Mr. Belguarni were to withhold her and if Ms. Brandt had to seek her return via a Hague Application. I agree that this would be very traumatizing for H.B.

[20] I am satisfied that it is in H.B.’s best interests for her to continue to have generous parenting time with Mr. Belguarni by video call.

Travel/H.B.’s Documents

[21] Ms. Brandt seeks an order authorizing her to apply for a passport and other government documents without Mr. Belguarni’s consent. She also seeks an order that Mr. Belguarni’s consent be dispensed with for travel outside of Canada by Ms. Brandt with H.B.

[22] H.B. needs a Canadian passport and other necessary government documents. Given that Mr. Belguarni does not reside in Canada and has not been cooperative in providing basic information to Ms. Brandt such as his address, it is appropriate for Ms. Brandt to be authorized to obtain H.B.’s Canadian passport and other government documents without his consent. Similarly, based on the record before me, I am satisfied that Mr. Belguarni’s consent ought to be dispensed with for travel outside of Canada by Ms. Brandt with H.B.

Child Support/Imputation of Income

[23] Under section 15.1(1) of the Divorce Act the court may, on application by a spouse make an order requiring a spouse to pay for the support of the children of the marriage.

[24] Ms. Brandt asks the court to impute income of $44,937 to Mr. Belguarni for child support purposes.

[25] The federal Child Support Guidelines, SOR/97-175 (the “CSGs”) provide the following in section 19(1):

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

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

b. The spouse is exempt from paying federal or provincial income tax;

c. The spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

d. It appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;

e. The spouse’s property is not reasonably utilized to generate income;

f. The spouse has failed to provide income information when under a legal obligation to do so;

g. The spouse unreasonably deducts expenses from income;

h. The spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and

i. The spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

[26] The imputation of income to a party is fact-driven and depends on the unique circumstances before the court (Kinsella v. Mills, 2020 ONSC 4785, at para. 167). Under section 19 of the CSGs the court has the discretion to determine the amount of income that is imputed. However, in exercising that discretion, the court must have a rational basis for the amount determined to be imputed, grounded in the evidence (Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711, at para. 44).

[27] As Mr. Belguarni chose not to participate in this litigation, the court does not have direct evidence of Mr. Belguarni’s income from employment. Ms. Brandt attaches text messages from Mr. Belguarni in which he told her was earning 6,675 Qatari riyals per month (equivalent to approximately $2,350.30 CAD with the currency conversion). Ms. Brandt’s evidence is that during the relationship Mr. Belguarni worked as firefighter in Doha, Qatar. His income in that role was between around $28,000 CAD to $40,000 CAD. She states her belief that he continues to be employed in the same role, either for the Ministry or another company. His LinkedIn profile lists firefighter as his job title and the Qatar Ministry of the Interior as his employer. Ms. Brandt’s evidence is that Mr. Belguarni has also told her that he works for a company that sells supplies for firefighting.

[28] Ms. Brandt states that his income must be grossed up for child support purposes, as there is no personal income tax in Qatar. She further notes that Mr. Belguarni receives housing and paid transportation as part of his employment benefits. She estimates that the total value of his employment benefits is at least $10,000 CAD.

[29] From the time that H.B. was born until the parties separated and for about a year following, Mr. Belguarni was sending Ms. Brandt around $900 per month for H.B.’s maintenance. He has not sent any child support since around August 2021.

[30] Based on the record before me, including Mr. Belguarni’s historical income as a firefighter in Qatar, the fact that there is no personal income tax, and the employment benefits he receives, I am satisfied that the monthly income Ms. Brandt proposes be imputed to Mr. Belguarni for child support purposes ($44,937 CAD) is appropriate.

[31] Mr. Belguarni shall pay table child support for H.B. to Ms. Brandt in the amount of $417 per month based on his imputed annual income of $44,937.

Divorce

[32] Ms. Brandt also seeks a divorce. She has filed her affidavit in support of the divorce and her marriage certificate.

[33] The parties separated on November 5, 2020. The legal basis for the divorce is that they have been separated for at least one year.

Disposition

[34] Order to go as follows:

a. Ms. Brandt shall have final sole decision-making responsibility for H.B.

b. H.B. shall live primarily with Ms. Brandt.

c. The consent of Mr. Belguarni for travel by Ms. Brandt outside of Ontario and Canada with H.B. shall be dispensed with.

d. Ms. Brandt shall be authorized to apply for a passport and for any passport renewals as well as any other government documents for H.B. without the consent or signature of Mr. Belguarni.

e. Mr. Belguarni shall be imputed with an annual income of $44,937.

f. Commencing June 1, 2022, Mr. Belguarni shall pay Ms. Brandt the sum of $417 per month for the support of H.B. based on an imputed income of $44,937 and the CSGs.

g. For as long as child support is to be paid, Mr. Belguarni shall provide updated income disclosure to Ms. Brandt each year within 30 days of the anniversary of this Order in accordance with section 24.1 of the CSGs.

h. SDO to issue.

i. Divorce order attached.

J. Steele J.

Released: August 19, 2022