COURT FILE NO.: FS-22-07-00
DATE: 2022 09 16
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Adenike Ogunware, Applicant
AND:
Ramon Ganiyu, Respondent
BEFORE: André J.
COUNSEL: J. Piafsky, for the Applicant
P. Kuye, for the Respondent
HEARD: July 12 and 29, 2022
ENDORSEMENT
ANDRé J.
[1] The Applicant, Adenike Ogunware, seeks a court order imputing an income of $100,000 to the Respondent, Ramon Ganiyu, for child support purposes, requiring him to pay 50% of the carrying costs of a property municipally known as 2 Fairlight Street, Brampton, awarding her 50% of the net proceeds of sale of the matrimonial home and requiring him to pay section 7 expenses. The parties solved the issue regarding section 7 expenses during a case conference following this hearing. The other issues remain outstanding.
BACKGROUND INFORMATION
[2] The parties were unmarried. They began cohabiting in 2002 and separated in 2017. They have three children: Fayobi Ganiyu, born on August 31, 2003; Ayotomiwa Ganiyu, born on August 15, 2008; and Olumide Ganiyu, born on May 5, 2016.
[3] The parties purchased a home located at 33 – 2008 Martin Grove Road, Etobicoke. The ownership of this property is in dispute. The Respondent submits that he is the property’s sole owner given that the Applicant made no contribution to its purchase. The Applicant, on the other hand, insists that she financially contributed to the acquisition of the home. They obtained a mortgage of $156,940 from the Royal Bank of Canada to meet the $160,000 price tag on the home. On July 14, 2016, the Respondent placed a new mortgage in the amount of $276,000 on the property. The Applicant deposes that she does not know what happened to the funds.
[4] The Applicant also deposes that when the Respondent was in Nigeria, which he frequently travelled to, she paid 100% of the mortgage payment and presented copies of cheques to the court to confirm that she paid some of the maintenance fees relating to the property. She also notes that she borrowed funds to pay $31,000 of property taxes owed on the property. Additionally, the Applicant deposes that she renovated the property with her own funds.
[5] The Applicant purchased a home municipally known as 2 Fairlight Street, Brampton, following the breakdown of the marriage. An Agreement of Purchase and Sale attached to her June 13, 2022 Affidavit indicates that a) she was the sole purchaser and b) she paid a $25,000 deposit to acquire the property.
[6] The Martin Grove property was sold for $395,023.76. The Applicant deposes that the Respondent received $38,996.74 from the net proceeds of sale while the Applicant received nothing. The Respondent has not disclosed what happened to the remainder of the net proceeds of sale.
[7] The Applicant states that the Respondent has several businesses in Canada and Nigeria. He has a regular job in Canada as a courier at a company called Starship Courier. He is also a musician who spends, on average, three to five months in Nigeria annually. Furthermore, he has a business exporting cars from Canada to Nigeria for resale. The Respondent has not provided financial statements from his U.S. and Nigerian bank accounts. He allegedly has accounts at the Guaranty Trust Bank in Nigeria and a CIBC U.S. chequing account and, despite repeated requests, has failed to provide any disclosure regarding these accounts. The Respondent has denied a) earning considerable sums of money from his music and b) having bank accounts in the U.S. or Nigeria.
[8] The Applicant, a nurse, earned $81,600 in 2020 and $125,000 in 2021; the higher figure in 2021 resulted largely from overtime pay. The Respondent states that he earns $31,000 annually in his courier business and that playing in a band is simply a hobby which does not generate any income.
[9] The Fairlight Street property was sold on August 24, 2022.
POSITION
[10] The Applicant’s counsel submits that:
a. The Respondent should pay child support for the parties’ three children retroactive to October 1, 2021, and on the first day of each month thereafter;
b. An annual income of $100,000 should be imputed to the Respondent;
c. Child support payments shall be enforceable through the Family Responsibility Office;
d. The Respondent shall be ordered to pay 50% of the expenses of 2 Fairlight Street, Brampton immediately;
e. Following the sale of 2 Fairlight Street, Brampton, the Applicant shall receive 50% of the net proceeds of sale with the remaining 50% held in trust by the Real Estate lawyer.
POSITION OF THE RESPONDENT
[11] The Respondent’s counsel submits that:
a. The Respondent has a net annual income of $30,487 and should only pay child support based on this amount (which comes to $647 monthly);
b. The Respondent wholly owned the Martin Grove property and the Applicant has no entitlement to any of the proceeds of the sale;
c. The Respondent shall be required to pay 50% of the maintenance costs of the Martin Grove property until its sale in August 2022;
d. The Respondent’s music income is negligible;
e. The Applicant’s income is grossly unrepresented and does not include the $1,600 a month in rental income she currently receives;
f. The funds from the sale of the Martin Grove property were used to purchase the property located at 2 Fairlight Street. To that extent, the Respondent is a co-owner of the Fairlight property.
ANALYSIS
[12] This motion raises the following issues:
a. Should the Respondent be ordered to pay child support for the three children of the marriage?
b. If so, should an income of $100,000 be imputed to the Respondent for child support purposes?
c. Should child support payments be made retroactive to the date of separation?
d. Should the Respondent be ordered to pay 50% of the expenses relating to the property known as 2 Fairlight Street, Brampton?
e. Should the Applicant and/or the Respondent receive 50% of the net proceeds of sale of 2 Fairlight Street, Brampton?
f. What quantum of costs should be awarded to the successful litigant?
a. Should the Respondent be ordered to pay child support for the three children of the marriage?
[13] In my view, he should. The Applicant has borne the sole responsibility of caring for the children since separation in 2017. The Respondent has paid no child support. His dereliction of his duty to financially support his children has clearly created financial hardship for the Applicant.
b. Should an income of $100,000 be imputed to the Respondent for child support purposes?
[14] I conclude, for the following reasons, that it should. First, the imputation of income is, as noted in Drygala v. Pauli, 2002 CanLII 41868 (ON CA) at para. 32, “one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this legal obligation, a parent must earn what he or she is capable of earning.”
[15] Second, section 19(1) of the Child Support Guidelines, O. Reg. 391/97, under the Family Law Act, R.S.O. 1990, c. F. 3 [“FLA”], allows the Court to impute income “as it considers appropriate in the circumstances.”
[16] Third, as noted in Colucci v. Colucci, 2021 SCC 24, [2021] SCJ No 24 (QL), at para. 52, “courts have increasingly recognized that the payor’s duty to disclose income information is a corollary of the legal obligation to pay support commensurate with income,” and that a court can “impute income to payor who have failed to make adequate disclosure.”
[17] Fourth, a party’s lifestyle constitutes evidence that can support an inference that a party has undisclosed income that may be imputed for the purpose of determining child support: see Bak v. Dobell, 2007 ONCA 304, [2007] CarswellOnt 2324 at para. 43.
[18] In my view, the following evidence, mostly uncontradicted, justifies imputing an income of $100,000 to the Respondent:
a. While he claims that he only earns approximately $30,450 annually, he had sufficient funds to travel to Nigeria where he spends three to four months playing music. It is simply remarkable that he could do so on such an income;
b. Despite repeated requests, the Respondent has failed to disclose copies of his passport to the Applicant to confirm how often he travels to Nigeria annually;
c. The Respondent has failed to comply with court orders requiring him to provide full financial disclosure, including bank statements, his CIBC chequing account records, and airline tickets. For example, I ordered him on May 24, 2022, to serve and file his Answer and Financial Statement by June 8, 2022. He failed to do so.
d. The Financial Statements he filed do not disclose his income;
e. He has managed to pay back $60,000 of debt since the parties separated in 2017. Absent a financial windfall, of which the court has no evidence, the Respondent could not have done that on an annual income of $30,450 approximately.
f. Furthermore, it is inconceivable that the Respondent would have an annual income of $30,450 after working as a courier for a company called Starship Courier for over a quarter century;
g. If the Respondent was away from Canada for three to five months in a year, he clearly earns an additional income as a musician to compensate for lost income as a courier during his absence from Canada;
h. The Respondent declared gross business income of $83,479 in 2018, $96,436 in 2019, $62,571 in 2020 and $75,346 in 2021. The amounts do not include the income the Respondent earned in Nigeria.
[19] From this evidence, I am prepared to impute an annual income of $100,000 to the Respondent for the purpose of computing child support payments to the Applicant.
c. Should child support payments be made retroactive to the date of separation?
[20] The Supreme Court of Canada’s decision in Michel v. Graydon, 2020 SCC 24, [2020] CarswellBC 2302 [“Michel”] at para. 17 answers this question. The court noted that “courts should avoid creating any incentive whatsoever for payor parents to avoid meeting their child support obligations… Permitting retroactive child support awards… is perfectly consistent with the child support system.”
[21] Based on the reasoning in Michel, an order for retroactive child support payments is justified. Following separation, the Respondent devoted his attention to his music gigs in Nigeria and reducing his debts while ignoring his obligation to support his children. The court should simply not countenance this dereliction of the Respondent’s parental duty by failing to make an order requiring him to pay retroactive child support, even on an interim basis.
d. Should the Respondent be ordered to pay 50% of the expenses relating to the property known as 2 Fairlight Street, Brampton?
[22] The following statutory conditions are relevant to this question:
a. Section 24 of the FLA gives the court the authority to order a spouse to pay towards the maintenance and liabilities of a home;
b. Section 23 of the FLA also authorizes a court to make an interim or final order “respecting any matter authorized to be ordered under clause 24 (1)(a), (b), (c), (d), or (e) (matrimonial home)”;
c. Section 24(1)(e) states that a court can “order a spouse to pay for all or part of the repair and maintenance of the matrimonial home and of other liabilities arising in respect of it, or to make periodic payments to the other spouse for those purposes.”
[23] Should an order, contemplated by sections 24 and 34 of the FLA, be made in the matter?
[24] The Respondent maintains that he transferred a portion of the net proceeds of sale of the Martin Grove property to the purchase of 2 Fairlight Street, Brampton. The Applicant disputes this. The Respondent also claims that, before the separation, he paid for some of the property’s maintenance costs. He is also claiming 50% of the net proceeds of sale of this property.
[25] To the extent that the Respondent insists that he co-owns the Fairlight Street property, then he should be required to pay 50% of its maintenance costs.
e. Should the Applicant and/or Respondent receive 50% of the net proceeds of sale of the property located at 2 Fairlight Street, Brampton?
[26] The Applicant needs to find accommodation for the children and herself now that 2 Fairlight Street has been sold. It is therefore appropriate that she receives 50% of the net proceeds of sale to enable her to smoothly transition from that residence to her new abode.
[27] On the other hand, there is a dispute whether the Respondent co-owns the property. Awarding him 50% of the net proceeds of sale would be tantamount to resolving this issue in his favour at this interim stage without fully adjudicating the matter. That, in my view, would be inappropriate. Therefore, I decline to do so.
COSTS
f. What quantum of costs should be awarded to the successful litigant?
[28] The Applicant seeks costs of $17,000 and $14,000 on a full indemnity basis and on a partial indemnity basis, respectively. The Respondent seeks costs of $12,000 and $9,000 on a similar basis, respectively.
[29] In assessing the amount of costs that can be considered fair and reasonable in this matter, and the party who should be awarded costs, I consider the following factors:
a. The Applicant was substantially successful in this matter,
b. The matter was relatively complex, requiring research and the preparation of a factum,
c. The matter required two days of hearing, and
d. The Respondent failed to comply with court orders.
[30] Based on the above, I conclude that costs of $12,000 inclusive is fair and reasonable in this matter.
[31] Order to go that:
The Respondent, Ramon Ganiyu (“Father”), shall pay child support to the Applicant, Adenike Ogunware (“Mother”), for the children of the relationship: Fayobi Ganiyu (born August 31, 2003), Ayotomiwa Ganiyu (born August 15, 2008), and Olumide Ganiyu (born May 5, 2016). The child support will be $1,920 per month based on an imputed annual income of $100,000, retroactive to October 1, 2021, and on the first day of each month thereafter.
The Father shall pay the Mother the $17,280 of child support arrears for the time period from October 1, 2021 up to and including June 2022, within 20 days of this order.
Statutory Deduction Order to apply.
Without prejudice to the Mother’s position with respect to retroactivity, the Respondent shall pay 50% of the expenses relating to the property municipally known as 2 Fairlight Street, Brampton, ON, L6Z 3W8 (“2 Fairlight Street”), including for the mortgage with the Royal Bank of Canada, the property insurance, the property taxes, other expenses for the property, incurred between the date of separation and August 24, 2022, when the transaction for the sale of the property closed.
The net proceeds of sale of 2 Fairlight Street shall be dealt with as follows:
a. The Mother shall receive 50% of the net proceeds of sale upon closing. The Father shall sign any and all forms and take any and all steps as are necessary to release the funds to the Mother;
b. The remaining 50% of the net proceeds of sale shall be held by the Real Estate lawyer in Trust until further order of the court, or written agreement of the parties, without prejudice to the Mother’s claims in these proceedings and her ability to seek further disbursement to her at any time;
c. The Respondent shall pay the Applicant her costs of this motion fixed in the amount of $12,000 inclusive, within ninety (90) days of this order.
André J.
Date: September 16, 2022
COURT FILE NO.: FS-22-07-00
DATE: 2022 09 16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Adenike Ogunware
- and -
Ramon Ganiyu
ENDORSEMENT
André J.
Released: September 16, 2022