COURT FILE NO.: FC-19-1979-2
DATE: 2022/09/20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ghizlane El Alalami El Himli
Applicant
– and –
Adnane Benmoussa
Respondent
Applicant, Self-Represented
Respondent, Self-Represented
HEARD: April 26, 2022
REASONS FOR DECISION ON UNCONTESTED TRIAL
PARENTING, CHILD SUPPORT, AND S. 7 EXPENSES
somji J
Overview
[1] This decision addresses the mother’s Application for parenting orders and an order to increase child support and vary the apportionment for contribution for s. 7 expenses following an uncontested trial. One of the central issues at trial was whether and how child support can be increased in circumstances where a parent fails to provide their income tax returns and income information to the other parent and furthermore, fails to engage in legal proceedings that would permit the court to discern his income and order the appropriate amount of child support.
[2] The parties married in 2006 and separated in 2010. They have two children A.B. age 12 and I.B. age 8. The parties entered into a Separation Agreement dated June 13, 2019, that resolved parenting issues and child support (“Agreement”). Under the Agreement, the mother has sole decision making of the children and they live primarily with her. The father has parenting time on alternate weekends. The Agreement requires the father to pay child support commensurate with his 2019 income and 50% of the children’s s. 7 expenses. The father currently pays $945/month under a Support Deduction Order.
[3] According to the mother, the father has not seen or contacted with his children since the end of June 2021. He has also stopped largely communicating with the mother. In September 2021, the mother filed an application to revisit various parenting issues and child support. The father was noted in default and the matter proceeded to an uncontested trial on April 26, 2022.
[4] The terms of the Agreement were never vested into a court order. Three years later, the mother seeks a formal court order setting out the parenting terms and conditions. She also seeks an order for child support, but believes the father is now earning more than he was in 2019. Unfortunately, she has no evidence to support this belief and the father’s failure to provide financial disclosure makes it difficult to discern the appropriate amount of child support that should be paid.
[5] The issues to be decided are:
Have the grounds for an uncontested trial been established?
Is it in the best interests of the children to grant the parenting orders requested by the mother?
Is the mother entitled to an increase in child support over and above the amount stipulated in the parties’ 2019 Separation Agreement?
Is the mother entitled to retroactive s. 7 expenses and an order for ongoing s. 7 expenses to be calculated in proportion to the parties’ incomes instead of a 50/50 split as per the 2019 Separation Agreement?
Can the children travel without the father's consent?
Analysis
Issue 1: Have the grounds for an uncontested trial been established?
[6] Rule 10(1) of the Family Law Rules, O. Reg. 114/99 (“FLR”), provides for 30 days in which a Respondent may serve and file an Answer, failing which “[t]he consequences set out in paragraphs 1 to 4 of subrule 1 (8.4) apply” pursuant to r. 10(5). One of those consequences is the option to proceed to an uncontested trial of the case.
[7] An “uncontested trial” is defined at r. 2(1) as “a trial at which only the party making the claim provides evidence and submissions.”
[8] In September 2021, the mother filed an Application to address various parenting issues and child support. The father failed to provide a response to the mother’s application in the requisite 30 days and was noted in default on March 28, 2022, by the Honourable Justice O’Bonsawin of the Superior Court of Justice, as she then was. The matter was scheduled for an uncontested trial on April 26, 2022. The SCJ Family Counter has confirmed that an email with a copy of Justice O’Bonsawin’s endorsement was sent to the father on March 28, 2022. I am satisfied the father was aware of the date for the uncontested trial. He did not attend for trial.
[9] Justice O’Bonsawin also ordered the father to pay costs in the amount of $500 within 30 days of her Order. The mother testified that she believes the father was aware of the trial date because the father e-transferred her $500 on the morning of trial which she believes is payment of the costs award.
[10] I am satisfied that the requite conditions have been met to proceed to an uncontested trial. The father had an opportunity to file a response to the Application and failed to do so. The mother reports that he attended a mediation session in November 2021 and would have been aware of the issues concerning the mother. The father received a copy of Justice O’Bonsawin’s endorsement and neither appeared nor contacted the court.
[11] Affidavit evidence may be relied on at an uncontested trial unless the court directs that oral evidence be given: rule 23(22) FLR. In this case, I directed the mother to testify under oath about the events leading up to the uncontested trial and the basis for her parenting requests. I also requested her to file supplementary materials regarding the father’s responses to her requests for financial disclosure and her understanding of his present employment and income. However, as discussed below, the mother has been unable to provide evidence to support her claim for the father’s present earnings.
Issue 2: Is it in the best interests of the children to grant the parenting orders requested?
[12] The primary consideration in determining the parenting plan for the children which includes in this case primary residence, decision-making responsibility, and parenting time for the father, is the best interests of the children: Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 24 (“CLRA”). Section 24 of the CLRA endorses a child-centered approach in determining parenting orders: Young v Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, at pp. 62-63, per L’Heureux-Dubé J.; Knapp v Knapp, 2021 ONCA 305, at para 34.
[13] The best interests factors requires primary consideration of the children’s physical, emotional and psychological safety, security and well-being: CLRA, ss. 24(1)-(2). Section 24(3) CLRA lists additional factors that must be considered. The CLRA provisions read as follows:
Best interests of the child
24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25, Sched. 1, s. 6.
Primary consideration
(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 2020, c. 25, Sched. 1, s. 6.
Factors
(3) Factors related to the circumstances of a child include,
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.
[14] In this case, the mother has been the primary caregiver of the children. The 2019 Agreement states that the mother would have decision-making responsibility for the children in matters of health, education, and welfare. The father has not challenged the mother’s decision-making authority, nor has he offered up an alternate plan of care.
[15] The father has not seen or contacted his children since the end of June 2021. According to the mother, the father was to have the children for one-month in the summer of 2021 but dropped the children off after several days. Since that time, he has had no in-person or virtual contact with the children. He has not communicated with the children or sent them holiday gifts or greetings, including on their birthdays.
[16] According to the mother, the children have no contact with their father’s extended family. There is some family in Montreal. She testified she reached out to one of the father’s cousins in the summer of 2021 but was informed even they have limited contacted with the father.
[17] Based on the evidence presented and upon consideration of the best interest factors including the history of care, the need for stability, the age and development needs of the children, and the absence of any proposed plan of care from the father, I find that it is in the best interests of the children that the mother have sole decision-making responsibility for the children on all matters and that they continue to reside primarily with her.
[18] The Agreement stipulated that the father would have parenting time on alternate weekends. The mother wishes for the children to have a relationship with the father, but he has not exercised any parenting time since June 2021. There will be an order that going forward, the father will have in-person and/or virtual parenting time at the mother’s discretion.
[19] There will be a final order that:
a. The mother shall have sole decision-making responsibility for the children;
b. The children shall reside primarily with the mother;
c. The father will have parenting time, virtual or in-person, at the discretion of the mother.
Issue 3: Is the mother entitled to an increase in child support over and above the amount of stipulated in the parties’ 2019 Agreement?
[20] Under the 2019 Agreement, the father is required to pay child support on the basis of his 2019 income of $62,000. The mother testified that she receives $945/month from the Family Responsibility Office (“FRO”).
[21] The mother believes the father continues to work at either Ferguslea Properties’ Development or Accora Village at Bayshore Mall and that his present income is closer to $85,000 a year. The mother requests that this court impute his income at $85,000/year for the purposes of on-going child support. However, the mother has no evidence to substantiate her position beyond her belief that the father’s income has increased. The father has not provided the mother with any recent income tax returns and has also largely ceased to communicate with her.
[22] After the initial hearing on April 26, 2022, the mother was requested to provide additional evidence to substantiate the father’s income as well as any communications she has had with him regarding his financial disclosure. The mother filed a supplementary affidavit dated May 13, 2022, in which she attaches a text which she states was sent to the father on August 1, 2020, asking the father to provide his 2019 and 2020 income tax returns to recalculate child support. The father replied on September 24th, stating “please text me”. The year is not stipulated on the text messages. The mother states she has had no further written communication with the father on the issue and that all other What’s App communications with the father are deleted. The mother acknowledges, however, that the father did contribute to the costs of the kids’ plane tickets to Morocco for their trip in July/August 2022.
[23] According to the mother, the father attended mediation in November 2021, but refused to sign a mediation agreement following the session.
[24] The mere fact that the Respondent has failed to file an Answer does not preclude the need to ensure that proper evidence is filed by the applicant to enable a family court judge to make an order for the relief sought: E.S.R. v R.S.C. (2019) ONCJ 381 at para. 208; CAS v J.U. and B.P.-M., 2020 ONSC 3753, 42 R.F.L. (8th) 373, at para. 10.
[25] The dilemma, of course, is that the father has not provided financial disclosure to allow the court recalculate child support and the mother has been unable to obtain any information to support her request for income to be imputed at $85,000. On the other hand, child support is the right of the children. The children should not be penalized by the father’s non-compliance with the law requiring him to provide his income information upon receipt of the mother’s application to this court for an order of child support: r. 13 FLR and s. 21(2) Child Support Guidelines, O. Reg. 391/97; see also parallel provisions in the Federal Child Support Guidelines, SOR/97-175, as am.
[26] As a result of the father’s failure to file a response including his income information, the matter was set down for a hearing. In such circumstances, the court may draw an adverse inference against the spouse who failed to comply with the financial disclosure and impute income to that spouse in such an amount as it considers appropriate: ss. 19 and 23 Child Support Guidelines, O. Reg. 391/97; see also parallel provisions in the Federal Child Support Guidelines.
[27] According to the 2019 Agreement, the father’s income in 2019 was $62,000. There is no evidence before me that the father is no longer employed as the mother continues to receive support from FRO. In the absence of information about what exactly the father does, it is difficult to determine what the average wage increases have been for the father’s profession to impute an income consistent with that wage increase.
[28] This court is not entitled to impute an arbitrary amount of income to the father. Such an approach would be unfair: Monahan-Joudrey v. Joudrey, 2012 ONSC 5984 at paras 20 and 21; Staples v Callender, 2010 NSCA 49 at para 21. On the other hand, the children’s right to child support should not be undermined by the father’s failure to comply with his financial disclosure obligations and unwillingness to engage in court proceedings. For this reason, I find that a fair and reasonable approach would be to impute the father’s income to be consistent with the increase in cost of living since 2019.
[29] According to the Bank of Canada Inflation Calculator, the average cost of living has increased by approximately 3.87% between July 2019 and July 2021. https://www.bankofcanada.ca/rates/related/inflation-calculator. According to the Bank of Canada Inflation Calculator, the average cost of living has increased a further 7.59% in 2022.
[30] Given the father has failed to provide any income disclosure to suggest that his wages have not increased to commensurate with inflation, I find it is fair and reasonable to impute the father’s income for the period of September 2021 when the mother filed her Application to July 2022 at $64,399 (3.87% increase). For the period effective July 1, 2022, the father’s income will be imputed at $69,196 commensurate with the further cost of living increase of 7.59%.
[31] Based on those imputed income, there will be an interim order that the father pay child support pursuant to the Family Law Act, R.S.O. 1990 c. F.3 and in accordance with the Child Support Guidelines, O. Reg. 391/97
a. Retroactive child support based on an annual income of $64,399 in the amount of $981.22/month for the period of September 1, 2021 to July 1, 2022 for a total of $9,812.
b. Retroactive child support based on an imputed income of $69,196 in the amount of $1054/month for the period of July 1, 2022 to September 1, 2022 for a total of $2108.
c. Ongoing child support effective September 1, 2022, based on an imputed income of $69,196 in the amount of $1054/month.
[32] The child support order will be made on an interim basis. Child support will continue to be enforced by FRO through a Support Deduction Order. The father shall be credited for any support already paid.
[33] There was no clause in the parties Agreement requiring the father to exchange of information annually, and moreover, even had such a clause been included, the Agreement was not converted into a Final Order so as to allow this Court to find the father in contempt for breach of a court order. Consequently, there will be an order that the father shall provide the mother with the following financial disclosure by October 1, 2022:
a. His complete Income Tax Returns and Notices of Assessment for 2020 and 2021;
b. The name and contact information of his current employer and proof of his current salary in 2022; and
c. His last three pay stubs for from his current employer.
[34] Thereafter, there will be an order that the parties will exchange with one another their annual Income Tax Return and Notice of Assessment by June 1st of each year.
[35] The interim child support order will be reviewable in the spring of 2023. The mother shall contact the Trial Coordinator’s office to find a date to have the matter returned before me in 2023 and inform the father accordingly. Should the father take issue with the imputation of income and amount of child support ordered, he may present evidence and arguments to the contrary on the basis of his financial information. This final opportunity to provide submissions is being provided notwithstanding the father has been noted in default.
[36] The mother should also take steps to gather in the interim as much additional evidence she can to substantiate her belief of the father’s present income before a final order is imposed.
[37] Similarly, if upon receipt of the father’s financial disclosure, the mother learns that the father’s income was higher than imputed, she may bring an application to seek child support arrears retroactive to 2020 and ongoing child support based on the higher income. As stated in Colucci, in circumstances where a spouse has failed to provide financial disclosure, a presumption varying support to the date of the father’s increase in income would better reflect the mother’s informational disadvantage and remove any incentive for payors to withhold disclosure or underpay support in the hopes that the status quo will be maintained: Colucci v Colucci, 2021 SCC 24 at paras 43 and 45.
Issue 4: Retroactive and ongoing s. 7 expenses
[38] According to the 2019 separation agreement, the parties s.7 expenses were to be shared 50/50. The mother claims that the father has not contributed to those expenses. However, the agreement also required the mother to provide notice to the father in June of each year as to what those expenses were so that he could have an opportunity to pay. The mother has not filed any receipts for those s. 7 expenses and no longer has copies of her communications with the father regarding those expenses. There is insufficient evidence upon which this Court can order the father to pay retroactive s. 7 expenses.
[39] The mother requests that s. 7 expenses going forward be apportioned according to the parties’ respective incomes. The father’s income is imputed at $69,196. The mother has provided her income tax return and her 2021 income was $30,941. On this basis, the father will pay for 69% of the s. 7 expenses and the mother shall pay 31% of the s. 7 expenses.
[40] There will be an interim Order that:
a. Effective September 1, 2022, the cost of s. 7 expenses will be apportioned in accordance with the parties respective incomes and father will pay for 69% of the costs and the mother shall pay 31% of the costs.
b. The mother shall inform the father of any extracurricular activities and anticipated special and extraordinary expenses. Consent shall not be reasonably withheld by the father.
c. The mother shall provide the father with copies of receipts for any extracurricular activities and special and extraordinary expenses for the children within 30 days of payment.
d. The father shall reimburse the mother for his portion of the expenses within 30 days of receiving the receipts.
[41] The mother has filed an estimate for orthodontic expenses for one child in 2022 in the amount of $7500. There is no evidence before me that either party has insurance coverage for dental expenses. The father shall pay the mother or his portion of the costs in the amount of $5,175 in three equal installments of $1,725 within 90 days of this Order. The first installment shall be payable by October 1, 2022, the second by November 1, 2022, and the third by December 1, 2022.
Issue 5: Can the children travel without the father’s consent?
[42] The mother testified that she would like for her children to travel with her to Morocco this past summer to visit with family. At the trial, she indicated she had already purchased tickets for the children. On April 26, 2022, I issued a temporary order that the mother may travel with the parties’ two children within and outside of Canada without the consent of the respondent father. That condition will now form part of the final order.
Costs
[43] The mother attended for two appearances before me in relation to this matter and spent time filing her Application and gathering supplementary materials following the hearing. She is self-represented. Costs are in the discretion of the judge. Having considered that the mother is the successful party, the father’s conduct, and the father’s ability to pay, I find that a costs award in the amount of $500 is fair and reasonable in this case. There will be an order that the father pay the mother costs in the amount of $500 within 30 days.
[44] Costs incurred for the purposes of support are enforceable by FRO pursuant to s. 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31(“Act”); see also Wildman v Wildman (2006), 82. O.R.(3d) 401 (C.A.); Scipione v Scipione 2015 ONSC 5982 at para. 142. In this case, the most time consuming matter in this application related to child support. The costs award constitutes the mother’s time and expense in relation to support or maintenance, and as such, should be enforceable by the Director of the FRO pursuant to s. 1(1)(g) of the Act. There will be an order that:
a. The costs award relates to support within the meaning of section 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 and a such, is enforceable by FRO.
b. Unless the support order is withdrawn from the Office of the Director of the Family Responsibility Office, it shall be enforced by the Director and any amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.
Somji J.
Released: September 20, 2022
COURT FILE NO.: FC-19-1979-2
DATE: 2022/09/19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ghizlane El Alalami El Himli
Applicant
– and –
Adnane Benmoussa
Respondent
REASONS FOR DECISION ON UNCONTESTED TRIAL-CHILD SUPPORT AND S. 7 EXPENSES
Somji J.
Released: September 20, 2022