Court File and Parties

NEWMARKET COURT FILE NO.: FC-21-201-00 DATE: 2022-02-03 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Rafael Ori Cohen Applicant

– AND –

Liat Cohen Respondent

Counsel: Golan Yaron, Counsel for the Applicant Holly Langille, Counsel for the Respondent

HEARD: January 26, 2022

RULING ON MOTION

JARVIS J.

[1] The respondent (“the mother”) has brought a motion for child support for the parties’ four children. She seeks to impute to the applicant (“the father”) a $33,490 income which would result in a $835 monthly order. She also asks that the order be made retroactive to December 2, 2020 being the date when the parties separated.

[2] The father has also brought a motion to strike certain paragraphs from the mother’s affidavit as offending Family Law Rules 14(18) and (19). These rules require evidence based on personal knowledge and, if reliance is made on third party information, disclosure of the source of that information. Other relief was sought but will not be addressed in this ruling.

Background

[3] The parties were married in Israel in 2004. There are four children of the marriage ranging between 15 and 9 years of age. One of the children is legally blind. That child and another also have ASD and ADHD. The children have primarily resided with their mother since their parents separated. She has been a homemaker. Except for a modest payment, the father has paid nothing for child support. He says that his work skills and abilities are limited due to his poor English skills and because he is diabetic. He and the family have subsisted on charity and support from their community. As the mother receives social assistance and the Child Tax Benefit, the father says that she “has sufficient funds from public resources, and in fact should be working to support me as well”.[^1]

[4] Since these proceedings were started on February 3, 2021 there have been nine court events involving motions (at least three being described as urgent), two case conferences (the most recent also being noted as urgent), the Jewish Child and Family Services became involved, so too the police (at least six police contacts before the father tried on February 1, 2021 to have the mother charged with fraud), and, pursuant to an Order made by Himel J. on October 20, 2021, a Voice of the Child Report was concluded on November 22, 2021. All this in less than a year!

[5] Context is important to understanding what this Court views as an astounding abuse of public and court resources. In a Ruling made on March 16, 2021 dealing with parenting Charney J. made several revealing observations.

[9] The parties moved to the United States in 2007, first living in Los Angeles, and in 2011 moving to Brooklyn.

[10] The parties lived in the United States illegally. As part of an immigration scam, the parties were divorced in Las Vegas in March 2008, with the intention that one of them, or perhaps both, would marry an American citizen and be permitted to remain in the United States. The parties remained together and did not obtain a religious divorce.

[11] The father contends that the mother attempted to marry an American citizen, but the prospective groom declined to participate in the fraud.

[12] The mother contends that the father did marry an American woman, but immigration officials discovered that it was a fraudulent marriage and refused to grant him citizenship. The father was then divorced from his American wife…

[24] All police reports relating to the parties from both the Fredericton and York Region police departments have been provided to the courts. The reports reveal that the parties have been involved in several fraudulent schemes, including insurance fraud and charities fraud. The details of these fraudulent schemes are set out in the police report and other documents filed. It is not necessary for the purposes of this motion to review those details.

[25] The parties don’t deny the frauds, but each party blames the other. The father’s affidavit takes the position that the mother was the author of the frauds, the father simply an innocent bystander. The mother takes the position that she was coerced by the father to perpetrate the frauds.

[26] Following the mother’s departure from the home on December 2, 2020, the police records indicate that the father went to the York Region police with evidence of these frauds in an effort to persuade them to arrest the mother so that the children would be returned to him.

[6] The Police Reports to which Charney J. alluded contained the following information beginning with the father’s attendance at the local police station on the morning that he started these proceedings.

I [the investigating officer] reviewed his historical contact with police and there were six police contacts. Two domestic incident (sic) in Apr and Dec of 2020. There seems to be some issues with his marital relation and custody of the 4 children with his wife. Three fraud reports, two with fraudulent information posted on Gofundme against his wife Liat COHEN (separated), Car Insurance fraud against his wife with forging his signature. One theft of vehicle, where it was unfounded as the vehicle was sold to a scrap yard.

I also direct (sic) his attention with his obsession to have his wife charge (sic) criminally, I told him that his motive is very suspected (sic) and questionable. I also stated that he seems to be in a rush to see police to move forward with the case. Additionally, He told police his wife (separated) should be charged. I asked complainant if there is (sic) some family issues, he claimed he is going through a custody battle with his wife in Family Court. I told him repeatedly there is insufficient evidence to proceed, and the case he reported to police is civil in nature and that he can resolve it himself quickly. I than (sic) told complainant he should not think adding a criminal charge to his separated wife will help with his custody battle in Family Court. I asked him to seek peace, lookout for the children interests and be patience with the civil proceeding.

[7] As noted by Kiteley J. in Greco v. Wang[^2] “[m]embers of the public who are users of the civil courts are not entitled to unlimited access to trial judges” (at para. 3). While that observation was made with respect to a trial management event, it holds equally true with motions and conferences. Given the current pandemic, its impact on court operations, practical limits on valuable court time and access to justice, it is more than ever incumbent on litigants to act responsibly, and for them to be held accountable. The parties in this case have no assets, no obvious independent means, they have engaged in illegal and fraudulent activities in the United States and Canada over many years, they subsist on the charity of others and the public purse. With little realistic risk of ever being held financially accountable for any of their actions, they are serial abusers of public, community and court services, using those services as their private piggy bank. This must stop.

[8] Neither party is particularly credible but the unchallenged facts are that the children (two of whom have significant challenges) reside with their mother, and the father, who has worked, and can work (despite what he says about his health) has paid almost nothing for their support (only $300), even taking for himself government funds payable to the parties’ blind child. But this motion is about the children’s support. Despite the Court’s misgivings about each party’s credibility, the mother’s evidence about the father’s income and his earning ability will be preferred to his. She has the children and even when the father did earn some income virtually none of that was shared with the family for their support.

Preliminary Objection

[9] Upon receipt and review of the mother’s motion the father brought a motion to strike paragraphs 41, 42, 49 and 53 (last part)[^3] of her affidavit. These paragraphs contained references to information from unnamed “community members, religious or otherwise” (para. 41), “family members” (para. 42), her speculation about the father’s various sources of undisclosed income (para. 49) and his alleged rent-free accommodations and overseas photography income (para. 53, last part).

[10] Family Law Rules 14(18) and (19) provide as follows:

Affidavit based on personal knowledge

(18) An affidavit for use on a motion shall, as much as possible, contain only information within the personal knowledge of the person signing the affidavit. O. Reg. 114/99, r. 14 (18).

Affidavit based on other information

(19) The affidavit may also contain information that the person learned from someone else, but only if,

(a) the source of the information is identified by name and the affidavit states that the person signing it believes the information is true; and

(b) in addition, if the motion is a contempt motion under rule 31, the information is not likely to be disputed. O. Reg. 114/99, r. 14 (19).

[11] If the evidence alleged in the impugned paragraphs was so important to the mother’s motion, there is no reason (and none was given when the motion was argued) why she could not have obtained and disclosed her information sources. She obtained her motion date on December 1, 2021, eight weeks before it was scheduled for a hearing but she only served her motion and supporting affidavit on January 18, 2022, eight days before the hearing-the minimum, acceptable notice time under the Family Law Rules. The Court is unimpressed with this kind of litigation tactic, even if it complied (barely) with the rules.

[12] Paragraphs 41, 42 and 53 (last part) are struck from the mother’s affidavit: no consideration has been given to their contents.

[13] Paragraph 49 refers to the mother’s belief that the father may be hiding income and trying to present a false impression of impoverished circumstances. These kinds of bald allegations are not uncommon in family law and are rightly given little to no weight. So too in this case. The paragraph may remain, but little weight will be given it.

Child support

[14] Sections 15.1(1) to (4) of the Divorce Act[^4] provide as follows:

Child support order

15.1 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.

Interim order

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to pay for the support of any or all children of the marriage, pending the determination of the application under subsection (1).

Guidelines apply

(3) A court making an order under subsection (1) or an interim order under subsection (2) shall do so in accordance with the applicable guidelines.

Terms and conditions

(4) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order or interim order as it thinks fit and just.

[15] Section 19 of the Child Support Guidelines[^5] provides the Court with the discretion to impute income. Subsections (a) and (f) are relevant;

Imputing income

19. (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;

(f) the parent or spouse has failed to provide income information when under a legal obligation to do so;

[16] A number of observations and claims of the parties are relevant:

(a) The mother alleged that the father took a $9,250 disability cheque received from the government for one of their children on December 3, 2020, deposited it into their joint bank account then transferred the funds to his personal account. While the father responded in detailed fashion to the allegations contained in the mother’s affidavit, he did not respond to this allegation;

(b) The father’s April 5, 2021 financial statement discloses credit card and Canada Revenue Agency (“CRA”) debt of $37,852. The CRA debt was shown as $13,852 in respect to which the father swore that he was paying $300 monthly. The father’s financial statement sworn January 2022 discloses nothing owed for credit cards or to the CRA. This cannot have been an inadvertent oversight; the father must have turned his mind to Part 4 of his statement dealing with Debts because he included a $9,000 debt for unpaid rent. One of these financial statements is false, likely both;

(c) In 2021 the father worked in a restaurant. The mother claimed (and the father did not dispute) that he worked as a server, earning undeclared tip income. Neither of the father’s financial statements discloses any tip income, a rather surprising (and suspicious) omission given that tipping is a regular feature of the hospitality industry. He also was paid CERB and Ontario Works;

(d) Except for $300 which the mother acknowledges receiving from the father after the parties attended mediation, the father has paid nothing for support of the children since their parents separated. This is not denied by the father;

(e) The father has asked that his obligation to pay child support be suspended until he is gainfully employed. If his evidence is to be believed, he has rarely been gainfully employed on a full-time basis;

(f) The father shows a $400 monthly car expense in his January 2022 statement;

(g) How did the father incur, if true in 2021, his CRA debt? No explanation;

(h) In paragraph 17 of his affidavit, the father claims that the mother “could easily have a decent job that could support the family and me as well”. In paragraph 31 he added that the mother “has sufficient funds from public resources, and in fact should be working to support me as well”;

(i) In paragraph 40 of his affidavit the father said that he believed “that the children are receiving and are provided for through all of the combined resources of the mother and mine”.

[17] The father alleged that despite living and working in the United States and Canada since 2007 he had poor English language skills. He is also diabetic and claims that he has “extremely high” medical costs. Depending on which financial statement is to be believed those monthly costs are either $400 (April 2021 statement) or $290 (January 2022, but only a receipt for September 2021 was provided). The April financial statement shows a $129 monthly “Medicine allowance”; no such entry can be found in the January 2022 financial statement: there is no explanation for the discrepancy.

[18] The fact of the matter is that the father’s evidence about his financial circumstances is inconsistent and unreliable. Given the family narrative as recounted by Charney J. and partly corroborated by the police records and the parties’ own evidence, the father is not credible. But he wants the mother as primary parent for two children, two with significant challenges, to support him. From the public purse.

[19] The privilege of being involved in the parenting of a child also generates financial responsibilities for the child’s material well-being. That the father would appropriate for his own use a government cheque intended for a disabled child is a breathtaking abdication of a parent’s duty: it is shocking. That the father would pay virtually nothing for child support, even when working and receiving government assistance, and expecting the mother to support him, leaves the Court speechless.

[20] With the end of the lockdown, the father can and should earn the income that the mother asks the Court to impute to him. He proposed as an alternative in his motion that the child support be set at $325 monthly based on his projected 2021 income of $18,540. This, of course, depends on the Court accepting the father as credible. Which it does not. The mother suggests that a $33,490 income be attributed. This is based on her evidence (again, not disputed) that the four-year 2017-2020 average of the father’s income is $27,140 and does not include the $9,250 government cheque kept by the father in December 2020. For want of more reliable and fulsome evidence from the father (which he could have provided notwithstanding the relatively short notice for the mother’s motion) it is not unreasonable to impute a $33,490 income to the father.

[21] The Court is not prepared to deal with support payable since the parties separated based on the current evidentiary record. The matter of any credit to the father for the $300 given to the wife can be taken into account then.

Disposition

[22] The following is ordered:

(a) The father shall pay $835 monthly to the mother for table child support for the four children of the marriage starting February 1, 2022. This is based on a $33,490 income imputed to the father;

(b) The issue of retroactive child support is reserved to final disposition of these proceedings;

(c) Paragraphs 41, 42 and 53 (last part) of the mother’s affidavit are struck.

[23] At the conclusion of the hearing the parties were asked to provide their positions on costs. The mother sought costs of $7,000 and indicated that she had submitted an Offer to Settle and had a Bill of Costs. The father sought costs of $2,500. Both parties were directed to forward their submissions with supporting material to the judicial assistant who was directed to retain them pending the Court’s decision on the merits.

[24] Both parties submitted their Offers to Settle and Bills of Costs. The Offers complied with Family Law Rule 18. In her Offer dated December 19, 2021 the mother proposed that the father pay $750 monthly child support based on a $29,848 minimum wage income starting January 1, 2022 and that arrears of child support be fixed at $6,000 and paid $100 monthly. This Offer was open for acceptance until January 4, 2022. The father’s Offer was dated January 20, 2022 and it proposed that the father pay $385 a month based on a $20,000 income starting January 1, 2021. Since there would be arrears, the father proposed that they be paid at a rate of $100 a month in addition to the monthly support. Credit would be given for the $300 already paid. If accepted by noon on January 25, 2022 there would be no costs; if accepted after the noon deadline the mother would be required to pay $2,000 for costs. There was no reference in the father’s Offer to that part of his motion striking certain paragraphs of the mother’s affidavit.

[25] While each party had mixed success on their motion, the mother was the successful party on the most important issue of child support. She is entitled to costs but the amount assessed must take into account the father’s motion success. Her Bill of Costs totaled $7,910 comprising fees ($7,000) and HST ($910). No disbursements were claimed. The Bill detailed the service date, the provider, a description of the work, hourly rate and total. A Statement of Experience and applicable hourly rates for Ms. Langille and her clerk were provided. While the rates are reasonable, the Bill claims for services pre-dating the preparation and service of the mother’s motion, including (for example) services relating to conference events, disclosure and mid-2021 motion events (not the motion before this Court). The actual preparation for the mother’s motion began December 19, 2021 dealing with her Offer to Settle. A total of 14.2 hours was recorded for this motion (including cost submissions), all but a modest amount involving Ms. Langille.

[26] The Father’s Bill of Costs totaled $2,825 comprising fees ($2,500) and HST ($325). Less detailed than the mother’s Bill, it did provide a very general description of the services provided and the hourly rates of Mr. Yaron and his clerk, both reasonable.

[27] Taking into account the parties’ mixed success relating to the several heads of relief each claimed, but the mother’s success on the pivotal support issue, and the considerations set out in s. 24(12) of the Family Law Rules, a fair and reasonable award for costs is $2,500, inclusive of HST. The father shall pay this amount for costs; they shall be enforced as a support Order.

[28] A Support Deduction shall issue.

[29] Counsel may forward an approved draft of the Order and clean copy to the judicial assistant (Laura.gosse@ontario.ca) for the Court’s consideration and timely issuance. The required support Order information can be filed through the court’s portal.

Justice David A. Jarvis

Date: February 3, 2022

[^1]: Paragraph 31 of the father’s affidavit sworn January 20, 2022. [^2]: 2014 ONSC 5366. [^3]: The “last part” is never defined but the court interprets this to mean that part beginning with “… that he received…). [^4]: R.S.C. 1985, c. 3 (2^nd Supp.) as am. [^5]: SOR/97-175 as am.