COURT FILE NO.: FS- 20-20721 DATE: 20230215 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

YASMIN MUNIR RADWAN Applicant – and – FATHI AHMED ALI Respondent

Counsel: Self-represented No-one appearing for the Respondent

HEARD: in writing

Before: Davies, J.

REASONS FOR DECISION

uncontested trial

A. Overview

[1] Ms. Radwan and Mr. Ali separated in April 2017 after less than two years of marriage. They have one child, who is six years old. Their child has lived with Ms. Radwan since she and Mr. Ali separated. Mr. Ali lives in Alberta and has not seen their child for more than five years.

[2] On December 17, 2020, Ms. Radwan filed an Application in the Superior Court of Justice. Mr. Ali did not file an answer and the matter is now proceeding as an uncontested trial.

[3] Ms. Radwan is seeking sole decision-making responsibility for their child, including the right to obtain travel documents for their child without Mr. Ali’s consent and the right to travel with their son without Mr. Ali’s consent. Ms. Radwan is also seeking an order that their son continue to reside primarily with her. Ms. Radwan is seeking both ongoing and retroactive child support. Finally, Ms. Radwan is seeking a divorce.

[4] There are four issues for me to decide:

a. Should Ms. Radwan have sole decision-making responsibility? b. What income should be imputed to Mr. Ali for the purpose of calculating his child support payments? c. Should Mr. Ali be ordered to pay retroactive child support? d. Should a divorce be granted?

[5] For the reasons that follow, I find that it is in their child’s best interests for Ms. Radwan to have sole-decision making responsibility for their child. I also find it is in the best interests of the child to continue to reside primarily with Ms. Radwan. I find that it is appropriate to impute an annual income of $22,500 to Mr. Ali and I order him to pay $197 a month in ongoing child support. I find that it is appropriate to order Mr. Ali to pay retroactive child support for the period between October 1, 2021 and February 1, 2023. The retroactive child support is fixed at $3,152. Finally, Ms. Radwan’s application for a divorce is granted.

B. Should Ms. Radwan have sole decision-making responsibility?

[6] When making any parenting order, including an order about decision-making responsibility, I must consider only what is in the child’s best interests. To decide what is in the child’s best interests, I must consider all the circumstances including

a) the child’s needs, including the need for stability; b) the nature and strength of the child’s relationship with each parent; c) each parent’s willingness and ability to care for and meet the child’s needs; d) each parent’s willingness and ability to support and maintenance of the child’s relationship with the other parent; e) the history of care of the child; and f) any plans for the child’s care: s.16 of the Divorce Act, s.16(1) and 16(3).

[7] Ms. Radwan lives with her son in Toronto. Ms. Radwan’s son is 6 years old and is in school full time. Ms. Radwan’s mother also lives with them and helps with the childcare responsibilities. Ms. Radwan has been the sole caregiver for their son for many years. She has been making all the important decisions about their son’s care since she and Mr. Ali separated.

[8] Mr. Ali, on the other hand, has not been involved in their son’s life in any meaningful way since he and Ms. Radwan separated five years ago. He lives in Edmonton, Alberta. Mr. Ali has had no contact with their child since he left Toronto and has no relationship with their son. There is no evidence that Mr. Ali is willing or able to participate in making important decisions about their son. Mr. Ali did not file a Form 35.1 affidavit so there is no evidence about whether or how he plans to participate in their son’s life in the future.

[9] I am satisfied that it is in their child’s best interests for Ms. Radwan to have sole decision-making responsibility for their son. Granting Ms. Radwan sole decision making will ensure continuity, security and stability for their son. Ms. Radwan has the right to apply for and renew government issued identification and travel documents for their son without Mr. Ali’s consent or signature. She also has the right to right to travel internationally with their son without Mr. Ali’s consent.

[10] Ms. Radwan is willing to facilitate reasonable parenting time for Mr. Ali if he requests it, however, she takes the position that Mr. Ali’s parenting time should be supervised, at least initially. Mr. Ali has not sought a parenting time order. Without an affidavit from Mr. Ali setting out his parenting plan, I am not prepared to make a parenting time order. If Mr. Ali wants parenting time with their son, he is required to file a Motion to Change under Rule 15 of the Family Law Rules to vary my order and must file evidence to support his request.

C. What income should be imputed to Mr. Ali for the purpose of calculating his child support payments?

[11] Mr. Ali did not file an Answer to Ms. Radwan’s application. I, therefore, have no information about his current income. Ms. Radwan asks me to impute to Mr. Ali an annual income of $13,489 for the purpose of calculating his child support payments.

[12] If I impute Mr. Ali with an annual income of $13,489, as Ms. Radwan requests, he would be required to pay just $50 a month in child support.

[13] Ms. Radwan filed Mr. Ali’s Notice of Assessment from Canada Revenue Agency from 2019 to support her request that I impute an income to Mr. Ali. His total income in 2019 was $13,489. Ms. Radwan has asked Mr. Ali for updated income information and he has refused to give it to her.

[14] It is appropriate to impute an income to Mr. Ali for the purpose of calculating his child support obligation. But it is not appropriate to impute to him an income of only $13,489. Mr. Ali is only 39 years old. I have no information to suggest he cannot work full-time or close to full-time. Mr. Ali lives in Edmonton, Alberta. The minimum wage in Alberta is $15 per hour. If Mr. Ali was working even 30 hours a week for 50 weeks a year at a minimum wage job, he would earn $22,500 a year.

[15] If Mr. Ali is unable to work full-time (or close to full-time), he could have responded to Ms. Radwan’s application and file evidence to explain his limitations. He chose not to do so. He has also refused not to give Ms. Radwan financial disclosure of his actual income.

[16] I, therefore, find that it would be appropriate to impute to Mr. Ali a part-time minimum wage income of $22,500 a year. Mr. Ali lives in Alberta so his child support obligation is calculated using the 2017 Federal Child Support Amounts: Simplified Tables: Alberta (which can be found at https://www.justice.gc.ca/eng/fl-df/child-enfant/fcsg-lfpae/2017/pdf/aba.pdf). Mr. Ali shall, therefore, pay Ms. Radwan $197 a month in child support commencing March 1, 2023 based on an imputed income of $22,500 a year.

D. Should Mr. Ali be ordered to pay retroactive child support?

[17] Ms. Radwan is seeking retroactive child support back to April 2017 when she and Mr. Ali separated. When deciding whether to order retroactive child support, I must consider four factors:

a. Why Ms. Radwan delayed seeking child support from Mr. Ali, b. Mr. Ali’s conduct, c. The past and present needs and circumstances of their child, and d. Whether a retroactive award would cause hardship to Mr. Ali: DBS v. SRG, 2006 SCC 37, at paras. 99 - 135.

[18] If retroactive child support is ordered, it should be retroactive to the date Ms. Radwan gave Mr. Ali notice she was seeking child support. Ms. Radwan did not have to start a formal court application against Mr. Ali to give him notice of her claim. She just had to broach the topic of child support with him: DBS v. SRG, at para. 121.

[19] Ms. Radwan filed her application with the court seeking child support on December 17, 2020, more than three years after she and Mr. Ali separated. Ms. Radwan did not serve Mr. Ali until nine months later, on September 8, 2021. In other words, Mr. Ali was served with Ms. Radwan’s application more than four years they separated.

[20] Ms. Radwan did not explain why she waited three years to start her application for child support. Nor did she explain why she waited nine months to serve her application on Mr. Ali. I have no evidence that Ms. Radwan asked Mr. Ali for child support or broached the subject with him before she served her application on him on September 8, 2021. I, therefore, find that Mr. Ali had notice of Ms. Radwan’s requests for child support as of September 8, 2021.

[21] Because Mr. Ali has chosen not to respond to Ms. Radwan’s application, I have no evidence that an order requiring him to pay retroactive child support will cause him hardship.

[22] I find this is an appropriate case to award retroactive child support back to October 1, 2021 when Mr. Ali was served with Ms. Radwan’s application (or 16 months). Mr. Ali has an obligation to support his son but has chosen not to. By failing to pay child support, he has put his own interests ahead of the interests of his son. Mr. Ali has also refused to give Ms. Radwan information about his current income. Mr. Ali should not be allowed to benefit from his efforts to avoid or diminish his child support obligation over the last 16 months: DBS, at para. 107.

[23] Mr. Ali shall pay retroactive child support for the period between October 1, 2021 and February 1, 2023 (16 months) at a rate of $197 per month based on an imputed income of $22,50. The retroactive child support shall be fixed at $3,152.

[24] Mr. Ali is required to give Ms. Radwan information about his actual income on a yearly basis until he is no longer required to pay child support: Federal Child Support Guidelines, s. 25(1). No later than July 1, 2023 and on the first day of July each year thereafter, Mr. Ali shall give Ms. Radwan a copy of his income tax return, notice of assessment, and any other information necessary to determine his income for the previous year in accordance with s. 25 of the Federal Child Support Guidelines. If Mr. Ali has not received his notice of assessment by July 1, he shall give Ms. Radwan a copy of his 2022 Notice of Assessment within 7 days of receiving it from Canada Revenue Agency.

E. Should a divorce be granted?

[25] There are two statutory criteria that must be met before a divorce can be granted. First, one of spouses must have lived in Ontario for a least a year before the divorce application was commenced: Divorce Act, R.S.C. 1985, c. 3, s. 3(1). Second, there must be evidence of a breakdown of the marriage: Divorce Act, s. 8(1). Ms. Radwan can establish the marriage has broken down if she and Mr. Ali have been living “separate and apart for at least one year”: Divorce Act, s. 8(2).

[26] Ms. Radwan and Mr. Ali got married on September 21, 2015 in Ethiopia. They separated in April 2017. Ms. Radwan filed her application for divorce and other relief on December 17, 2020. Ms. Radwan has been living in Toronto with their child since separation in 2017. I am satisfied the statutory conditions for granting a divorce are met.

[27] Before granting a divorce, the Court must also be satisfied that reasonable arrangements are in place to support any child of the marriage: Divorce Act, s. 11(1)(b). Ms. Radwan has been caring for and supporting their child on her own since she and Mr. Ali separated. This order will ensure their son receives the minimum support to which he is entitled from Mr. Ali and that Mr. Ali’s support obligation will be reviewed and adjusted on an annual basis. I am satisfied that reasonable arrangements are in place for the support of Ms. Radwan and Mr. Ali’s son.

[28] Ms. Radwan’s application for divorce is, therefore, granted.

F. Conclusion and Order

[29] Ms. Radwan’s application for a divorce is granted on the terms set out below. Ms. Radwan is not seeking costs of this application and no costs are ordered.

ORDER:

1. Application for divorce is granted.
2. Najih Fathi Ali (DOB July 14, 2016) shall reside with Ms. Radwan.
3. Ms. Radawn shall have sole decision-making responsibility for Najih Fathi Ali.
4. Ms. Radwan may travel, including international travel, with Najih Fathi Ali without Mr. Ali’s consent.
5. Ms. Radwan may apply for and renew any government issued identification or travel documents for Najih Fathi Ali without Mr. Ali’s consent or signature.
6. Mr. Ali shall pay child support in accordance with the 2017 Federal Child Support Amounts: Simplified Tables: Alberta of Federal Child Support Guidelines. Starting March 1, 2023 and on the first day of each month thereafter, Mr. Ali shall pay child support for Najih Fathi Ali (DOB July 14, 2016) in the amount of $197 per month based on an imputed income of $22,500 per year.
7. For the period of October 1, 2021 to February 1, 2023, Mr. Ali shall pay retroactive child support in the amount fixed at $3,152 based on an imputed income of $22,500 per year.
8. On July 1, 2023 and on the first day of July each year for as long as Mr. Ali is required to pay child support, Mr. Ali shall give Ms. Radwan a copy of his income tax return, notice of assessment, and any other information necessary to determine his income for the previous year in accordance with s. 25 of the Federal Child Support Guidelines. If Mr. Ali has not received his notice of assessment by July 1, he shall give Ms. Radwan a copy of his 2022 Notice of Assessment within 7 days of receiving it from Canada Revenue Agency.
9. A Support Deduction Order shall issue.
10. Unless the Support Order and Support Deduction Order is withdrawn from the Office of the Director of the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the Support Order shall be paid to the Director, who shall pay them to Ms. Radwan.
11. If the parties agree to opt out of the Family Responsibility Office at any time, they are both required to file with the Office of the Director of the Family Responsibility Office a separate written request consenting to the withdrawal of the Support Order and the Support Deduction Order.
12. This order shall bear post judgment interest in accordance with s. 129 of the Courts of Justice Act, R.S.O. 1900, Chap C.43.
13. Ms. Radwan shall prepare a draft order in accordance with this decision for my review and signature. Ms. Radwan may send the draft or to my assistant, Alison Roberts (alison.roberts@ontario.ca).

Davies, J. Released: February 15, 2023