Court File and Parties

Court File No.: FS-16-20935 Date: 2023-03-21 Superior Court of Justice – Ontario

Re: Ramin Amid, Applicant And: Jacqueline Jones, Respondent

Before: L. Brownstone J.

Counsel: Elliot Birnboim and Hailey E. Corrigan, for the Applicant Barbara Puckering, for the Respondent

Heard: November 21-26, and December 15, 2022

[1] The applicant, Ramin Amid, and respondent, Jacqueline Jones, had a relationship from 2011 to 2014 or 2015, but never co-habited. They have one child together, “S”, who was born in 2014. S has always resided primarily with the mother, but the father has regular parenting time.

[2] The central issue in this trial is child support, namely what is the amount of child support Ramin should be paying, and as of what date? To determine this issue, I need to determine Ramin’s income, whether income should be imputed to Ramin, and if so, in what amount. This requires a review of Ramin’s relationship with his family’s real estate business, and his failure to disclose documents he was ordered to produce.

[3] The ancillary issues relate to s. 7 expenses – whether the expenses Jacqueline claims are properly s. 7 expenses, what the amount of those expenses are, how they should be shared, and whether there are amounts owing between the parties in respect of s. 7 expenses paid by each.

[4] The final issue is costs relating to the parenting order. On October 3, 2022, the parties entered into a consent order respecting parenting time. The costs were reserved to me as trial judge.

[5] I deal with the issues in the following order.

Issue one: What is Ramin’s income for the purpose of determining child support?

Issue two: Is retroactive child support owing?

Issue three: Does Ramin owe Jacqueline for section 7 expenses? If so, for which expenses and in which amounts? How are section 7 expenses to be treated on an ongoing basis?

Issue four: Should costs of the parenting order be awarded, and if so, in what amount and to which party?

Issue one: What is Ramin’s income for the purpose of determining child support?

1) Position of the parties

[6] Ramin states that he is a T4 employee and his income is readily and fairly discernible from his income tax returns. Jacqueline argues that income should be imputed to Ramin based on significant benefits he receives from the family business, including free luxury accommodation. She requests that the court impute income to him based on various mortgage payments being made either by him or as a gift from the family.

2) Governing legislation and principles regarding income imputation

[7] Under s. 31(1) of the Family Law Act, RSO 1990, c. F.3, parents have an obligation to support their children. Section 33 provides the court with jurisdiction to make orders requiring parents to provide support in accordance with the Child Support Guidelines O Reg 391/97. Section 34 provides the court with the authority to make various kinds of orders.

[8] The starting point for determining a parent’s annual income is the total income in the party’s Income Tax Return (s. 16 Guidelines). However, that is not the end of the inquiry. Section 19 of the Guidelines lists non-exhaustive circumstances in which the court may impute income to a payor as it considers appropriate. The applicant relies specifically on ss. 19(1)(d) and (f) of the Guidelines, which permit imputation where it appears that income has been diverted which would affect the level of child support to be determined, or where the parent or spouse has failed to provide income information when under a legal obligation to do so. As the Court of Appeal for Ontario held in Bak v. Dobell, 2007 ONCA 304, 86 O.R. (3d) 196 at para. 36: “When considering whether a circumstance is an appropriate one in which to impute income, a court will bear in mind the objectives of the Guidelines to establish fair support based on the means of the parents in an objective manner that reduces conflict, ensures consistency and encourages resolution.”

[9] The exercise of imputing income is to be done in order to come to a fair and reasonable assessment of income, not to punish the payor. Cormier v. Vienneau, 2022 NSSC 98 at para. 26. It is a fact-specific and discretionary exercise. Of course, there has to be some evidence grounding the imputation figure. The court cannot select an arbitrary figure (Drygala v. Pauli (2002), 61 O.R. (3d) 711 at para. 44) The onus is on the party requesting that income be imputed to establish an evidentiary basis for the finding: Homsi v. Zaya, 2009 ONCA 322 at para 28.

[10] Gifts are not included in income imputation as a matter of course, but may be included in certain circumstances. Factors to consider when determining whether to include the receipt of unusual gifts in income were set out by the Court of Appeal in Bak v. Dobell at para. 75 as follows:

… Those factors will include the regularity of the gifts; the duration of their receipt; whether the gifts were part of the family's income during cohabitation that entrenched a particular lifestyle; the circumstances of the gifts that earmark them as exceptional; whether the gifts do more than provide a basic standard of living; the income generated by the gifts in proportion to the payor's entire income; whether they are paid to support an adult child through a crisis or period of disability; whether the gifts are likely to continue; and the true purpose and nature of the gifts.

[11] Housing benefits may fall into the class of gifts constituting income Malkov v. Stovichek-Malkov, 2017 ONSC 6822 paras. 69-72, appeal dismissed 2018 ONCA 620, 15 R.F.L. (8th) 255.

3) Facts relating to imputation of income

[12] In brief, Jacqueline argues that Ramin receives significant benefits and gifts from his family’s real estate business, that he has failed to produce court-ordered disclosure, and that income should be imputed to him. Ramin argues that he is a T4 employee who has been voluntarily paying support and will continue to do so. He argues that Jacqueline is seeking a wealth transfer in the guise of child support, that he has no beneficial interest in the family business or properties to which he holds legal title, and receives no benefit from them.

[13] Ramin holds the title to millions of dollars’ worth of property, yet claims his annual income since 2015 has ranged from less than $40,000 in 2015 to a high of $127,000.00 in 2019. Ramin claims that he is a bare trustee for the properties to which he holds title, and the properties are in fact beneficially owned and completely financed by his brother Babak. Ramin claims little involvement with the family business. Yet, I find that Ramin has involvement with the family business, which has led his brother Babak to provide him with the benefit of free luxury accommodation for all of the years since S was born (and before). I find that, given Ramin’s involvement in the business and given the historical arrangement between Ramin and Babak and the businesses, the provision of luxury accommodation is very likely to continue. I set out below my findings both on Ramin’s involvement in the family business, and the benefits he has received. I find the value of the gifts or benefits, in the form of free housing, should be imputed to Ramin as income.

i) Ramin’s family

[14] Ramin’s extended family, principally his brother Babak Amid, runs a real estate development business. In 1983, Babak came to Canada by way of Turkey after completing high school in Iran. He started working in the parking lot business, quickly moving from attendant to manager. After several years, he purchased two parking lots in downtown Toronto, which were ultimately developed into residential properties. This is how he gained entry to and experience in the real estate development business. Babak has, through impressive hard work, built and gained interests in several successful businesses. The role of Ramin in two of the business ventures, referred to as “Kingsdale” and “Stadacona”, is in issue.

[15] Ramin is a mechanical engineer. He came to Canada in 1990 from Iran by way of Turkey, where he completed a bachelor’s degree in mechanical engineering. He lived with Babak and their younger brother in a two-bedroom townhome owned by Babak. Their mother soon joined them and for a time the family lived together in the two-bedroom townhome. As they needed more space, Babak sold the townhome and purchased a property for the four of them to live in together, which they did for about 10 years. Ultimately, Babak and his wife moved into their own home. Ramin continued to live with his mother in different properties.

ii) Ramin’s work history

[16] Ramin came to Canada in 1990 and worked in the parking lots in one of Babak’s operations. In 2009, he completed his PhD at McMaster University. He worked as a research assistant for a period of time, and then worked for Copperleaf Window and Doors, a company in which Babak had an interest, delivering materials for them. In 2015 he obtained his first teaching position at Sheridan College in Brampton. He now teaches at both Sheridan and Centennial Colleges in non-tenured positions, and states that while he gets paid for about twenty classroom teaching hours weekly, he is working over seventy hours.

[17] Jacqueline testified that early in their relationship, Ramin was working for his brother’s companies, assisting with the building of the Kingsdale development. She testified that she occasionally would attend the work sites at Kingsdale and Stadacona to see Ramin and drop off food and water. Ramin’s LinkedIn account and Facebook page listed him as a structural engineer for Kingsdale. His LinkedIn page from 2022 listed him as having this position from 2008 forward, with no end date, although it also did not list his teaching positions which he commenced in 2015. The last obvious update to that page had been in 2012.

[18] Ramin’s pleading states that he worked part-time for Kingsdale while he was doing his PhD; he described himself as a part-time consultant engineer. In his evidence at trial, he stated that his LinkedIn page and Facebook pages read as they did because he was required to have a certain number of hours of work to obtain his engineering license, and without his license he could not teach.

[19] Babak acknowledged that he asked Ramin questions regarding structural engineering on the Kingsdale project, but stated that Ramin was not the project’s main structural engineer. Babak denied being aware that Ramin had a LinkedIn page where he listed himself as a structural engineer for Kingsdale Bayview and, when asked if it was accurate, stated “I wouldn’t know”. In re-examination, he claimed that Ramin provided five to ten hours of advice over the 18 months of the life of the project. Ramin’s own estimates of the hours he spent advising Kingsdale fluctuated. His final estimate appeared to be that he worked there for ten to fifteen hours over a period of four to five months. Although he acknowledged that he needed work experience to satisfy the licensing requirements, he maintained that the licensing body was concerned solely with duration of work, not hours.

[20] With respect to Stadacona, Ramin and Babak acknowledged that Ramin had completed a safety course because at one point, Stadacona had received a citation and was required to have a health and safety inspector at a job site. Ramin took the health and safety course on behalf of the business. Babak stated that Ramin did a single two-hour course only because Babak was unable to do it, and that Ramin did not perform any work in this regard for the company.

iii) Credibility

[21] Assessing credibility is a complex task. It requires the court to consider many factors, and to do its best to explain “the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events" R. v. Gagnon, 2006 SCC 17 at para. 20. Nor is credibility an all-or-nothing assessment. The court may accept some, none or all of a witness’ evidence: R. v. D.R., [1996] 2 S.C.R. 291 at paragraph 93. While the assessment of credibility is a “holistic undertaking, incapable of precise formulation” (Dunford v Hamel, [2018] ONSC 3427 at para 20), in the 2021 decision of McBennett v Danis, 2021 ONSC 3610 at para 42 Chappel J. lists various factors to be considered in undertaking the assessment, which include the following:

a. inconsistencies in the evidence, which may exist between a witness’ evidence and various other things – the evidence of other credible witnesses, the documentary evidence, or the witness’ previous evidence;

b. whether a witness has an interest in the outcome or is personally connected to a party;

c. whether a witness has a motive to deceive

d. whether the evidence is inherently improbable and implausible? That is is it “in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions?" (Faryna v. Chorny, [1952] 2 DLR 354 at p. 357).

e. Whether a witness is straightforward or “evasive, strategic, hesitant or biased”.

f. Whether a witness is able to make concessions, or gives self-serving evidence.

[22] I do not find Babak’s or Amid’s evidence on the issue of Ramin’s work for Kingsdale and Stadacona credible for the following reasons:

a. I do not accept, as a matter of common sense, that the engineering licensing authority would accept less than one hour of work per week of work experience at Kingsdale as equivalent to full-time work, and that it was concerned only with duration of the work, not hours, as Ramin testified. I find that this evidence is not “in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions”.

b. Similarly, it defies common sense that Ramin would take a health and safety course in response to a citation received at the Stadacona job site, and then provide no health and safety services to Stadacona;

c. Both Ramin’s and Babak’s evidence fluctuated when asked how much time Ramin spent providing engineering consultation services to Kingsdale;

d. Both Babak and Ramin have an interest in minimizing the services Ramin provided to the business;

e. Babak was evasive and somewhat angry when answering these questions, particularly with respect to Ramin’s involvement at Kingsdale.

I find that Ramin provided engineering consultation services to Kingsdale and health and safety oversight to Stadacona, A clear picture emerges that Ramin would pitch in when and as needed for Babak’s projects. I find that he was provided with benefits from Babak, in the form of housing, as a result of his provision of services to the corporations.

iv) Financial dealings between Ramin and the family business

[23] Transactions with respect to several properties are in issue, as are the financial arrangements between Ramin, Babak and the family business. While this is not a property case, the property dealings are relevant to an assessment of the benefits Ramin receives for what he does, or has done, for the businesses.

a) 440 Empress and 3000 Bayview

[24] The Kingsdale development, in the Bayview/Empress/Kingsdale area, comprised a series of townhomes and at least one detached home. Ramin and his mother lived at 440 Empress, which was part of the Kingsdale development. Babak and his wife lived at 436 Empress, the detached home, which was also part of the Kingsdale development. In 2021, Babak moved to 121 Citation Drive, where he lives with his family, 440 Empress was sold and Ramin and his mother moved into the detached property at 436 Empress.

[25] Ramin held legal title to two properties in the Kingsdale development, 440 Empress and 3000 Bayview, from the time construction was completed in 2010 until each property was sold - 440 Empress in 2021 and 3000 Bayview in 2017. Ramin and Babak both testified that Ramin contributed nothing to these home purchases. Babak indicated he would place properties in the names of Ramin, his wife and his mother to guard against future economic turbulence. On February 16, 2016, days after Ramin had sworn a financial statement in these proceedings indicating he had no interest in the homes in question, declarations of trust were executed in respect of both properties, indicating that Ramin is a bare trustee for each. The documents stated that registered ownership was changed from Kingsdale to Ramin (which had occurred upon completion of construction), but that the beneficial owner had been and remains Babak. All rental income from 3000 Bayview was paid to Kingsdale or Babak, not Ramin. Ramin was to pay no rent for residing at 440 Empress. Babak claimed not to know why the trust documents were created at that time but vehemently denied it had anything to do with the litigation and became angry when that suggestion was put to him.

[26] The November 2020 disclosure statement for the mortgage loan for 440 Empress lists Ramin as the borrower, because his name was on title. That property was sold in 2021. The proceeds are shown as being paid to Ramin. Babak testified that the funds came to his account, but he did not know which account. Ramin and Babak also testified that Ramin did not receive the proceeds of sale from 3000 Bayview.

b) 121 Citation Drive

[27] Ramin also holds legal title to 121 Citation Drive. Babak testified that he lives in this home with his family. When he purchased it in 2018, he was advised to put title to 121 Citation Drive in Ramin’s name. A mortgage on that property of $3,100,000 was approved in February 2021. The funds to pay the mortgage come from Ramin’s account. According to Babak, he transfers funds to Ramin every month to pay the mortgage of $10,521, and Ramin had nothing to do with the financing transactions in respect of 121 Citation Drive. Documents were produced shortly before trial that seem to indicate that one of Babak’s corporations, of which he was the sole director and shareholder, provided the funds for the purchase. The bank draft provided to the bank, however, was in Ramin’s name. Babak did not directly answer the question as to whether he told the lender that the million-dollar down payment actually came from him, not Ramin. He first stated that he did not deal with the bank, and then stated that Ramin’s name was on the bank draft, so the bank would have seen that, but stated that it is normal “to put anyone’s name” on a bank draft.

c) 436 Empress Ave.

[28] Ramin and his mother have lived at 436 Empress Ave. since Babak moved out in 2021. A rental agreement was produced for 436 Empress Ave., ostensibly to begin Sept. 1, 2020, under which Ramin was to pay monthly rent of $2,000.00. However, Babak lived in 436 Empress until the summer of 2021. Babak claimed that he needed this agreement to assist with net worth statements he was providing for various projects. While Ramin and Babak testified that Ramin has been unable to pay rent due to these legal proceedings, the evidence is clear that no rent has been paid by Ramin, at any of the properties. He may have contributed to household expenses at various of the properties, but he has never paid rent. I give no weight to the rental agreement, ostensibly prepared in 2020.

d) The financial arrangements

[29] Ramin produced some banking documents, many on the eve of trial. Some accounts are joint, between Ramin, Babak, their mother and Babak’s wife. Some are personal to Ramin. Ramin has access to a line of credit tied to at least one joint account. While legally entitled to draw on that line of credit, Babak denied that Ramin had his authority to do so. Large sums of money flow between accounts. A Range Rover, once Ramin’s, became the mother’s. According to Ramin, he could no longer afford the Range Rover lease payments once his child was born, but continued to pay for it from cash his mother gave him to make the lease payments. It is clear that the financial affairs of the family are enmeshed and comingled. Funds flow freely between accounts. Neither Babak nor Amid could provide any principled or detailed explanations for the flowing of the funds.

v. Disclosure

[30] Section 21 of the Guidelines requires parents to make financial disclosure; section 22 sets out steps that may be taken where a parent fails to comply with disclosure obligations, and section 23 permits the court to draw an adverse inference against and impute income to a party who fails to comply with their disclosure obligations.

[31] The respondent failed to make financial disclosure even when ordered by the Court. “The most basic obligation in family law is the duty to disclose financial information”: Roberts v. Roberts, 2015 ONCA 450 at para. 11. Failure to provide disclosure has repeatedly been described as “the cancer of family law litigation”: See Cunha v. Cunha (1994), 99 B.C.L.R. (2d) 93 (S.C.), at para. 9, quoted in Leskun v. Leskun, [2006] 1 S.C.R. 920, 2006 SCC 25, at para. 34, Michel v. Graydon, 2020 SCC 24 at para. 33. As noted by the Court of Appeal for Ontario in Leitch v. Novac, 150 OR (3d) 587, 2020 ONCA 257 at paras. 44-45:

[44] As the Supreme Court suggested in Leskun v. Leskun, [2006] 1 S.C.R. 920, [2006] S.C.J. No. 25, 2006 SCC 25, at para. 34, nondisclosure is the cancer of family law. This is an apt metaphor. Nondisclosure metastasizes and impacts all participants in the family law process. Lawyers for recipients cannot adequately advise their clients, while lawyers for payors become unwitting participants in a fraud on the court. Judges cannot correctly guide the parties to a fair resolution at family law conferences and cannot make a proper decision at trial. Payees are forced to accept an arbitrary amount of support unilaterally determined by the payor. Children must make do with less. All this to avoid legal obligations, which have been calculated to be a fair quantification of the payor's required financial contribution. In sum, nondisclosure is antithetical to the policy animating the family law regime and to the processes that have been carefully designed to achieve those policy goals.

[45] There is a related malady that often works hand-in-hand with nondisclosure to deny justice in family law proceedings. The problem is what I will call "invisible litigants". These are family members or friends of a family law litigant who insert themselves into the litigation process. They go beyond providing emotional support during a difficult time to become active participants in the litigation. Usually, their intentions are good, and their interference makes no difference in the ultimate result. However, sometimes they introduce or reinforce a win-at-all-costs litigation mentality. These invisible litigants are willing to break both the spirit and letter of the family law legislation to achieve their desired result, including by facilitating the deliberate hiding of assets or income.

[32] There are several options available to the court in the face of failure to comply with disclosure obligations and orders. Income has been imputed based on inconsistent or deficient financial disclosure (Whelan v. O’Connor (2006), 28 R.F.L. (6th) 433 at para. 29). As the Court of Appeal has held in Mullin v. Sherlock, 19 R.F.L. (8th) 1, 2018 ONCA 1063 at para. 45, under Rule 1(8), once the court is satisfied there has been non-compliance, the court should consider the following in assessing the most appropriate remedy:

• the relevance of the non-disclosure, including its significance in hindering the resolution of issues in dispute;

• the context and complexity of the issues in dispute, understanding that an uncomplicated case should have little tolerance for non-disclosure, whereas a case involving extensive valuation of assets may permit some reasonable delay in responsiveness;

• the extensiveness of existing disclosure;

• the seriousness of efforts made to disclose, and the explanations offered by a defaulting party for the inadequate or non-disclosure; and

• any other relevant factors.

[33] An adverse inference may be the appropriate remedy, and the motion judge may memorialize the invitation to seek an adverse inference in her reasons. (Mullin at para. 46). In this case, the respondent made many attempts to obtain proper disclosure from the applicant. Several court orders were made. The applicant did not fully comply with the disclosure orders.

[34] On August, 2022, Nakonechny, J. ordered Ramin to answer questions and produce documentation relating to assets and liabilities including mortgage applications, bank statements, cheques, credit card statements, and reporting letters.

[35] On October 3, 2022, Kristjanson, J. ordered that if Ramin failed to comply with the August 25, 2022 Order by October 17, 2022, the application would be struck and the respondent could proceed to an undefended trial. Further disclosure was made on October 17 and 27, 2022. After October 27, 2022 the main missing documents were applications for mortgage financing applied for from July 2014 to date for properties registered in Ramin’s name, and copies of solicitors’ reporting letters for properties registered in Ramin’s name, including 121 Citation Dr. and 440 Empress Ave, from July 2014 to date.

[36] On November 15, 2022, less than a week before trial, Kristjanson J. heard a motion seeking to strike Ramin’s pleading given his failure to comply with the orders. Kristjanson J. stated as follows:

[11] Importantly, the applicant claims income of between about 70,000 and 106,000 in the period after the child's birth - yet was able to obtain a mortgage in his own name from Street Capital in the amount of $763,750 re 440 Empress Ave: and from the Bank of Nova Scotia in the amount of $1,922,500, and from CIBC in the amount of $3,100,000, both for 121 Citation Dr. It defies belief that the applicant could obtain a mortgage of over $3 million on an income of just over $100,000.00 for example. The applications would include net worth statements of assets, liabilities, and income. The applicant made no attempt to obtain a copy of his application from these institutions.

[12] The applicant purchased 121 Citation Drive by providing a bank draft of $1,000,000 and obtaining a Bank of Nova Scotia mortgage in the amount of $1,922,500. The applicant currently holds legal title to 121 Citation Drive. He replaced the Bank of Nova Scotia mortgage with a CIBC mortgage in the amount of $3,100,000. The applicant has been paying the monthly mortgage amount of $10,521 out of his personal chequing account since April 2021. The mortgage approval letter confirms that the approval is " based on the information you provided in your recent application. " That is the application he did not produce in the face of two court orders and did not take the appropriate steps to produce. The applicant is the legal owner of 121 Citation Drive, his brother's residence and claims related expenses on his tax return. According to his 2021 tax return, he paid $12,896 in property taxes, and affirmed that 121 Citation Dr. is his residence.

[37] The original closing documents for 440 Empress and 3000 Bayview were, according to the real estate lawyer, destroyed since they were more than 10 years old. Several court endorsements pointed out that there were transactions in respect of these properties that were less than ten years old, and in respect to which disclosure had been ordered. When Babak was asked why the reporting letters were not produced, and whether he made further inquiries in the face of the court pointing out the ten-year excuse did not apply, he answered that maybe the lawyer did not understand what transaction was referred to. I do not accept this explanation. It was not a complicated request to make. There is no reason why a proper request would be misunderstood.

[38] On the Friday before trial, Ramin produced further documents, including redacted bank statements. The mortgage application documents and reporting letters were never produced. Babak and Ramin each claimed they had been unable to obtain the mortgage documents.

[39] Their evidence on this was evasive and contradictory.

[40] Babak stated that he had no objection to Ramin producing the documents if he could obtain them. He also stated that he is the source of documents, and did not have the applications for mortgage financing. Babak was consistently evasive when asked about the mortgage applications for the properties that were in Ramin’s name, claiming that he ordered them but was not involved with them. He first claimed he could not remember who he was dealing with at the time of the mortgages being ordered. Then he said that he made a telephone call to a person whose number had changed. When asked if he went to CIBC to get a copy of the mortgage application, he said no, because it was not his, although he might have said he would get it. He did not go to the bank or write the bank. He claimed that he might have seen the October 3, 2022 order requiring this information, but could not recall. He then said he did not understand how Ramin could obtain the mortgage applications, since he did not order them. Ramin said he could not get the applications because he was not the one who made the applications to begin with. He claimed the properties had nothing to do with him, and that it was all his brother’s business. He claimed to have gone to talk to someone, but was unsuccessful. In essence, each brother claimed the other brother would have had to obtain the documents.

[41] Presumably, those documents would have shown an income for Ramin that would justify lending him these large sums of money. Babak disputes this, stating that he had enough equity in the properties and other properties that the banks were grateful for his business.

[42] In accordance with Mullin, Kristjanson J. memorialized the following in her motion endorsement of November 16, 2022: The respondent seeks: “That the following adverse inference be drawn from the applicant's failure to disclose, that the applicant's mortgage payment of $10,521 which the applicant swears is given to him by his brother be included as non taxable income and grossed up for the purposes of child support.”

[43] I find that proper and genuine efforts were not made to obtain the disclosure that had been repeatedly ordered by the court and that an adverse inference should be drawn against Ramin. As will be explained below, I reach a different conclusion on the dollar figure.

[44] As outlined above, there were significant credibility issues with Babak’s evidence on the financial issues. Ramin also gave some evidence that was not capable of belief. Both brothers displayed a pattern of providing answers, whether to the court, or the bank, or the engineering regulator, that were convenient in the moment. I find their evidence on the financial issues not credible for the following reasons:

• Babak was in charge of financing and dealing with the lawyers. However, he was unable to obtain the documents ordered to be produced, or to assist Ramin with obtaining the documents;

• The evidence of both Babak and Ramin on the efforts to obtain the mortgage documents was contradictory, evasive and self-serving;

• Babak claimed the lawyers may not have understood the request to produce closing documents from 2014 onward. This evidence defies common sense;

• Babak “orders” the mortgages, but is not responsible for what is said on mortgage applications;

• Ramin did or did not provide services to Kingsdale and Stadacona, depending on the audience;

• Ramin claims to have no interest in Citation Drive, but claims to Revenue Canada that he lives there and claims deductions in respect of home office use of the property;

• Babak is clearly a skilled and astute business person, who knew about legal and accounting issues when it suited him, but stated he would have to ask the lawyers or accountants when it suited him;

• Cars appear to have been purchased shortly after 440 Empress, which was in Ramin’s name, was sold, although the brothers claim this was coincidence, and that funds from the sale did not support the purchase of the cars;

• Babak’s memory was very clear on many events, however distant, but unclear on issues that were important to the proceedings. For example, he remembered with clarity the purchase price of a townhouse from decades ago, but claims not to remember if he saw a court order requiring production of documents in this litigation, in which he has been closely involved, that was about six weeks old;

• The financial affairs of the family are clearly enmeshed. Both Babak and Ramin have an interest in minimizing Ramin’s contributions to and benefits from the business.

[45] I find Jacqueline to be a generally credible witness. She was genuine and forthright in her answers. I do not, however, accept all of her evidence. She is a concerned, devoted and protective mother, and there were times that her concern and protection led her to make decisions on her own that she claimed Ramin agreed to. These will be referred to in the sections on retroactive support and section 7 expenses below.

e) Does Ramin receive a gift of housing from his family? If so, can the gift be quantified and should it be imputed to Ramin as income?

[46] Jacqueline’s position is that Ramin receives the benefit from the family for whatever he does or has done for the business, which includes the following: providing engineering advice during the development phase of Kingsdale; acting as the health and safety inspector for Stadacona; allowing himself to be used to obtain mortgages and other financing on properties, including the property lived in by his brother, and participating in joint lines of credit. Jacqueline argues that it is very clear that the family has benefited greatly by what he has done, and that he has been rewarded by the family.

[47] She asks that from 2014 to 2020, when there was a mortgage of over $700,000 at 440 Empress where Ramin resided, income of $3000 per month be imputed to him, grossed up. She argues that even if it is a gift, in accordance with the factors the court is to consider as outlined above, it is a significant portion of his overall income and there is reliance on it, it is of a regular and ongoing nature, and likely that it will continue in future in accordance with the Whelan and Bak cases. She argues that the value of what he receives is the value of the mortgage payments and that an adverse inference should be drawn from the failure to request, in any real sense, a copy of the mortgage document.

[48] As noted above, she also seeks an adverse inference from Ramin’s failure to comply with court-ordered disclosure, that his mortgage payment of $10,521 in respect of Citation Drive be included as non-taxable income and grossed up for the purpose of child support.

[49] In her draft order, she seeks the following: For the purposes of calculating child support, retrospectively, currently and prospectively, in addition to his income pursuant to the Child Support Guidelines, the Applicant shall be imputed the grossed-up value of the non-taxable income of $11,978/month.

[50] Ramin argues that it is an extraordinary proposition that gift income should be imputed to him. He argues that such imputation is reserved for cases where someone is underemployed, or where the lifestyle during cohabitation is built around gifts, so that the drop in the standard of living would be to the detriment of the child. He argues that none of this applies here as there is no underemployment, there was no co-habitation, and there is no disparity in lifestyle between the two homes. Jacqueline disagrees with this last statement.

[51] I do not see any principled reason that the imputation of gifts be limited to cases of co-habitation. The only issue is the child support owed based on the parent’s income. I find that Ramin clearly obtains the gift of free accommodation, in a four-bedroom, multi-bathroom detached home in Toronto, that he relies on that gift, it has been a regular and ongoing gift for decades (in different locations), and it is very likely that it will continue in the future. As indicated, I do not accept that the rental agreement seemingly prepared in 2020 was prepared for the purpose of seeking rent from Ramin.

[52] The $10,521.00 sought to be imputed as monthly income is the mortgage payment for Citation Drive that is paid from Ramin’s bank account. Aside from some tax relief, Ramin does not directly benefit from this payment and it is difficult to determine where the funds that pay that mortgage emanate from. 436 Empress is a more expensive property than 440 Empress, and less expensive than 121 Citation Drive. I fix the value of the ongoing gift received by Ramin at $6500.00 per month from September 2021 forward (when he started living at 436 Empress). A more precise number could be arrived at had Ramin made the disclosure required. The mortgage applications would have shown his assets, liabilities and, importantly, his income as told to the bank to obtain the significant financing that he did. The information he provided in order to convince the banks that he was able to service mortgages that total well into seven figures is unavailable to the court. I reject his submission that the court would be “throwing darts at a dartboard” to arrive at an imputation figure. Had he provided court-ordered disclosure the court would have been in a better position to provide exact numbers. It does not lie in his mouth to now argue that due to his non-disclosure, the court has insufficient evidence to support a dollar amount for imputation.

[53] By virtue of both the adverse inference to be drawn from the repeated non-compliance with court ordered disclosure of centrally important documents, and the gift analysis set out above, Ramin’s income shall therefore be imputed to contain, on top of his employment income, an additional $3000 per month of non-taxable income grossed up until September 2021, and $6500 per month of non-taxable income grossed up thereafter.

Issue two: Is retroactive child support owing?

[54] No child support was paid for the first year after S’s birth. As of July 2015, Ramin paid support, although the parties disagree on whether he overpaid or underpaid support at various points. Jacqueline claims support owing as of S’s birth in 2014. She formally sought child support retroactive to the date of the child’s birth in her Answer in July 2016. Ramin claims retroactive support is not payable. On April 22nd 2020, Justice Paisley issued a consent order setting out a without prejudice temporary order for child support and section 7 expenses and making various orders about travel and exchange of documents. Retroactive support was reserved to a further hearing or motion.

[55] For the reasons that follow, I find that child support should be paid from the date of S’s birth, and the determination of the amounts owing will stem from Ramin’s income as imputed in accordance with this decision.

[56] In considering whether to order retroactive child support, “unreasonable delay by the recipient parent in seeking an increase in support will militate against a retroactive award, while blameworthy conduct by the payor parent will have the opposite effect.” D.B.S. v. S.R.G, [2006] 2 SCR 231, 2006 SCC 37 at para. 5. The court is also to consider the needs and circumstances of the child and the hardship to the payor of a retroactive award. Retroactive child support must not amount to a wealth transfer: Walsh v. Walsh (2004), 69 OR (3d) 577 (CA) at para. 16. Child support is, of course, the right of a child and is an obligation that exists regardless of the commencement of any proceedings to enforce it. (Michel v. Graydon, para. 41)

[57] In the summer of 2015, Ramin started paying child support. Jacqueline's paid maternity leave was ending, and there is conflicting evidence about what occurred. According to Jacqueline, the parties agreed that she would delay her return to work, and that Ramin would pay her $1300 per month, which was what Babak paid his nanny. Ramin denies such an arrangement. His view was that the respondent did not wish to return to work, and wished to be paid for staying at home. He provided child support beginning in July, 2015. The amounts fluctuated and the parties disagree on the amount of arrears owing. Jacqueline states that Ramin was underpaying for a period of time, as the parties had an agreement that differed from the Guidelines amount. Both parties agree there was a period when Ramin was underpaying. Ramin states that there were periods of overpayment.

[58] I do not accept Jacqueline’s evidence that Ramin agreed to pay her $1300 per month to stay home with the child and then reneged on that agreement. I find Ramin’s version, namely that Jacqueline wished to stay home and proposed this arrangement to Ramin, far more likely and credible, and more consistent with the other evidence in the case, Jacqueline clearly wanted to stay home for longer than her subsidized maternity leave, and Ramin had not been paying child support at that time. However, Ramin had an obligation to support his child from birth and there were many periods where he failed to do so. Child support is required even if the child’s necessities are being met without it: D.B.S. at paras. 39-40.

[59] Taking into account the child’s needs and circumstances and the difficulties in obtaining disclosure that would have allowed a proper support calculation, and Ramin’s obligation to pay support since the child’s birth, I find that it is fair and just in these circumstances to order child support to be paid, commencing from the date of birth of the child.

[60] Under the order of Justice Chiappetta dated August 26, 2016, the applicant was to pay the upfront cost of closed mediation and then receive a credit of half the cost against future child support. The amount of $5,937.00 remains to be credited to Ramin out of the retroactive child support payments owing.

Issue three: Does Ramin owe Jacqueline for section 7 expenses? If so, for which expenses and in which amounts? How are section 7 expenses to be treated on an ongoing basis?

[61] Special or extraordinary expenses may be ordered to be paid, taking into account the necessity and reasonableness of the expense in relation to the means of the parents or spouses and the other factors set out in the Guidelines.

[62] Ramin claims that the expenses claimed by Jacqueline are neither special nor extraordinary, and that the regular child support payments should cover those expenses. Jacqueline disagrees and claims Ramin owes her for various section 7 expenses incurred.

[63] Jacqueline signed S up for local dance class, swimming and skating lessons and camps. The parties did not, during the time Jacqueline was home with S, incur a daycare expense. Jacqueline also claimed items she purchased such as masks and skates as s. 7 expenses, as well as medical premium payments and medical and dental expenses not covered by insurance.

[64] At one time, Jacqueline registered the child for a community centre program during Ramin’s parenting time. Ramin, understandably, did not wish to spend his limited parenting time with the child at this program. This is an example of Jacqueline asserting the parties had an agreement about things, in this case activities, when they did not. Ramin states that he now registers the child for community centre programs during his parenting time.

[65] I find that, given the nature of the regular extracurricular expenses, and the amounts of the expenses, which range from $15 per month for some community centre programs up to $170.00 per month for skating, and considering the expenses in relation to the income and child support to be provided, these expenses are not extraordinary: A.E v. A.E., 2021 ONSC 8189 at para 377. The summer camp fees, however, are permissible section 7 expenses. They are as follows: $638.00 in 2018, $1126.00 in 2019, $726.00 in 2021 and $918.00 in 2022.

[66] Jacqueline also claimed expenses for health premium expenses incurred while she was on unpaid maternity leave. She did not provide evidence as to the portion of that expense that was for her own insurance and the portion that was for S. I therefore permit one-half of those expenses as s. 7 expenses, which amounts are as follows: $1170.10 for 2015, $2808.24 for 2016, and $234.02 for 2017. The evidence also demonstrates that in 2020 and 2021, S’s health and dental expenses, including therapy expenses, exceeded $100 annually and are properly claimed as section 7 expenses in the amount of $408.60 in 2020 and $745.77 in 2022.

[67] Jacqueline’s income is as follows: 2015 - $19,514.00; 2016 – 1,000.00; 2017 - $47,717.00; 2018 - $52,063.00; 2019 - $52, 789.00, 2020 - $36,091.00 2021- $45,139.00; 2022- $45,139.00. For purposes of apportioning the sharing of those expenses, the parties shall use those figures, and Ramin’s income figures as calculated in accordance with paragraph 53 above. The amounts owing by Ramin shall be offset against the amounts he has paid under the order of Paisley J.

[68] To the degree S has other special or extraordinary expenses as she gets older, they shall be apportioned according to the parties’ income. For this purpose, the parties shall use the income as imputed to Ramin in this decision, and Jacqueline’s income as her T4 income less her annual professional or union dues.

Issue four: Should costs be awarded in respect of the parenting order?

[69] The parties settled the parenting issues the month before trial. Each party seeks costs of that order, which were expressly reserved to the trial judge. Ramin maintains that the proceedings were protracted and unnecessary because Jacqueline fabricated allegations against him. Jacqueline claims that the last 18 months of litigation have only been required because Ramin would not accept the recommendations of Mr. Hurwitz, to which he ultimately consented, as memorialized in the October 3, 2022 order of Kristjanson J.

[70] A significant amount of time was spent on evidence at trial in respect of the parenting history, which has been fractious.

[71] The respondent states that difficulties developed in the parties’ relationship after S’s birth. She describes periods of anger from Ramin that led her to be concerned about how he parented S. Until about September of 2015, Ramin would regularly visit Jacqueline and the child. Jacqueline testified that Ramin would be at the house every day, sometimes multiple times, and had a key to the house that he had left over from when he was assisting with the renovation of their kitchen. On Wednesdays he would see the child at the community centre and on Saturdays at the Promenade Mall. The parties differed as to why Ramin’s parenting time took place at these locations, with Jacqueline nearby. Ramin and S had regular telephone calls each morning. After a court appearance following S’s second birthday, Mondays were added to Ramin’s parenting time.

[72] On October 28th, 2019, Justice Diamond issued a consent order permitting the parties to proceed with a section 30 custody and access assessment. That assessment did not conclude at that time. Helen Goudge was then appointed as an open mediator to help the parties work through issues that had arisen with respect to parenting. On January 23rd, 2020, the parties executed parenting rules that they had worked through with Ms. Goudge.

[73] Once the pandemic hit in March, 2020, Ramin had regular video calls with his daughter until July, 2020. During this time period, CCAS became involved. The CCAS file was opened April 27th and closed on June 25th. Ramin is convinced that Jacqueline made sexual abuse allegations against him to the CCAS. However, the evidence reveals that it was Ms. Goudge who contacted CCAS. While Ramin believes Ms. Goudge was a friend of Jacqueline and therefore had a conflict of interest, the evidence does not support this. To the degree Ms. Goudge was referred to as a family friend, it appears to have been in relation to telling S that Ms. Goudge was a family friend in an effort to make S comfortable with Ms. Goudge. The January 2020 parenting rules signed by both parties state: “ If [S] tells either of us something that is a worry for her, we will let Helen know. We will tell [S] that Helen is our 'family friend' and [S] can talk to her about anything including issues that are bothering her.” The CCAS investigation was clearly, and understandably, very difficult for Ramin. He has been genuinely shaken by having had the suggestion of allegations of that nature made about him.

[74] Jacqueline stated, repeatedly, that she did not know what to think about the allegations. Ramin’s counsel made much of this in his questions to Jacqueline, both before and at trial, and pressed her on these questions. He argued that her uncertainty about this issue could not be squared with her certainty about his financial situation. I disagree. It is easy to see how she would not have known what to think when CCAS indicated it was undertaking an investigation on the basis of information it had received. I find nothing unusual or disingenuous about this. Nor do I find it difficult to accept that she was uncertain about this, but certain about other beliefs she held. Ramin’s counsel also argued that Jacqueline’s “over-the-top” financial allegations are parallel to her “over-the-top” abuse allegations. I do not give effect to this argument. First, the respondent did not make the sexual abuse allegations, and second, as detailed above, there is ample evidence that the applicant does in fact benefit from the family business. Ramin’s counsel also theorized that the respondent misused her knowledge gained from her work for the Office of the Children’s lawyer to involve CCAS. Such an allegation is entirely unfounded on the evidence. Such allegations impugning the professional actions of parties or witnesses should not be made without a solid evidentiary foundation to back them up. There was no such foundation here. I reject those assertions in their entirety.

[75] In late July, 2020, arrangements were made to re-establish Ramin’s parenting time. The parties entered into an interim without prejudice parenting agreement dated July 31, 2020 that included parenting time for Ramin, and COVID protections to be followed by each party. In late 2020 or early 2021, the parties began an assessment process with Howard Hurwitz.

[76] Mr. Hurwitz prepared a final report dated May 25, 2021. He provided an update in September, 2022, further to an order made by Sharma J. at Ramin’s request. Jacqueline accepted the updated recommendations but Ramin initially had some concerns about them. Ultimately the parties both accepted the recommendations and the parenting portion of the trial was settled, with terms incorporated into the final order of Kristjanson J. dated October 4, 2022. No specific amounts of costs were sought by either party in respect of the parenting order. No bills of costs were provided. As stated, the parenting orders had a long and fractious history. It is to the parties’ credit that they were able to settle the issue. Both parties were motivated by their desire to have a strong and loving relationship with the child. I do not find that costs of the parenting order should be awarded to either party.

Disposition

[77] The parties have put a significant amount of work into a series of calculations taking into account possible outcomes of the case, and appropriate deductions for each party for items such as union dues. I am providing the parameters of revised calculations to be done by the parties.

[78] 1. Retroactive child support is awarded and is to be calculated as follows:

From the child’s birth in 2014 until September 1, 2021, Ramin Amid’s income is to be calculated by adding to his employment income the amount of $36,000.00 non-taxable income annually, to be grossed up;

From September 1, 2021 until November 1, 2022, Ramin Amid’s income is to be calculated by adding to his employment income the amount of $78,000.00 non-taxable annually, to be grossed up;

Ramin is to be credited the amount of $5,937.00 which Jacqueline owes him for the closed mediation;

2. Commencing on November 1, 2022, and on the first day of each month thereafter, Ramin shall pay to Jacqueline child support based upon his employment income plus the amount of $78,000.00 non-taxable income annually, to be grossed up.

3. Unless the order is withdrawn from the Office of the Director of the Family Responsibility Office, it shall be enforced by the Director and the amounts owing under the order shall be paid to the Director, who shall pay them to whom they are owed.

4. For as long as child support is to be paid, the payor and recipient must provide updated income disclosure to the other party each year, within 30 days of the anniversary date of this order, in accordance with section 24.1 of the Child Support Guidelines. This shall be used together with the imputed income of paragraph 1 above in calculating each parties’ income.

5. Ramin shall maintain the life insurance policy currently in place for so long as S is dependent and going to school and he shall pay all policy premiums when due. If he does not and the respondent pays any premiums, interest or penalties to prevent the lapse of the policy, those amounts will be considered lump sum child support and shall be enforceable by the Family Responsibility Office against Ramin. If the policy lapses because the Applicant failed to pay the premiums, the applicant will also pay all necessary costs incurred by to reinstate the policy or obtain a substitute policy or provide sufficient security to secure the obligation to pay child support. The respondent shall be entitled to communicate directly with the life insurance company to obtain confirmation of the terms of the policy and that it remains unencumbered and in force.

6. The following special and extraordinary expenses shall be apportioned between the parties according to their income, with Ramin’s income being determined in accordance with this order and Jacqueline’s income being determined in accordance with her T4 employment income less her professional or union dues, as set out in paragraph 67 above:

2015 - $1170.10 – health premiums;

2016 - $2808.24 – health premiums;

2017 – 234.02 – health premiums;

2018 - $638.00 summer camp;

2019 - $1126.00 – summer camp

2020- $408.60 health and therapy expenses not covered;

2021- $726.00 summer camp

2022 - $745.77 health and therapy expenses not covered, and $918.00 summer camp.

Ramin shall receive credit for s. 7 amounts contributed under the order of Paisley J.

8. There shall be no order of costs for the parenting order.

[79] The parties may attend before me to settle the order once the calculations are completed. The parties are encouraged to agree on costs of the trial. Should they be unable to do so, the respondent may provide costs submissions of no more than ten pages double spaced, along with a bill of costs and any offers to settle, within 14 days. The applicant shall have 14 days to respond, with the same page limits. There shall be no reply submissions. These submissions may be sent to my judicial assistant at linda.bunoza@ontario.ca.

L. Brownstone J. Released: March 21, 2023