Court File and Parties

COURT FILE NO.: FC-21-706 DATE: 2023/03/31 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ghada Mansour, Applicant -and- Yassin Hassan, Respondent

BEFORE: Anne London-Weinstein J.

COUNSEL: Diana Aoun, for the Applicant Courtney Shields, for the Respondent

HEARD: March 7, 2023

Endorsement

Overview:

[1] The parties had a relationship which started at some point in 2017 and ended at some time in 2021. They were never married. They have one child, Salem Yassin, born on February 9, 2021. Saleem has Trisomy 21, commonly referred to as Down’s Syndrome. He has a heart and lung condition and may also have epilepsy. Both the parties have children from other relationships. Saleem resides with his mother, the Applicant. The Respondent father has recently resumed unsupervised parenting time.

[2] The Court made an earlier ruling dealing with the parenting time. There was insufficient time allotted to the motion to also deal with the issue of child support, retroactive child support and whether income should be imputed to the Respondent. This motion deals with the issue of child support and income imputation only. There are credibility issues which must be resolved before the issue of retroactive support can be resolved. Therefore, the issue of retroactive support will be dealt with at trial. For reasons which I will also further explain, the issue of whether the Respondent is permanently incapable of doing any type of work at all will have to be an issue resolved at trial.

[3] The Respondent claims he cannot do any type of work, including non-physical labour, due to his physical limitations. He argues that he is incapable of paying any amount of child support. He has applied for ODSP and his doctor is in the process of filling out the necessary documentation to complete that application.

[4] The Applicant is currently unemployed and her primary source of income are ODSP payments and child tax related benefits.

[5] The Respondent is unemployed and lives with his mother. He previously worked at Old Dutch Foods Ltd., but was discharged after failing to return to work after the birth of Saleem. The Respondent claims his physical limitations precluded his return to work. He claims he has no income whatsoever. His mother provides shelter and food for him. She has refused to provide information regarding her sources of income.

[6] The Respondent’s Notice of Assessment indicates his income in 2021 was $22,501, in 2020 it was $44,422, in 2019 it was $42,800 and in 2018 $44,119.

[7] In support of his contention that he is incapable of any type of work at all, the Respondent submitted a letter from Dr. Bryan A. Boyd. Dr. Boyd is the Respondent’s family doctor. Dr. Boyd’s opinion is that the Respondent is incapable of returning to work in any form. The letter indicates the Respondent has chronic neck and shoulder pain with nerve damage in the arm, and now also has frozen shoulders. Dr. Boyd notes that these conditions cause significant disability and the prognosis for these conditions is guarded.

[8] The Respondent has been diagnosed with Regional Chronic Pain Syndrome with chronic neck and shoulder pain, a C5 radiculopathy causing left arm pain and sensory changes and bilateral frozen shoulders causing pain and loss of motion of the shoulders. Dr. Boyd has indicated that this diagnosis significantly impairs the Respondent’s ability to return to work. Spinal surgery is not recommended. Some therapies have been attempted including chiropractic therapy, cortisol injections and physiotherapy.

[9] The Respondent is not paying child support to his other children, which he owes at a rate of $939 a month.

[10] The Applicant seeks:

• An Interim Order that the Respondent’s Income shall be imputed in the amount of $44,000 pursuant to s. 19 of the Child Support Guidelines, O.Reg. 391/97 as am.
• An Order that the Respondent shall pay retroactive child support for the child Saleem Yassin, born February 9, 2021, in the amount of $6,902 based on an imputed income of $44,000 and in accordance with the Child Support Guidelines;
• An Order that commencing on January 1, 2023, the Respondent shall pay ongoing child support in the amount of $406 per month based on an imputed income of $44,000 and in accordance with the Child Support Guidelines;
• An Order requiring the Respondent to obtain or maintain a life insurance policy designating the Applicant as irrevocable beneficiary of the policy, in trust for the child, in an amount sufficient to secure child support obligations pursuant to s. 34(1) of the Family Law Act, R.S.O. 1990, c.F.3, as am; and
• An Order that the Respondent provide proof of how much his mother is providing him each month, proof that she is providing him funds each month, and evidence of his mother’s income sources, expenses, etc.

Legal Analysis:

[11] The presumptive rule for child support is set out in section 3 of the Ontario Child Support Guidelines where the amount of child support is the table amount according to the number of children and the income of the payor. Child Support Guidelines, O Reg 391/97, s.3

[12] Pursuant to section 19(a) of the Guidelines, the court may impute income to a parent in appropriate circumstances including where a parent is intentionally under-employed or unemployed, other than where it is in relation to the needs of the child or the reasonable educational or health needs of the parent. Child Support Guidelines, s. 19(1)(a).

[13] In order to impute income to the Respondent the court must be satisfied that:

a) The parent is intentionally under-employed, or unemployed; b) If yes to the above, that the intentional under-employment or unemployment is required by virtue of his reasonable needs; and c) If not, what income is appropriate to impute in the circumstances? Drygala v. Pauli at para 28.

[14] The burden rests on the party seeking the imputation of income to demonstrate that the other party is intentionally under-employed or unemployed. If the court is not satisfied that the party is intentionally under-employed or unemployed, the analysis ends. If the party seeking the imputation of income is able to meet the burden, that burden then shifts to the other party to demonstrate that the intentional under-employment or unemployment is required based on their needs.

[15] The following considerations must be considered where the purported reason for the under-employment or unemployment is based on a health concern:

• There is a duty to seek employment in a case where a person is healthy, Drygala, supra.
• A health limitation may constitute a reasonable explanation for unemployment or under-employment. The onus rests on the party advancing this explanation to provide evidence as to the nature and magnitude of the health problem; and also the connection between the health issue and the person’s capacity to earn any income. Cogent medical evidence in the form of a detailed medical opinion should be provided by the payor in order to satisfy the court that the reasonable health needs justify a decision not to work. Stoangi v. Petersen.
• The payor must establish that any medical excuse for being underemployed is reasonable. Rilli v. Rilli.
• Support payers must make reasonable efforts to address whatever medical limitations they may have to earn income. This means following up on medical recommendations to address those limitations. C.V. v S.G., 2019 ONCJ 159 (OCJ).
• In considering the amount of income to be imputed, the court should consider the payor’s capacity to earn an income when taking into consideration their age, education, health, work history and availability of work that is within the scope of their capabilities. Crowe v. McIntyre, 2014 ONSC 7106 at para 29.
• In assessing the imputation of income, the evidentiary basis for that assessment may be less than complete, as long as it is enough to permit the court to exercise its discretion in rendering a decision. Balanco v. Grummett, 2022 SCC 37 at paras 96, 99 and 121.

[16] I am satisfied on a balance of probabilities that the Respondent is intentionally unemployed. The evidence is that he deliberately did not return to work after his parental leave with Saleem expired. The Respondent claims that it was at the termination of the parental leave that his physical limitations precluded his return to his employment.

[17] Turning to the next question, I am not satisfied that complete unemployment is necessary by virtue of the Respondent’s reasonable needs. I appreciate that this is a motion, and not a trial. However, Dr. Boyd’s evidence is opinion evidence. The conclusion that the Respondent’s health concerns prohibit him from returning to any type of employment is opinion evidence. It is also properly the subject of an expert’s opinion. I have no evidence as to Dr. Boyd’s qualifications to provide expert opinion evidence regarding the Respondent’s inability to be employed in any manner. Dr. Boyd’s evidence extends beyond observation. His evidence includes his opinion that the Respondent cannot be employed.

[18] The opinion rule is a rule of general exclusion. Witnesses may testify as to the facts which they perceived and not as to resulting opinions that they drew from the facts. Opinion evidence is generally inadmissible as it is a fundamental principle of our system of justice that it is for the trier of fact to draw inferences from the evidence and to form their opinions on the issues in the case, not for the witness. R. v. K.A. White Burgess Langille Inman v. Abbott and Haliburton Company, 2015 SCC 23 at para. 14.

[19] In considering the admissibility of expert opinion evidence, the Court must consider whether the proposed evidence complies with applicable statutory and court rules. Rule 20.2 of the Family Law Rules, O. Reg. 114/99, as am. sets out procedural requirements respecting expert opinion evidence. Rule 20.2(1) distinguishes between a litigation expert and a participant expert. The term litigation expert is a “person engaged for the purposes of litigation to provide expert opinion evidence. Participant expert is defined as a person who is not engaged to provide expert opinion evidence for the purposes of litigation, but who provides expert opinion evidence based on the exercise of his or her skills, knowledge, training or experience while observing or participating in the events at issue. The essence of a participant expert is that they play a role in the unfolding of the relevant facts in the litigation LaRoche v. Lynn, 2019 ONSC 6602 at para 35.

[20] With regard to litigation experts, Rule 20.2(2) of the Family Law Rules, requires that the party wishing to call the expert as a witness at trial must, at least six days before the settlement conference, serve and file the report signed by the expert and containing the detailed information set out in that rule, which includes the acknowledgement of the expert’s duty to the court. This requirement does not extend to participant experts unless their opinion their opinions extend beyond the limit set out in the definition of participant expert. However, Rule 20.2 (14) provides that a party who wishes to submit an expert as a participant witness at trial, shall, at least six days before the settlement conference, serve notice of the fact on all of the parties, and if the party wishes to submit any written opinion prepared by the expert as evidence in the trial, serve the written opinion on all other parties and file it. In addition, they must serve on any other party, at that party’s request, a copy of any documents supporting the opinion evidence the participant expert plans to provide.

[21] Where a party seeks to adduce opinion evidence from a participant or a non-party expert, the court must be vigilant in ensuring that the scope of their opinion does not stray form the proper bounds of such an expert into the area of litigation expert opinion evidence.

[22] The Ontario Court of Appeal has stressed that in acting as a gatekeeper with respect to expert evidence, trial judges have an essential role to play in making sure that participant experts do not exceed their proper role, or if they do, that there is compliance with the applicable rules regarding litigation experts. Imeson v. Maryvale, 2018 ONCA 888 at para 63.

[23] If the procedural requirements of Rule 20.2 have been adhered to, the court must assess the substantive admissibility of the expert opinion evidence. The evidence must be logically relevant, the evidence must be necessary to the trier of fact, the evidence must not be subject to any other exclusionary evidentiary rule, the expert must be properly qualified and the evidence must not be subject to any other exclusionary evidentiary rule. R. v. Mohan, [1994] 2 S.C.R. 9.

[24] Dr. Boyd’s observations regarding the Respondent’s physical limitations is admissible on the motion. However, the conclusions that Dr. Boyd reaches regarding those physical limitations is opinion evidence. The evidence goes beyond mere observation. Given that Dr. Boyd has not been qualified as an expert, and the evidentiary record before this court is not able to support the inference requested, I am unable to conclude that the Respondent is incapable of any type of work, including non-physical labour. I note that the child in this case is two years old and the Respondent seeks to spend maximum time with him. There is no suggestion that he is physically incapable of caring for a two-year old.

[25] As a result of the inadmissibility of the opinion evidence, I am unable to rely on this evidence to conclude that the Respondent is incapable of any type of work. I do accept at this point that he has physical limitations which impair his ability to work at his former level of employment. However, there are many other jobs which do not require full time physical labour and of which he may be capable.

[26] I am satisfied that the Respondent is intentionally under-employed at this stage, given the limits of the medical evidence at this stage of the proceedings and the Respondent’s failure to look for more physically accommodating employment. The under-employment is not reasonable for his needs as I am not satisfied that he is incapable of engaging in non-physical labour, or of working on a part-time basis.

[27] I turn now to the issue of what level of income is appropriate to impute to the Respondent. It is not reasonable to impute $44,000 to the Respondent given that he is no longer working at Dutch Foods Ltd., and there is some admissible evidence of physical limitation which would preclude him from returning to that job. His former work involved some physical labour, including lifting and carrying boxes when making deliveries.

[28] However, I am not satisfied that he is incapable of all employment. Income shall be imputed to him at a rate of minimum wage for 30 hours a week, which is below full-time employment. This results in an annual imputed income of $22,776. ($14.60 multiplied by 30 hours a week multiplied by 52 weeks) The Guidelines indicate that for one child this results in a support payment of $176 per month. I impute income to him in the amount of $22,776 and order that he begin to pay child support on a temporary and without prejudice basis in the amount of $176 per month effective May 1, 2023.

[29] The Respondent is a 53 year old man with health limitations. As indicated, there is no admissible evidence before me that he is completely incapable of any type of work. He seeks to spend much more time with this child, which will involve some physical stamina on his part. His willingness to expend his physical energy caring for his young child suggests that he may be capable of non-physical labour at a job, albeit on a part-time basis.

[30] The issue of retroactive support is to be determined at trial and the parties are to disclose any outstanding financial documents to each other. The issue of whether the Respondent shall be ordered to purchase life insurance to secure future child support payments will also be determined at trial.

Costs:

[31] This motion and the original motion from which it originated resulted in divided results. The Applicant did not wish the Respondent to have unsupervised parenting time, which was granted. The Applicant was successful in this motion on the issue of the imputation of income, but not in the amounts sought. Given the divided success on the motions, each party shall carry their own costs.

Anne London-Weinstein J. Date: March 31, 2023