Court File and Parties

COURT FILE NO.: FS-22-0028929-0000 DATE: 20231005 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MAI JEHAD IBRAHEM Applicant – and – NOOR ALDIN ALI KAREM Respondent

Counsel: Li Tian, for the Applicant Self-represented Respondent

HEARD IN WRITING: February 16, 2023

VELLA J.

Reasons for Uncontested Trial

Preliminary Issue: Jurisdiction

[1] On February 16, 2023 I released an endorsement requesting further evidence and submissions with respect to my jurisdiction under the Divorce Act, in light of the fact that the Applicant could not produce a marriage certificate and did not adduce adequate evidence of her marriage in Syria.

[2] I have received further affidavit evidence and submissions.

[3] I am satisfied that the Applicant has proven that she was married in Syria. The Applicant has provided specific details of her engagement and subsequent marriage pursuant to Sharia Law. She has produced a photograph of her wedding. She has explained how her parents lost the marriage certificate they kept in their house due to the civil war in Syria.

[4] Most importantly, she has produced an extract from the civil register in Syria that records the fact and date of her marriage to the Respondent and the children of the marriage. She has provided a statutory declaration of a translation of this extract from the Arabic language into the English language. It records her status as married to the respondent as of July 28, 2022.

[5] Accordingly, I have jurisdiction under the Divorce Act.

[6] The Applicant seeks the following relief under the Divorce Act:

(a) A divorce; (b) Support for the children at the Table amount retroactive to the date of separation and ongoing with a SDO, together with a payment plan for the arrears of child support; (c) Sole decision making authority for the children; (d) Supervised parenting time for the Respondent Father.

Background - Uncontested Facts established by the Evidentiary Record

[7] The Applicant Mother was married to the Respondent Father in Daraa, Syria on November 24, 2011. The marriage was in accordance with their traditional practice in Syria as Muslims.

[8] In January 2016, the family, including the children, immigrated to Canada under the federal Ministry’s Government Assisted Refugee program as UNHCR Refugees and have lived in Canada ever since.

[9] The parties were separated in July 2019.

[10] There are two children of the marriage. I.K. was born on September 25, 2012 and H.K. was born on May 5, 2015.

[11] The Mother states that the Father became physically abusive towards her and this pattern culminated in July 2019 when he beat her up again. She asked him to leave the house and threatened to call the police. The Father left the house and "orally divorced" her apparently in accordance with Islamic law.

[12] Since the Father has moved out of the family home, he had no contact with the Mother or the children until December 2021. In December 2021, the Father showed up without notice at the Mother's workplace. Other than this isolated appearance, there has been no contact or attempted contact by the Father with the children or the Mother. However, the Father has had no contact with the children since the date of separation and made no effort to contact them.

[13] The Father has not paid any support for the children since the date of separation.

[14] The Mother has been the primary caregiver of the children since their birth.

[15] The Mother deposed that the Father has told her he is working, but would not share any details of his work. She has since come to believe that the Father has moved to Scarborough in 2022.

[16] By Order of Justice Papageorgiou dated June 22, 2022, the Applicant served the Application by email to the Respondent’s email (adam.ali011090@gmail.com) and his WhatsApp account.

The Law and Analysis

Decision Making and Parenting Time

[17] Section 16(1) of the Divorce Act provides that in making an order for parenting time or decision-making responsibility the court shall take into consideration only the best interests of the child. Section 16(2) states that when considering the factors in s. 16(3) to determine the best interests of the child, the primary consideration is the child's physical, emotional, and psychological safety, security, and well-being.

[18] Section 16(3) sets out a list of circumstances the court shall consider in determining the child's best interests. The list is not exhaustive:

16(3) Factors to be Considered – In determining the best interests of the child, the court shall consider all of the factors related to the circumstances of the child including:

(a) Child’s needs given the age and stage of development, such as the child’s need for stability; (b) The nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life, (c) Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse; (d) The history of the care of the child; (e) The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (f) The child’s cultural, linguistic, religious and spiritual upbringing and heritage including Indigenous upbringing and heritage; (g) Any plans for the child’s care; (h) The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (i) The ability and willingness of each person of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child; (j) Any family violence and its impact on, amongst other things; (i) The ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and, (ii) The appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and (h) Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

[19] Section 16(4) sets out a list of specific factors the court shall take into account in considering the impact of family violence:

(a) the nature, seriousness and frequency of the family violence and when it occurred; (b) whether there is a pattern of coercive and controlling behaviour in relation to a family member; (c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence; (d) the physical, emotional and psychological harm or risk of harm to the child; (e) any compromise to the safety of the child or other family member; (f) whether the family violence causes the child or any other family member to fear for their own safety or that of another person; (g) any steps taken by the person engaging in family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and (h) any other relevant factor

[20] I accept the Mother’s evidence that she has been the primary caregiver for the children since birth. She has provided the children with emotional support and made all decisions regarding their education, health and extracurricular activities. I further accept the Mother’s evidence that the Father has played no role in the children’s lives since he left the family home and that for two years following separation there was no contact by the Father at all. The Father has not responded to the Application.

[21] Accordingly, the Mother will have sole decision making authority over the children.

[22] There is some evidence in the record that there has been a history of violence in this family.

[23] While I do not have a sufficient evidentiary basis upon which to determine the nature and extent of the alleged family violence, I am satisfied that family violence is a relevant factor.

[24] In light of the apparent complete lack of involvement of the Father in the children’s lives since the date of separation, including no parental visits or requests for parental visits, and the credible allegation of family violence, I am prepared to order, on a temporary basis, that the Father shall only have supervised access at times that are at a mutually agreeable place and time. This Order does not preclude the Father from bringing an Application to vary the parenting time with the children.

[25] I am satisfied that the Mother’s proposed parenting plan is in the best interests of these children.

Child Support

[26] Section 15 of the Child Support Guidelines provides that a payor’s annual income is to be determined in accordance with sections 16 to 20. Section 16 provides that a payor’s annual income is their income set out under the heading “Total income” in the T1 General form on their income tax return, subject to sections 17 to 20 and adjusted in accordance with Schedule III.

[27] Section 19(1) of the Child Support Guidelines permits the Court to impute income to a payor as it considers appropriate in the circumstances. The section sets out a list of circumstances where the Court may impute income which include a spouse being intentionally unemployed or underemployed, living in a country with different effective tax rates than Canada, and failing to provide income information when under a legal obligation to do so.

[28] While the Court has discretion under s. 19(1) to impute income, it must do so based on the evidence. The Court cannot select an arbitrary figure: Drygala v. Pauli at para. 52.

[29] The Father did not file any responding pleadings or a Financial Statement. I do not have his income tax returns or Notices of Assessment. I have no evidence of whether the father is currently employed or his income.

[30] However, the Mother deposed that the Father told her that he was working. He did not disclose his income or where he is working.

[31] The Mother asks that I impute an annual income of $32,240 which reflects full time work at minimum wage (as at October 1, 2022) at the rate of $15.50 over a 40 hour work week and a 52 week year. Since the swearing of this affidavit, the Ontario government has raised the minimum wage. She seeks retroactive child support for both child going back to July 1, 2019 and calculated to September 14, 2022 in the sum of $18,678.90, and an order that the Father pay this amount in monthly increments of $450.00 per Month.

[32] She also seeks an order that the Father pay ongoing child support in the sum of $491.55 per month for so long as the children are eligible for child support.

[33] The Mother is working.

[34] The Father is 33 years old. I have no evidence as to his employment status up to the date of separation in July 2019. However, there is an indication he found employment afterwards. He does not have any health or other issues that would prevent him from working full time.

[35] I consider it appropriate to impute annual minimum wage income of $32,240 (as of October 1, 2022) to the Father in determining his obligation to pay child support on a retroactive and prospective basis. Monthly support for two children in accordance with the Child Support Guidelines for an annual income of $32,240 is $491.55.

[36] The Mother has not sought a section 7 expenses contribution from the Father. I will make no order with respect to this category. However, this does not preclude the Mother from seeking an order requiring the Father to pay his share of s. 7 expenses in the future.

[37] There is no evidence of whether the Father has health and dental coverage available to him through his employment or if the children and the Mother were beneficiaries of that plan during the marriage. If the father has coverage available to him, I find that he should continue to cover the children and the Mother as beneficiaries under the health and dental plan for so long as the plan is available to him through his employment or union and the children and mother qualify as beneficiaries under the plan.

[38] The Mother proposes that child arrears be paid off by the Father in monthly increments of $450.00. However, in my view this is too much given the Father’s imputed annual income. However, should the Father earn more than the imputed annual income, this figure can be adjusted.

Divorce

[39] The mother has filed an Affidavit for Divorce and a supplementary affidavit. All the requirements in the Divorce Act have been met. A divorce shall be granted.

Orders

[40] I make the following orders:

(a) The Applicant shall have sole decision-making authority for the children of the marriage, namely, I.K. born September 25, 2012 and H.K. born May 5, 2015. The children shall have their primary residence with the Applicant. (b) The Respondent shall pay child support to the Applicant in the sum of $491.55 per month for the support of the two children, I.K. and H.K., commencing October 15, 2023 based on an imputed income to the Respondent of $32,240 per year. Arrears of child support are fixed at $18,678.90 as at September 14, 2022. (c) The Respondent shall pay the arrears of child support in the sum of $300 per month; (d) A Support Deduction Order shall issue. (e) Beginning in 2024, and for as long as child support is payable, the Respondent shall by July 1st of each year provide the Applicant with a copy of his income tax return and notices of assessment and reassessment for the previous year. (f) If the Respondent has health and dental coverage available to him through his employment, he shall name the children and the Applicant as beneficiaries under the plan for so long as the plan is available to him through his employment and the children and the Applicant qualify as beneficiaries under the plan. (g) The Father will have supervised visits with the children at times and places determined on mutual agreement with the Mother. (h) Unless the support order is withdrawn from the office of the Director of the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed. (i) The Applicant, Mai Jehad Ibrahem and the Respondent Noor Aldin Ali Karem who were married in Daraa, Syria on November 24, 2011 be divorced and that the divorce take effect 31 days after the date of this Order. (j) The Applicant has not sought costs, and no costs are ordered. (k) The Order will attract interest on amounts payable at the rate determined under the Courts of Justice Act.

Justice S. Vella Released: October 05, 2023