BARRIE COURT FILE NO.: FC-22-138-00 DATE: 20231124 SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: Shafiqullah Zadran, Applicant -and- Rita Zadran, Respondent
BEFORE: The Honourable Madam Justice S.E. Healey
COUNSEL: Omar Khan, Counsel, for the Applicant Katelyn Andersen, Counsel, for the Respondent
HEARD: November 16, 2023
ENDORSEMENT
BACKGROUND
[1] Mr. Zadran, the applicant, brings a motion for spousal support and the respondent, Mrs. Zadran, brings a motion for child support and an order for proportionate sharing of s. 7 expenses.
[2] The parties were married in 2005 and separated on September 22, 2020.
[3] She is 47 and he is 35.
[4] There are two children: Matthew, 17 and Rose, 11.
[5] The applicant seeks spousal support in the amount of $1,174 per month starting on April 1, 2023.
[6] The respondent seeks child support in the amount of $533 per month, and a 40/60% sharing of s. 7 expenses, also starting on April 1, 2023.
[7] Both parties seek to have income imputed to the other.
[8] The applicant says that his income is composed entirely of income replacement benefits (“IRB”) from his accident benefits insurer following a 2019 car accident. In 2021, he asserts that his income was $20,787 comprised entirely of IRB.
[9] The applicant does not accept that the respondent has only employment income. There is no dispute that her 2021 employment income was $57,180. However, he alleges that the respondent also has rental income from an apartment in the basement of her home, or the ability to receive such rental income, in the amount of $1,800 per month, an additional $21,600 annually.
[10] The respondent says that income should be imputed to the applicant beyond his IRB. She concedes that he has been receiving IRB in the amount of $800 biweekly since the 2019 car accident. She alleges another source of cash income and asks that income of $29,812 be imputed to him, resulting in a child support payment of $533 monthly.
[11] The respondent asks that the applicant be ordered to pay 40% of the special and extraordinary expenses based on her 2022 income of $54,627, and the respondent’s imputed income of $29,812. These s.7 expenses are: root canal costs for Matthew that exceed the insured coverage by $696; medication costs that exceed the insurance coverage by $44.45 per month; and math tutoring for each child of $200 per month.
The Applicant’s Income
[12] The applicant was employed at two No Frills stores from 2013 until the date of the accident. He worked long hours; a morning shift at one store and an afternoon/evening shift at another. His earnings between 2013 and 2018 ranged from a low of $35,924 to a high of $50,386.
[13] As stated earlier, there is no dispute that the applicant has received $800 biweekly in IRB since the accident. These benefits are non-taxable and it is the respondent’s position that as a result they should be grossed up. The applicant concedes.
[14] The reason that the respondent wants more income imputed to the applicant is that his disclosed bank account statements for his personal account from January 1, 2021 to November 10, 2022 show deposits totalling $62,726.64. This exceeds the IRB deposits by slightly over $21,000. The respondent seeks to average the two years of total deposits, a figure of $29,812.
[15] The respondent also argues that the bank statements reveal deposits not addressed in his financial statement – these are GST rebates that are available to low-income earners, and other provincial deposits that I expect are Ontario Trillium Credits/Sales Tax Credits for which low-income earners are eligible. He also received a tax refund of $1,167.93 for the 2021 taxation year. When all of these additional amounts are totalled ($2,492), it leaves an “additional” amount of approximately $18,500 in deposits.
[16] The applicant explains that the additional deposits in 2021 are CERB payments. I accept this evidence, as the deposits are a regular amount of $950. Once these deposits are taken into account, it leaves an “additional” amount of approximately $8,000. The applicant explains that he has received a modest amount of help from family and friends during this time.
[17] I accept the applicant’s evidence that these “additional” amounts are not earnings. The fact that he is still receiving IRB four years after a motor vehicle accident indicates to me that the accident benefits assessors have determined that his injuries are serious enough to prevent him from working at his former position or a similar one to which he is suited by way of education or training. And, as he has deposed, he left the marriage with considerable credit card and line of credit debt that he has been attempting to manage. He most certainly would have needed financial assistance from friends and family even to make the minimum payments.
[18] Taking the evidence from his bank statements into account, I find that the applicant’s 2023 income is comprised of IRB of $20,800 per annum. Any tax credits that he receives are not part of his total income.
[19] For the purposes of a temporary order, the applicant’s current income is $20,800 annually.
The Respondent’s Income
[20] The only dispute is whether rental income should be imputed to the respondent.
[21] The evidence presented by the applicant is that he was lulled into returning to the matrimonial home following separation in order to renovate the basement for the purpose of selling the home. It was turned into a two-bedroom apartment, and the applicant alleges that he used his credit card and line of credit to fund all of the material and labour costs. Once it was completed, the respondent refused to sell.
[22] The applicant suggests that fair market rent for a two-bedroom basement apartment would be $1,800. The home is in Alliston.
[23] The applicant has presented evidence to support his contention that the apartment is being rented, by way of a letter from CRA addressed to the home to an individual named Manjinder Kaur. The respondent’s evidence is that this individual is her friend who is going through a divorce, she does not live in the home, and the respondent permitted her to have mail forwarded temporarily to her address, for reasons not fully explained by the respondent.
[24] The respondent does not dispute the renovations, although says that she funded them entirely and that individuals other than the applicant completed the labour. But her evidence is that the intention was to turn the basement into an in-law suite, to be used by her visiting parents and so that Matthew could have more privacy and the family could have more living space.
[25] The applicant notes that the home is a four bedroom home upstairs, and Matthew has his own bedroom.
[26] This basement renovation appears to have been undertaken with proper approvals, as the parties have obtained a Certificate from the Electrical Safety Board in 2022.
[27] It is not necessary for me to decide whether the basement is or is not rented currently, although the respondent’s explanation for the mail does not convince me. I find it unlikely that a temporary address not belonging to a taxpayer would be used by CRA. It should be rented. It is a money earning asset. It is unreasonable for the respondent to be remaining in the home and underutilizing this asset. Her explanations for not renting it are unreasonable. The amount of $1,800 monthly for a two-bedroom apartment is conservative in this region.
[28] For the purposes of a temporary order, I am imputing rental income to the respondent of $21,600 and employment income, based on 2022 earnings, of $54,627, for a total of $76,227.
The Applicant’s Entitlement to Spousal Support
[29] The parties had an arranged marriage. Both were born in Afghanistan. At the time of the marriage, the applicant was residing in Berlin, Germany, he says as a refugee, and the respondent was residing in Canada. For the first six years of their marriage, she lived in Canada and he lived in Berlin. It is undisputed that he arrived in Canada in 2011, being sponsored by the respondent.
[30] The applicant speaks Dari and some German. He has learned only basic English.
[31] The respondent asserts that the applicant was deliberately underemployed during the marriage and remains deliberately underemployed today.
[32] The applicant has held no other jobs other than as a labourer at No Frills after his arrival in Canada. He worked full time for several years before the accident.
[33] The respondent’s sole evidence to support her assertion that the applicant remains underemployed is the applicant’s statement in his Form 35.1 Affidavit dated January 14, 2022 that “upon attending occupational therapy through my insurer I hope to return to full time employment”.
[34] His stated hope is understandable, given his age, health and financial circumstances. The applicant has also included a letter from 2016 from his former employer that attests to his strong work ethic, at least at that time. It comments that the applicant “is a very hard worker and a great employee to have”. It is not disputed that the respondent worked, as he described in his affidavit, at two No Frills jobs. He worked (or travelled) from 4:00 a.m. to 2:00 p.m., then switched to another store and worked from 3:00 p.m. to 8:00 p.m. five to seven days each week.
[35] The respondent’s terminology regarding her husband’s contributions to the family income are disappointing and revealing. She asserts that he abandoned his job at No Frills – this is obviously patently false given the intervening car accident, which occurred while he was travelling for work. She refers to him exhibiting signs of a “parasitic lifestyle” even before his accident, acting like a victim for having to have a full-time job, and not being interested in honest employment.
[36] His work schedule, along with the letter from his employer, discredits the respondent’s characterization of the applicant’s work ethic.
[37] He is not currently underemployed. Nor was he during the marriage. However, the medical evidence of his current medical/treatment status is wanting in many respects. There will have been OCF forms submitted to the insurer by treating practitioners and there will have been reports completed at the request of the insurer. He is entitled to the contents of his accident benefit file. It will not be enough at trial to simply rely on receipt of IRB to prove need for spousal support. But for the purpose of a temporary order, the evidence is sufficient to show that he is in need.
[38] Although the applicant has attempted to file further affidavit evidence attaching prescriptions on the day of the motion, I am not granting leave for this to be admitted on this motion. It is of little probative value without evidence from a physician about why it has been prescribed.
[39] The applicant needs support as a result of the breakdown of the marriage, and he is unable to regain economic self-sufficiency at this time due to his accident. He has shown both entitlement and need.
Section 7 Expenses
[40] The respondent seeks to have the applicant pay 40% of s. 7 expenses.
[41] Based on my conclusions with respect to their relative incomes of $76,227 and $20,800, the proportionate sharing would be 79/21%.
[42] Exhibit H to the respondent’s affidavit sworn March 27, 2023 purports to be the proof of the uninsured dental costs of $696. This document appears to be a predetermination acknowledgement from Manulife, which indicates that $696 was the amount submitted for predetermination. I do not accept this as sufficient proof that $696 is not covered by the Manulife plan.
[43] Exhibit I is a prescription summary that shows service dates, costs and insurance coverage for the drug, Epuris, indicating that the prescription is for Matthew. It was filled on five occasions between November 30, 2022 and February 7, 2023, and the total amount not covered by insurance was $226.26. However, there is no evidence as to whether this expense continues to be incurred, or how long it is expected to last.
[44] Exhibit J is an email from an individual dated March 27, 2023, who has quoted the costs of math tutoring at a cost of $25 per child per hour. The respondent has not filed any further evidence about why this cost needs to be incurred, or whether she has ever paid it.
[45] The respondent’s evidence is that before the motion was brought, these expenses had never been brought to his attention. No consultation has occurred. He has no knowledge of the treatment that is being offered to Matthew for acne and has been given no information about the treatment plan. Similarly, he has been offered no information about the need for a tutor and has not been provided with proof of payment.
[46] Due to the lack of evidence, the only s. 7 expense that can be dealt with at this time is the drug costs, which appear to have exceeded $100 per annum. However, those uninsured drug costs are a tax credit to the respondent.
Order
[47] Taking the $226 uninsured drug costs into account results in a child support payment payable by the applicant in the amount of $482 per month for 2023.
[48] The Divorcemate software calculates of range of spousal support in the range of $959 to $1,278. For the purpose of a temporary order, the mid-range level of $1,118 is the most fair and appropriate, as it leaves 64.5% of the net disposable income with the respondent and children once the child support payment is made.
[49] On a temporary basis, this court orders:
(a) Commencing April 1, 2023, the respondent shall pay spousal support to the applicant in the amount of $1,118 per month.
(b) Commencing April 1, 2023, the applicant shall pay child support to the respondent for the two children of the marriage, Matthew Zadran born April 9, 2006, and Rose Zadran, born March 11, 2012, in the amount of $482 per month.
(c) The request for payment of uninsured dental expenses, medication and tutoring costs is dismissed without prejudice to the issue being pursued at trial on better evidence.
COSTS
[50] If the parties are unable to agree upon the costs of this motion, they may provide written submissions not exceeding three single-spaced pages in length not including cost outlines, offers to settle and any authorities on which they rely. The applicant’s submissions are due by December 1, 2023 and the respondent’s by December 8, 2023. Submissions shall be served on the other party and filed with proof of service through the filing office at BarrieSCJfamily@ontario.ca, with a copy to my judicial assistant at BarrieJudSec@ontario.ca.