Court File and Parties

Court File No.: FS-21-00025244-0000 Date: 2024-06-19 Ontario Superior Court of Justice

Between: Chidi Gerald Uchechukwu, Applicant – and – Blessing Nkechinyere Oriaku, Respondent

Counsel: Afshan Kanwal, for the Applicant Tajinder Sivia, for the Respondent

Heard: June 3-5, 2024

Before: Mathen, J.

Part I: Introduction

[1] The parties, Chidi Gerald Uchechukwu (“Applicant”) and Blessing Nkechinyere Oriaku (“Respondent”) married in 2009. They have three children, M., born July 20th, 2010, C., born September 10th, 2012 and L., born January 12th, 2019.

[2] The parties separated on February 26, 2021.

[3] The trial addressed the following issues: divorce, sole decision-making, income, child support and equalization.

Part II: Overview

[4] The parties met in Nigeria. They were married in 2009. Their relationship was fractious, with at least one separation in 2012. By 2015, the parties had reconciled.

[5] Both parties were employed in Nigeria. On occasion, they worked together. The Respondent had at least one business.

[6] In 2017, the parties emigrated to Canada. By this time, they had two children, M. and C. Their third child, L., was born in Canada.

[7] In Canada, the Applicant father worked as an Uber/Lyft driver. The Respondent mother worked as what she called a “homemaker” but what I gather from the trial evidence was a cleaner. Both sought to further their education. The Respondent is a 4th year student in the Community Mental Health and Addiction Program at Seneca Polytechnic. The parties dispute the Applicant’s education status. Both parties have received loans and grants from the Ontario Student Assistance Program (“OSAP”).

[8] The parties again encountered relationship difficulties. They separated for good on February 21, 2021.

[9] Pursuant to a final order of this Court dated June 5, 2023, the three children live with the Respondent. The Applicant has parenting time from Friday at 6 pm until Sunday at 8 pm on the second full weekend of each month.

[10] The Applicant lives in Barrie, Ontario. The Respondent and children live in Etobicoke, Ontario.

[11] The parties appear to be of modest means. Aside from employment, both testified that their main sources of revenue were OSAP, the Canada Child Benefit (“CCB”) and social assistance (“Ontario Works”).

[12] On May 6, 2024, the Applicant’s counsel, Ms. Kanwal, applied to be removed as counsel of record. That request is pending (and likely moot as she attended this trial). Ms. Kanwal discharged her role in these proceedings with competence.

[13] A principal task I faced in this trial was determining the truth of alleged facts. In the words of Justice Diamond, this task can be rendered “unenviably difficult” depending on the narrative put forward by the parties: Konstan v Berkovits, 2023 ONSC 497, para 8.

[14] Some of the traditional criteria used to assess witness evidence include demeanour, inherent probability in the circumstances, and internal and external consistency: Prodigy Graphics Group Inc. v. Fitz-Andrews, 2000 CarswellOnt 1178 (S.C.), at para. 46 per Justice Cameron.

[15] As Justice Diamond observed in Konstan, witness credibility is critical to the burden of proof. Where a party has the burden to discharge a legal onus, I must satisfy myself, on a balance of probabilities, of “the credibility and reliability of the evidence in order to be in a position to make the relevant findings of fact.” (supra, para 9).

[16] In R. v. Gagnon, 2006 SCC 17, at para. 20, the Supreme Court of Canada cautioned that evaluating witness credibility is not “a science”. It is “very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events”, ibid.

[17] As described in greater detail below, I found neither party to be wholly credible. My doubts extend to them in equal measure. The Applicant’s failure to provide clear answers to direct and straightforward questions led me to conclude that he was not always being forthright. The Respondent recalled, for the first time and while on the stand, an event that had been a subject of prolonged dispute between the parties. I did not find her account of this sudden realization to be plausible.

Part III: Issues

a. Divorce

[18] Both parties seek an order for divorce.

[19] Based on the evidence of the parties, I am satisfied that there has been a breakdown of the marriage within the meaning of section 8(2)(a) of the Divorce Act. The parties have been separated for at least one year, there is no possibility of reconciliation, there is no evidence of collusion or condonation in relation to the divorce request, and my judgment will address the issue of child support. Accordingly, a divorce order shall issue in the usual form.

b. Decision-making

[20] Neither party sought a change from the final order referred to in paragraph 9 of these reasons.

[21] That order, however, did not address decision-making. At trial, the Applicant father initially sought joint decision-making with respect to emergencies and schooling. The Respondent mother sought decision-making on all issues, including international travel.

[22] During closing submissions, the parties agreed that each should have the right to travel internationally with the children without consent of the other. They agreed that two weeks’ notice is sufficient, such notice will include an itinerary (the dates and location of travel), the children’s passports will remain in the Respondent’s custody to be exchanged as needed, and any required parental consent to execute or obtain new travel documents will not be unreasonably withheld.

[23] The parties also agreed that at any given time the person with physical custody of the children can make decisions about emergency issues requiring immediate attention.

[24] With respect to settling decision-making for all other situations, including non-emergency medical situations and issues of schooling, above all else I must consider the best interests of the children: Gordon v Goertz, [1996] 2 SCR 27, 1996 SCC 191. The Applicant father’s wish to be involved in these decisions, though understandable, is not paramount.

[25] Joint decision-making depends on the ability to communicate effectively: Kaplanis v Kaplanis, 2005 ONCA 1625, para 2.

[26] The parties have failed to demonstrate this ability. The Applicant testified that, post-separation, he could not recall sending the Respondent more than a handful of texts about the children. In July of 2021, the Respondent asked for the Applicant’s consent to renew one of the children’s U.S. passports. The Respondent testified that she received no reply. The Applicant testified that he was suspicious of the request and still reeling from the separation. However, he did not mention making any direct reply to this request. I accept the Respondent’s statement that there was none.

[27] The parties’ respective testimony and comportment during these proceedings illustrated their inability to communicate. They were unable to put aside their emotions, especially regarding questions concerning each other.

[28] Kaplanis, supra, concerned a prior joint custody order. Here, the Respondent mother has been the primary caregiver since separation. I accept the Respondent’s evidence that the Applicant has not consistently exercised his monthly parenting time. I also accept the Applicant’s evidence that this is not due to indifference to the children, but rather the distance between Barrie and Etobicoke. Nevertheless, I find that the Applicant father has not played a significant role in the children’s lives for several years. Therefore, his participation in decision-making is not in the children’s best interests.

[29] I therefore order decision-making to be as follows:

a) Each party shall have the right to travel internationally with the children without consent of the other. The traveling parent will provide the other parent with two weeks’ notice that shall include an itinerary with the dates and location of travel as well as contact information. The children’s passports shall remain in the Respondent mother’s custody to be exchanged as needed. Any parental consent required to execute or obtain new travel documents for the children shall not be unreasonably withheld. b) At any given time, the person with physical custody of the children may make decisions about emergency issues requiring immediate attention. c) The Respondent mother shall exercise sole decision-making with respect to all other issues, including non-emergency medical situations and schooling.

c. Imputation of income

[30] The Respondent seeks to impute income to the Applicant to the level of the Ontario minimum wage. The Applicant argues that as he is currently a student, this would be inappropriate. The parties also disagree on the veracity of the Applicant’s business deductions.

[31] The Applicant father claims annual income of $2,788 for 2023, $15,274 for 2022 and $19,923 for 2021.

[32] The Applicant’s 2023 tax return shows a gross income of $30,000. However, his 2023 Notice of Assessment shows only $2,788 net income. The Applicant did not satisfactorily explain how he was able to reduce his gross income by 90%.

[33] Section 19 of the Federal Child Support Guidelines permits a court to impute income to a parent where that person "is intentionally under-employed or unemployed” (SOR/97/175, as am.). The test for applying section 19 requires determining (a) whether the Applicant is intentionally under-employed or unemployed; (b) whether such under- or unemployment is necessitated by virtue of reasonable educational needs; and (c) what income would be appropriate: Drygalia v Pauli, [2002] OJ No. 3731, 2002 ONCA 41868, para 23.

[34] The Applicant says that his educational efforts prevent him from working full-time.

[35] I am not persuaded that, post-separation, the Applicant has ever pursued full-time post-secondary studies.

[36] Over the last several years, the Applicant has had a pattern of enrolling and then withdrawing from different post-secondary programs. He says his overall goal is a nursing degree. However, his coursework and registrations reveal little commitment to such a goal:

a) In the Fall, 2021 term the Applicant did attend a Nursing Degree Program at Georgian College for 21 credit hours per week. Under examination, however, the Applicant acknowledged that he withdrew from the program and did not earn any credits for courses pursued. b) Since 2021, the Applicant has not been enrolled in a nursing program. Instead, he has been studying Computer Programming – which he says will be helpful to an eventual Nursing degree. The Applicant did not explain this reasoning and I do not find it credible. c) The Applicant did not take any classes in 2022. d) The Applicant claims to have taken courses in the 2024 Winter term which ended only a few months before these proceedings. But he was unable or unwilling to describe his courseload. He said he would first need access to his timetable.

[37] A parent’s commitment to post-secondary education is commendable. Especially where a party is engaged largely in lower-paid work, it is appropriate to encourage efforts to improve their prospects.

[38] I accept that the Applicant wishes to improve his educational prospects. But his efforts have been inconsistent and unfocused.

[39] The Applicant’s record does not show a reasonable prospect of obtaining a diploma or degree anytime soon, let alone in nursing.

[40] I therefore find that the Applicant is, at least, intentionally under-employed.

[41] Imputation of income is an inexact science. I am mindful of my obligation to not arbitrarily select a number. Drygalia, supra notes that a spouse’s prior employment can provide a reasonable basis on which to impute income. The difficulty in this case is the inadequate evidence before me on that issue, largely due to the Applicant’s failure to disclose documents in a timely manner, and his unconvincing and evasive responses to questions. He failed to fully disclose his earnings as an Uber/Lyft driver. When he was cross-examined on gaps or inconsistencies in his materials or his history, the Applicant could or would not recall details. He blamed past legal counsel or third parties such as H&R Block, saying that he is “not an accountant” and would often sign financial documents without reviewing them. As a result, it is difficult to judge the Applicant’s earnings potential.

[42] Nor do I accept that the Applicant’s income should be reduced due to reasonable business expenses. First, I have serious doubts about the validity of these expenses. Second, the Applicant is obligated to engage in reasonable employment to support his children. Should his business expenses overwhelm his income, he must make efforts to compensate for that.

[43] The Respondent mother has requested an imputation to minimum wage. This is a modest imputation, particularly for an individual without reasonable educational needs. Virtually all of the Applicant’s income-related arguments relate to his claim that he is a student. Nothing in the record before this Court indicates a disability or medical-related reason for the Applicant’s underemployment, or any other reason that the Applicant could not find full-time work at the minimum wage.

[44] I order that an income equivalent to the minimum wage in effect in Ontario at the relevant time be imputed to the Applicant for each full month following the date of separation.

d. Retroactive child support

[45] The Applicant father has been paying monthly child support for the three children of the marriage. He acknowledges that the total amount of child support paid since the date of separation is $8,402.00. The Applicant claims that, using DivorceMate calculations, he has overpaid child support by $2,516.00.

[46] Having asked for the Applicant’s income to be raised to the minimum wage, the Respondent mother originally sought retroactive child support in the amount of $19,371.81. This figure, however, relied solely on the 2024 minimum wage.

[47] I have concluded that an income equivalent to the minimum wage actually in effect should be imputed to the Applicant. This makes his owed child support much higher than what he has paid to date. I therefore reject his argument that he has overpaid. Should this imputation not be correct, I add that I did not find the Applicant’s evidence regarding his income and his business expenses credible. Because I do not accept his calculations as credible, I would reject the claim that he has overpaid in any event.

[48] The Respondent mother’s claim for retroactive child support arises under the Divorce Act. While the Act does not specifically mention retroactive child support, this Court has jurisdiction to consider it: D.B.S. v. S.R.G., [2006] 2 SCR 231, 2006 SCC 37.

[49] Child support is the right of the child. Where possible, retroactive payments should provide a child with the same standard of living they enjoyed before their parents separated. Orders for retroactive support ensure that (a) children benefit from the support they are owed, and (b) parents are incentivized to keep up their payments: D.B.S. v. S.R.G, supra.

[50] Factors relevant to retroactive support include: any reasonable excuse for why payment was not made earlier; the blameworthiness of the payor parent; and the hardship that such an order might entail.

[51] I was provided with no evidence concerning the children’s present lifestyle. I have formed a general impression that the parties are of modest means. Nevertheless, I find that continuing to pay the children less support than they are owed will have serious consequences on them.

[52] I have found the Applicant to be intentionally underemployed. While I accept that the Applicant wishes to improve his employment prospects through study, I am persuaded that he has used that as an excuse for failing to secure full-time employment even after it was or should have been obvious to him that his education would be significantly delayed.

[53] In addition, I have my doubts as to the true state of the Applicant’s financial affairs. For example, the record discloses the following gaps and inconsistencies:

a) A lump sum payment towards his car loan in the amount of $9,371.81 on October 21, 2022. At this time, he was paying child support for three children in the amount of $150 per month. He states that his income in 2022 was $15,272. b) The Respondent mother entered into evidence a bank statement showing a $40,000 payment for the period February 4 – March 31 2024 made via a CIBC account belonging to the Applicant. The statement did not show the recipient or the exact date. No other documentary evidence was provided. The Applicant described this as a repayment of the federal Canadian Emergency Business Account loan he received during the COVID-19 pandemic. He stated that he received the funds to repay the loan through a “program” by “the bank”. No further evidence was forthcoming. I do not find the Applicant’s explanation for how he secured $40,000 to be credible. c) The Applicant failed to fully disclose how much he earns as an Uber/Lyft driver.

[54] The Respondent mother asks for an adjustment that is considerable for a person of limited means. Ordinarily, this would raise a question of whether such an order might pose a hardship. But, given the importance in honouring child support, and since I find that the Applicant has not been entirely forthcoming about his financial affairs, I do not find it appropriate to lower the amount of the retroactive award.

[55] Following the close of submissions and while preparing these reasons, I asked the parties to calculate the total amount that would be owing from the date of separation based on (a) an imputed income of the minimum wage in effect at the relevant times; and (b) crediting the Applicant father for child support already paid.

[56] The parties separated on February 26, 2021. I decline to order the Applicant to pay retroactive child support for the month of February 2021. I therefore accept the following calculation received from the Respondent mother showing the total amount of child support as follows:

a) From March 2021 to September 2021: $613.90 per month b) From October 2021 to December 2021: $617.77 per month c) From January 2022 to September 2022: $644.84 per month d) From October 22 to September 2023: $664.75 per month e) From October 2023 to June 2024: $707.06 per month

[57] The total child support payable from February 2021 to June 2024 is $26,294.71. During this period the Applicant paid child support of $8,402.00.

[58] I order the Applicant father to pay retroactive child support in the amount of $17,892.71.

e. Section 7 expenses

[59] The Respondent mother seeks an order that the parties shall pay their proportionate share of the children’s special and extraordinary expenses. The Applicant objects to this largely on the basis that the Respondent has greater earning potential than the Applicant. He gave no other reason why the parties should not share equally in extraordinary expenses.

[60] I order the parties to contribute to the children’s section 7 expenses, other than extraordinary extracurricular expenses, on a proportionate-to-income basis. Until such time as there is a material change in circumstances, each party shall share in these expenses equally. The party requesting contribution towards an expense shall provide the other party with proof of the total expense being claimed. The other party shall then pay the requesting party their share of the expense within thirty days of receiving said proof.

f. Equalization

[61] This case raised several equalization claims.

a) The Nigerian Property

[62] The first claim concerns a property in Nigeria that the Applicant father alleges the Respondent owned at the time of separation and, indeed, continues to own. He argues that it thus should be considered in any equalization calculation.

[63] I am troubled by the Respondent’s responses on this issue. In her Affidavit sworn on October 2, 2023, the Respondent stated: “I have never owned any Real Estate Property in Nigeria”. However, before this Court, the Respondent admitted that she had purchased a parcel of land in Lagos in or around 2008, that a “half-building” was constructed there, but that the Applicant had sold it in or around 2010. The Respondent said that she had forgotten this fact, because she did her utmost to avoid thinking about events that were painful to her.

[64] I do not find the Respondent’s account of how she suddenly remembered owning a property in Nigeria credible.

[65] Nevertheless, the only evidence offered by the Applicant in support of any particulars of this property is (a) a verbal description of it; and (b) some photographs of the Applicant, occasionally with the Respondent and their children, in front of what appears to be a house door. The photographs had no identification markers for the house. The Applicant provided no other documentary evidence, such as a title search, to support his claim that the Respondent owned property at the time of separation.

[66] While the Respondent has an obligation to disclose all property she owned as at the date of separation, her evidence is that she disposed of the Nigerian property with the Applicant’s assistance/consent. The Applicant thus bears the burden to prove any asset that he claims the Respondent owns. Despite the Respondent’s unsatisfactory testimony, I do not find that the Applicant has met his burden of proof. Accordingly, the alleged Nigerian property does not figure into the parties’ equalization.

ii. Net Family Property

[67] The Applicant father claims that he is owed an equalization payment of $4,171,86. The Respondent mother claims that she is owed an equalization payment of $3,407.47.

[68] The Applicant claims that his net family property is zero. In an updated Form 13.1 sworn on May 8, 2024, the Respondent claims that her net family property is $3,653.94.

[69] The Applicant disputes the Respondent’s allocation of the Blue Book value for his 2018 Chevrolet Equinox of $13, 363.00. The Applicant claims that the value is lower ($10,000) because he uses this car as an Uber/Lyft driver. The Applicant produced no evidence to support this amount. I am therefore not persuaded on a balance of probabilities that the Applicant’s Net Family Property is zero, as he claims. Taking into account the Blue Book value for the 2018 Equinox, I find the Applicant’s property value to be $27,143.57 which, subtracting his stated debts of $24,251.79, results in net family property of $2,891.78.

[70] I order the Respondent mother to pay the Applicant equalization in the amount of $762.16.

iii. The Disputed $15,000

[71] The final claim under this issue set is for $15,000 that the Respondent says she gave to the Applicant at his request, which she now claims must be reimbursed to her as an unequal division of property.

[72] Based on my conclusion regarding this claim, I will take the Respondent’s claims at face value. The Respondent says that on or about January 30, 2020, the Applicant asked her to withdraw $15,000, that she had received from OSAP, to put towards the purchase of a family home. After the Respondent agreed, the Applicant did not use the funds as agreed. Instead, and at most, the Applicant father put the money in a property plan offered by a real estate development company in which the investors would receive an opportunity to purchase a completed unit at some future date. The project has not yet been completed.

[73] The Respondent mother acknowledges that this event took place prior to separation. As such it is presumed to have been part of a married couple’s joint decision-making and not easily amenable to a legal remedy. Nevertheless, she states that the Applicant’s conduct was sufficiently wrongful that she is owed some recompense by way of an unequal property division. While she did not actually use this word, the Respondent appears to argue that an equal division of family property would be unconscionable: Serra v. Serra, 2009 ONCA 105.

[74] The caselaw the Respondent cited to me concerns situations where one spouse was alleged to have profoundly betrayed the marital relationship, for example, by engaging in an affair and diverting household income to that activity: Frick v. Frick, 2016 ONCA 799. I was provided no caselaw for a situation analogous to the case at bar. The parties’ initial agreement was to put the $15,000 towards the purchase of a family home. It appears that the Applicant used the money to fund a different real estate opportunity. The Respondent did not provide evidence the funds were put to a different use. While the real estate project was not the exact scenario discussed between the parties, neither is it so removed from that scenario as to trigger the remedy of unequal division, which the Respondent admits is rarely imposed.

[75] On a balance of probabilities, I am not persuaded that the prior withdrawal of $15,000 justifies an unequal division of property.

g. Other issues

[76] The Respondent mother asks for an order requiring the Applicant to obtain extended health and dental coverage for the children, and a life insurance policy. The Applicant raised no objections to this. I order the Applicant to obtain extended health and dental coverage, and a life insurance policy.

[77] The parties each sought costs. They have achieved divided success. I acknowledge that the Respondent has prevailed on more issues than the Applicant. However, I did not find the Respondent to be entirely forthcoming in her answers to this Court. It is possible that much of the dispute (and trial time) over the Nigerian property could have been avoided had the Respondent initially addressed the issue in the way that she did on the stand. The Respondent was also unsuccessful in her argument for an unequal division of property. I therefore order the parties to bear their own costs.

Part IV: Order to Issue

[78] This Court makes the following final order:

a) A divorce order shall issue in the usual form. b) The Respondent mother shall exercise sole-decision making with respect to the children subject to the following exceptions: i. Whichever parent has physical custody of the children may make decisions about emergency medical issues requiring immediate attention. ii. Either parent may travel internationally with the children without consent of the other. iii. The travelling parent will provide the other parent with two weeks’ notice that shall include an itinerary with the dates and location of travel, and contact information for the children. iv. The children’s passports shall remain in the Respondent’s custody to be exchanged as needed. Parental consent required to executive passports and other travel documents shall not be unreasonably withheld. c) Commencing on the date of this order, the parties shall contribute to the children’s section 7 expenses, other than extraordinary extracurricular expenses, on a proportionate-to-income basis. Until such time as there is a material change in circumstances, each party shall share in these expenses equally. The party requesting contribution towards an expense shall provide the other party with proof of the total expense being claimed. The other party shall then pay the requesting party their share of the expense within thirty days of receiving said proof. d) For the purposes of determining child support, the Ontario minimum wage shall be used as the Applicant’s income. e) The Applicant shall pay $17,892.71 in retroactive child support. f) Commencing July 1, 2024 and continuing on the first day of each month that follows until September 30, 2024, the Applicant shall pay child support in the amount of $706.06 per month. g) Commencing October 1, 2024, and continuing on the first day of each month that follows until the minimum wage is changed or the Applicant earns more than the minimum wage, the Applicant shall pay child support in the amount of $732.59 per month. h) Unless the support order herein is withdrawn from the Office of the Director, 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) A Support Deduction Order shall issue. j) The Respondent mother shall pay to the Applicant father an equalization payment of $762.16. k) The Applicant father shall obtain and assign the children as beneficiaries under his extended health and dental coverage for as long as he is obligated to make child support payments. l) The Applicant father shall maintain and/or obtain a life insurance policy in an amount required to secure his child support obligations or policies and shall designate the Respondent mother as irrevocable beneficiary for such policy or policies to secure his support obligations. m) This order bears post-judgment interest at the rate of 5.3% per annum, effective from the date of this Order. Where there is a default in payment, the payment in default shall bear interest only from the date of default. n) The parties shall bear their own costs.

Released: June 19, 2024 Mathen, J.