Reasons for Decision
Court File No.: FS-23-33685
Date: May 22, 2025
Superior Court of Justice – Ontario
Re: Tirhas Yowhannes, Applicant
And: Lerrill L. Jones, Respondent
Before: Lori S. Kraft
Counsel:
- A. Sam Zaslavsky, for the Applicant
- Respondent, self-represented
Heard: In writing
Introduction
[1] This is an uncontested trial in which the applicant wife seeks an order for sole decision-making responsibility for the parties’ two children; the right to obtain government-issued documentation for the children without the need for the consent of the respondent husband; the right to travel with the children without obtaining the husband’s consent; an order for child support for the two children based on the husband being imputed with an annual income of $35,766; and a divorce.
[2] The parties were married for 3 ½ years. They have two children of their marriage, currently ages 9 and 7. Since the separation on February 14, 2019, the husband has not seen the children and has had no contact with them.
Issues to be Determined
[3] The issues for me to decide on this uncontested trial are:
a. Whether it is in the children’s best interests for the wife to have sole-decision making responsibility for them?
b. Whether it is in the children’s best interests for the wife to be permitted to travel with the children and obtain their government-issued documentation without the need for the husband to consent?
c. Whether the husband should be ordered to pay child support to the wife for the children from November 1, 2022 onward, and if so, in what amount?
Background
[4] The parties were married on September 30, 2015. They met in Saudi Arabia. Six months into the relationship, they were married in Ethiopia, where the husband was born.
[5] They have two children of the marriage, M., age 9 and A., age 7.
[6] The parties separated on February 14, 2019. At that time, the oldest child was not even 3 years of age.
[7] This was a first marriage for the wife. It was a second marriage for the husband. He was divorced in Arizona in 2014.
[8] The wife describes a marriage plagued by family violence that she suffered at the hands of the husband. She describes being forced to have sex against her wishes; being physically abused by the husband, including being assaulted and choked; and being threatened, falsely accused of infidelity, and being subjected to degrading comments.
[9] According to the wife, the events in and around the time of separation were as follows:
a. In February 2019, the wife travelled to Ethiopia to visit her family with the children. While she was there, her uncle passed away in Ethiopia and resulted in her staying a few days longer so she could attend the funeral. The husband became enraged and demanded that the wife return with him to Saudi Arabia. The wife decided to separate and instead of returning with the husband to Saudi Arabia, she took the children to the United States. This was possible because the husband is a U.S. citizen making the children also U.S. citizens.
b. A few months later, the husband advised the wife that he had married another woman and that he cancelled the wife’s Visa to Saudi Arabia. The wife explains that this left her with no alternative but to return to Ethiopia or remain in the United States. The wife describes that the husband threatened her life if she stayed in the United States, at which time, she made plans to immigrate to Canada by June 11, 2019. At some point in 2020, the husband advised the wife that he was taking medication to address his mental health concerns. He expressed his love and affection for the children to the wife, but never asked to see them or made any plans to visit with the children.
[10] The husband has not seen the children since February 14, 2019, and has expressed no desire or interest in seeing them.
[11] The husband has never paid child support to the wife.
[12] On October 20, 2022, the wife issued the within Application, seeking, among other things, a divorce, child support, decision-making responsibility, and the right to travel with the children and obtain government-issued documentation for the children without the need for the husband to consent.
[13] At the time the wife issued the Application, the husband was residing in Arizona. The parties had some contact by WhatsApp messaging.
[14] The wife’s counsel retained a process server in Arizona to attempt to serve him personally with her Application in Arizona as required by the Family Law Rules. When the last known address proved to not be where the husband was residing, an investigation was undertaken to find the husband’s address in Arizona. Two other addresses were found and attempts to serve the husband with the Application were made numerous times.
[15] Ultimately, the wife obtained an order for substituted service from Sharma, J., dated July 20, 2023, to enable her to serve the husband with the Application through WhatsApp message at his phone number and via his email address.
[16] In accordance with the substituted service order, the wife arranged for a process server, namely, Alla Korynkova, to serve the husband with her Application and Form 35.1 Parenting Affidavit. The affidavit of service, sworn on June 27, 2023, confirms that the husband was served by email on June 26, 2023 at 3:26 p.m.
Issue One: Sole Decision-Making Responsibility
[17] Since the parties are married, the Divorce Act, RSC 1985, c 3 (2nd Supp) (“DA”) is the statute that governs parenting rights.
[18] Pursuant to s.16(1) of the DA, the court shall only take into consideration the best interests of a child in making a parenting order.
[19] In considering the best interests factors, the court is required to give primary consideration to the children’s physical, emotional and psychological safety, security, and well-being: s.16(2).
[20] The best interests factors are listed in s.16(3) of the DA. In considering the factors relevant to this case, I find as follows:
a. The child’s needs, given the child’s age and stage of development, such as the child’s need for stability:
i. The wife has been the children’s sole and primary caregiver since they were born.
ii. At the time of separation, the children were ages 3 and 1.
iii. The father has not seen or had any contact with the children since February 14, 2019.
iv. Given their current ages of 9 and 7, it is in the children’s best interests to remain in the care of their mother and for her to have sole decision-making responsibility in relation to the major decisions that impact the children.
v. It would be very disruptive for the children’s stability if the husband were granted decision-making rights or responsibility given that he has demonstrated no interest in seeing the children or spending any time with them.
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:
i. The children have a close and loving relationship with the wife. They have only known being in her primary care.
ii. The children’s relationship with the husband has been drastically affected by the fact that the husband has not seen or spent any time with them in 6 years - since February 2019.
c. Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse:
i. The wife would be willing to support the children having a relationship with the husband. However, the husband has not demonstrated any interest or intention in having any relationship with them.
d. The history of care of the child:
i. The history of care of both children are that they have been in the primary care of the wife, she has looked after all of their needs and interests.
ii. The husband has demonstrated no history of care of the children.
e. The child’s views and preferences, given due weight to the child’s age and maturity, unless they cannot be ascertained:
i. The children are ages 9 and 7. Their views and preferences have not been ascertained.
ii. The 7-year-old is too young to have expressed views and preferences.
iii. The 9-year-old could reasonably expect to provide her views and preferences, however, there is no application before the court regarding parenting time. Rather, this application is to determine decision-making responsibility.
f. 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 wife has demonstrated that she is able and willing to look after both children, given that they have been in her primary care since birth.
ii. The husband, on the other hand, has taken no steps to spend time with the children and has not paid any child support. He has not, therefore, demonstrated any ability or willingness to care for or meet the needs of the children.
g. The ability and willingness 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:
i. The mother expresses safety concerns about having to communicate with the father. Given the past family violence, the mother does not believe the husband would be able to communicate or cooperate with her with respect to any matter affecting either child.
h. Any family violence and its impact on, among other things, and (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:
i. The wife describes a relationship plagued by family violence she suffered at the hands of the father. She describes being physically and verbally attacked and being subject to coercive and controlling financial behaviour by the husband.
ii. Given the past family violence, the mother has concerns about the ability and willingness of the father to care for and meet the needs of the children and the appropriateness of a court order that would require her to cooperate with the husband on issues affecting the children. The court has similar concerns about the husband’s ability to cooperate with her on matters relating to the children.
i. In terms of the family violence, the wife also has concerns about the children having been exposed to verbal family violence when they were infants and about the ongoing physical, emotional, and psychological harm or risk of harm to the children if the husband were to be granted decision-making responsibility in relation to the children.
j. Finally, the wife deposes fearing for her own safety and that of the children.
[21] For all of the above reasons, I find that it is in the children’s best interests for the wife to have sole decision-making responsibility of them.
Issue Two: Travel and Documentation Without Consent
[22] Pursuant to s. 16.1(4)(d) of the DA, the court may provide for any other matter that the court considers appropriate in a parenting order. Further, s.16.1(5) of the DA provides that the court may make an order for a definite period or until a specified event occurs and may impose any terms, conditions, and restrictions that it considers appropriate.
[23] The wife was not able to locate the husband when she tried to serve him with her Application. The husband was totally non-responsive and chose to ignore these court proceedings. There is no guarantee that if the wife were required to obtain the husband’s consent to travel that he would respond to her in advance of any planned travel. This would then result in the children potentially missing out on a travel opportunity.
[24] Given that the husband has chosen not to have a relationship with the children and has absented himself from their lives, it follows that the wife ought to be able to apply for government issued documentation such as a passport, birth certificate, social insurance number, etc. without the need for the husband’s signature.
[25] Further, it follows that it is in the children’s best interests to be permitted to travel with the wife in and outside of Canada without requiring the husband to consent to such travel.
Issue Three: Child Support
[26] Section 15.1(1) of the DA gives the court jurisdiction to make an order requiring a spouse to pay for the support of any or all children of the marriage.
[27] A court making a child support order shall do so in accordance with the applicable child support guidelines: s.15.1(3).
[28] Section 3(1) of the Federal Child Support Guidelines, SOR/97-175 (“CSG”) provides that the amount of a child support order for children under the age of majority is the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought. It also includes any amount owing under s.7 of the CSG.
[29] During the marriage, the husband worked as an importer/exporter for the U.S. Armed Forces. The wife does not know the level of income he earned.
[30] However, she asks the court to impute income to the husband because the wife has no income information or financial disclosure from the husband.
[31] Pursuant to s.19 of the CSG, the court is able to impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances includes, a spouse failing to provide income information when under a legal obligation to do so.
[32] The wife asks the court to impute the husband with an income equivalent to minimum wage of $35,799 year.
[33] The CSG tables provide that based on an income of $35,799 a year, the husband is obliged to pay table child support to the wife for the two children of the marriage in the sum of $543.00 a month.
(a) Should the husband be imputed with an income of $35,799 a year?
[34] Section 19(1)(f) of the CSG provides the court with the jurisdiction to impute the husband with an income if the spouse has failed to provide income information when under a legal obligation to do so.
[35] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this legal obligation, a parent must earn what he or she is capable of earning: Drygala v. Pauli, 2022 ONCA 41848, para 32.
[36] Parents have an obligation to support their children. To meet this obligation, they must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed: Drygala v. Pauli.
[37] In this case, the husband declined to respond to the wife’s Application and failed to provide income information or any financial disclosure to the wife in accordance with the DA and the Family Law Rules. Accordingly, it is open to me to impute income to him under s.19(1)(f) of the CSG.
[38] There is no evidence on record as to what the husband earned prior to the parties’ separating. On this basis, the wife seeks an order that the husband be imputed with a minimum wage income on the basis that he is able bodied and capable of working full-time.
[39] I am satisfied in these circumstances that the husband has capacity to earn a minimum wage income. There is no evidence of any health or family-related reason why he is not capable of doing so.
(b) Should the husband be ordered to pay retroactive child support to the wife?
[40] The question then becomes, when does the child support obligation begin?
[41] The wife asks that the child support order start on November 1, 2022, since she issued her Application on October 22, 2022.
[42] In Michel v. Graydon, 2020 SCC 24, para 41, the Supreme Court of Canada confirms that child support obligations arise upon a child’s birth or the separation of their parents.
[43] Retroactive awards are a recognized way to enforce such pre-existing, free-standing obligations and to recover monies owed but yet unpaid: Michel v. Graydon, at para. 41.
[44] In D.B.S. v. S.R.G., 2006 SCC 37, the Supreme Court of Canada endorsed certain important principles governing orders for child support (including retroactive child support) as follows:
a. Child support is the right of the child, which right cannot be bargained away by the parents, and survives the breakdown of the relationship of the child’s parents (para. 38);
b. Child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together (para. 38);
c. The child support owed will vary based upon the income of the payor parent, and is not confined to furnishing the “necessities of life” (paras. 38‑45);
d. Retroactive awards are not truly “retroactive”, since they merely hold payors to the legal obligation they always had to pay support commensurate with their income (para. 2);
e. Retroactive awards are not confined to “exceptional circumstances” or “rare cases” (para. 5); and
f. In determining whether to make a retroactive award, the payor parent’s interest in certainty in his/her obligations must be balanced with the need for “fairness and . . . flexibility”. A court should consider whether the recipient parent’s delay in seeking retroactive support was reasonable in the circumstances, the conduct of the payor parent, the circumstances of the child, and the hardship the retroactive award might entail (para. 133).
[45] S.15.1 of the DA provides the Court with jurisdiction to make a retroactive award. In making a determination as to whether a retroactive award is appropriate in this case, the Court looks to the four D.B.S. Factors:
a. Did the recipient delay in seeking child support and was there a justified reason for the delay?
b. The conduct on the part of the payor and whether it was blameworthy?
c. The circumstances of the children; and
d. The hardship, if any, on the payor if a retroactive award was made.
[46] In applying the D.B.S. factors to this case, I find as follows:
Reasons for the delay
a. The wife did not issue her Application for child support until October 2022 and the parties separated in February of 2019.
b. The cases show a vast array of reasons that courts have accepted as justifying a delayed application for child support, including a fear of reprisal/violence from a payor parent; and lack of information over the payor parent’s income.
c. In this case, the wife did not have a serious delay in starting her Application. In any event, she is only seeking that child support start on November 1, 2022, the month after which the Application was issued by the court.
Payor Parent’s Conduct
d. The husband did engage in blameworthy conduct given that he failed to pay any child support to the wife. “When a payor parent fails to pay the appropriate amount of child support, the recipient parent is left to shoulder the burden.” Michel v. Graydon, at para. 31
e. D.B.S. purposively provided an expansive definition of blameworthy conduct, being “anything that privileges the payor parent’s own interests over [their] children’s right to an appropriate amount of support” (para. 106).
f. “Further, a payor parent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from such conduct” (D.B.S., at para. 107).
g. Further, where the strategy for avoiding child support obligations takes the form of inadequate or delayed disclosure of income, the effect on the child support regime is especially pernicious. This is because the methodology adopted by the Federal Child Support Guidelines, SOR/97‑175, which are expressly incorporated in the FLA, results in information asymmetry: Michel v. Graydon, at para. 32.
h. At any given point in time, therefore, the payor parent has the information required to determine the appropriate amount of child support owing, while the recipient parent may not. Quite simply, the payor parent is the one who holds the cards. While an application‑based regime places responsibility on both parents in relation to child support (D.B.S., at para. 56), the practical reality is that, without adequate disclosure, the recipient parent will not be well‑positioned to marshall the case for variation. Michel v. Graydon, at para. 32.
i. Therefore, the husband’s failure to respond to the wife’s Application and to accurately disclose his income at the time his Answer was due under the Family Law Rules, constitutes blameworthy conduct, which justifies an order for retroactive child support.
Children’s Circumstances
j. In terms of the children’s circumstances, there is no evidence on record about the hardship they encountered because of the husband’s non-payment of child support.
k. However, the wife has indicated that she sacrificed tremendously to provide for the children and she was in a full-time educational program to upgrade her skills and be able to earn an ongoing income to provide support to the children.
Hardship on the Payor if a Retroactive Award was made
l. The final factor being the hardship the retroactive award might cause the payor parent is to be considered. Michel v. Graydon explains, if there is the potential for hardship on the payor’s part, but there is also blameworthy conduct which precipitated or exacerbated the delay, it may be open to the courts to disregard the presence of undue hardship (D.B.S., at para. 116; Tschudi v. Tschudi, 2010 BCCA 170, paras 4-5).
m. Again, there is no evidence on record about the husband having any hardship if ordered to pay retroactive child support because he had failed to respond to the wife’s Application and he has failed to provide financial disclosure as required by the Family Law Rules.
[47] Accordingly, I find it appropriate to make a child support order requiring the husband to pay child support to the wife for the two children of the marriage effective November 1, 2022.
[48] Based on a minimum wage income of $35,799 a year, the husband’s retroactive obligation under the CSG tables for two children amounts to $543 a month. For the period November 1, 2022 to and including May 1, 2025, the husband owes the wife retroactive child support in the sum of $16,833, being 31 months x $543.
Order
[49] Accordingly, this court makes the following order:
a. Pursuant to s.16.1(1) of the Divorce Act, the applicant shall have sole decision-making responsibility with respect to all major decisions that impact the children, including but not limited to, health and dental; educational; extra-curricular activities; and religion.
b. Pursuant to s.16.1(4) of the Divorce Act, the applicant shall be permitted to travel inside and outside of Canada with the children without the need for the consent of the respondent.
c. Pursuant to s.16.1(4) of the Divorce Act, the consent of the respondent to obtain any government-issued identification for either child is hereby dispensed with.
d. Pursuant to s.15.1(4) of the Divorce Act and s.19 of the Child Support Guidelines, the respondent shall pay the applicant retroactive child support in the sum of $16,833, which is calculated on the basis of the respondent being imputed with an income of $35,799 a year, resulting in a table child support obligation of $543 a month for the period starting November 1, 2022 and including May 1, 2025.
e. Pursuant to s.15.1 of the Divorce Act and s.19 of the Child Support Guidelines, starting on June 1, 2025 and on the first day of each following month until further court order or agreement of the parties, the respondent shall pay the applicant child support in the sum of $543.00 a month, representing the table child support for two children of the marriage based on an imputed income for the husband of $35,799 a year.
f. The applicant shall be permitted to file for divorce based on an uncontested basis using a Form 36, affidavit for divorce.
g. SDO to issue.
Lori S. Kraft
Date: May 22, 2025