Jassem v. Shaker, 2011 ABQB 122

Court of Queen ’ s Bench of Alberta Citation: Jassem v. Shaker, 2011 ABQB 122 Date: 20110301 Docket: FL03 26921 Registry: Edmonton Between: Mouhammed Jassem Applicant - and - Najlaa Shaker Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] These parties were married in 1996 and separated in 2010. There are currently four children of the marriage ranging in ages from 4 to 13 years of age. The children primarily reside with the mother.

The father has applied to have unsupervised access to all the children of the marriage starting this weekend. The mother submits that a period of supervision of the Applicant’s access on every second weekend is required as the children have suffered considerable emotional distress by the Applicant’s actions. [ 2 ] The mother deposes to having suffered continual emotional abuse during the course of their fourteen plus year marriage, and the children of the marriage she submits have also become fearful for their safety.

To end this abusive relationship, the mother took residence at a women’s shelter with the children in October 2010. She then obtained an Emergency Protection Order, which was confirmed on October 20, 2010.

[ 3 ] The father has not seen the children since the mother took the children to the Shelter in early October. [ 4 ] On December 13, 2010 an Interim Parenting Order was granted in this Court giving the Applicant father parenting time every Saturday from noon to 4:00 p.m., and every other Sunday from noon to 4:00 p.m., with the proviso that parenting time had to be supervised by a third party to be agreed upon between the parties.

Apparently the parties have never been able to agree upon a supervisor since the December Order, and it is now the father’s position that he must have unsupervised access to the children. [ 5 ] The mother argues that there have been considerable efforts to agree upon a third party to supervise the visits, and following a period of supervised access the mother would be prepared to consent to unsupervised access provided that the reports of the supervisor were positive.

The mother is also of the view that the children should receive counselling before unsupervised access, both separately and with the father, to facilitate the rebuilding of the relationship between child and father. This is especially the case for the eldest 13 year old son who continues to state that he does not wish to see his father at any time. Conclusion - Access [ 6 ] It appears that during the course of the long term relationship, the father was around the children on a daily basis. The father already has the supervised access Order from the Court from December 2010.

However the parties have never been able to agree on a supervisor since that Order with the result the father has not seen the children since October 2010. [ 7 ] While there are allegations of a serious nature in some cases with respect to the behaviour of the father, none of the serious allegations relate specifically to any of the children directly.

Another concern of the mother was that the father would somehow take the children out of the jurisdiction, but this Court can address that problem by directing that the children not be removed from the City of Edmonton. [ 8 ] It is common ground that both these parties’ financial situation is very dire at this time, so that any third party supervisor would represent a prohibitive expense.

I conclude that given the difficulties that these parties have had in arranging for the independent third party supervisor, and the prohibitive cost of such a supervisor relative to the budgets of these individuals, that the father should be given parenting time on an unsupervised basis to his children every Saturday from noon to 4:00 p.m., and every other Sunday from noon to 4:00 p.m. commencing immediately. [ 9 ] If the 13 year old son does not wish to see the father, he does not have to do so and I would recommend counselling for the child and the father if this event were to actually occur.

Child and Spousal Support [ 10 ] The mother is on a fixed income and receives approximately $2,500 a month in benefits, but must pay $925 of that to rent. Accordingly she is left with about $1,600 amount to support herself and the four children. She seeks an imputation of income to the father of $30,000 a year, with child support payable based on that imputed annual income. She also seeks $1,000 a month in spousal support. [ 11 ] The father had worked throughout the course of the marriage, most often as an unlicensed mechanic.

However since the separation, he decided to go back to school to become a licensed mechanic. Unfortunately he must finish a six month English course first, and thereafter complete grade 10 Math and grade 10 English prior to taking his apprenticeship mechanic exam. The father estimates that it will take him at least a year to complete his studies and become a licensed mechanic, but I think the better view that it will probably take two years before he will complete the formal education portion of his apprenticeship.

[ 12 ] In the mean time the father says that he receives a total of $463 a month to live on, from which $130 of rent is deducted. He submits that he cannot obviously not pay either child support nor spousal support, and that the mother is actually in a much better financial position than he is. [ 13 ] The mother deposes that the father has always received cash payments when he worked as an unlicensed mechanic, and that he never declared or paid tax on these cash payments.

The father submits that the mother produces no evidence in this regard, although he acknowledges that he will be commencing part-time employment as a mechanic’s helper on March 1, 2011, working 2 to 3 hours a day at $9 - $10 an hour. [ 14 ] Counsel for the mother also advised the Court that the father took the only vehicle away from the family upon separation, and that she is forced to essentially taxi her children extensively since she has no vehicle.

Counsel for the mother also submits that the Court can take judicial notice of the fact that the father is not likely living on only $300 a month for the next year or two, and that he must be working on the side for cash that he does not declare. Conclusion - Child and Spousal Support [ 15 ] Counsel for the father has suggested that the issue of child and spousal support can be adjourned until full financial disclosure has taken place, and examinations on affidavit completed.

I conclude however that it is not likely that full financial disclosure, and examinations on affidavits will yield any more information then is presently available to the Court at this time. [ 16 ] Counsel for the father argues that it is natural that his client would want to go back to school and become a licensed mechanic. However I conclude that the timing of the husband’s decision to become educated as a licensed mechanic is clearly suspicious.

The father’s counsel submits that however suspicious it may appear, it does not represent an “underemployment” situation as such. [ 17 ] However given the evidence before me, I conclude that the wife is entitled to additional financial support represented by child support payments based on a reasonable $30,000 annual imputed income given the husband’s deliberate attempt to avoid child support: Hunt v.

Smolis-Hunt , 2001 ABCA 229 . [ 18 ] The mother never agreed to this sudden career change, and the father made at least $30,000 until the parties’ separation given the cash nature of the unlicensed mechanic business. It is also unreasonable to assume that anyone can live on only $300 a month. [ 19 ] Hunt v. Smolis-Hunt mandates that the Court should impute income to a spouse in circumstances where the spouse is “intentionally underemployed or unemployed”. Section 19(1)(

a) of the Guidelines should be interpreted to impute income where the obligor has pursued a deliberate course of conduct for the purpose of evading child support obligations, where there is either proof of that intention, or where there are as here circumstances which permit the Court to infer that intention. [ 20 ] The matter of child support can be revisited when the father does finish his education portion of his apprenticeship which he says will be in approximately one year. Heard on the 23 rd day of February, 2011. Dated at the City of Edmonton, Alberta this 1 st day of March, 2011.

Donald Lee J.C.Q.B.A. Appearances: Katie Noel for the Applicant Peter J. Mawson Moustarah & Company for the Respondent