Ghoul v. Habhab, 2011 ABQB 232

Court of Queen ’ s Bench of Alberta Citation: Ghoul v. Habhab, 2011 ABQB 232 Date: 20110407 Docket: 4803 147890 Registry: Edmonton Between: Zeinab El Ghoul Also Known As Zeinab Ghoul Plaintiff - and - Sami Habhab Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] These parties married in October 1997, and moved to Canada in 2000. They separated in March 2007, and a Divorce Judgment was granted in May 2010.

There are three children of the marriage whose approximate ages are currently 10 ½, 9 ½, and 7. [ 2 ] The mother has had care and control of the children since the separation. The mother deposes in her Affidavit of June 2, 2010 that the parties separated on March 27, 2007, after the father assaulted her. Criminal charges were laid as a result of that incident, but the father left for Lebanon in May 2007, prior to the matter being heard in Court. He did not return from Lebanon until approximately three years later in April 2010.

[ 3 ] The mother obtained a Divorce Judgment without oral evidence on May 31, 2010, which granted her sole custody of the children, with the issue of child support reserved. When the father returned to Canada he brought an application for specified access with the children in June 2010. The mother filed a cross-application for interim child support. When the application and the cross-application were spoken to on August 12, 2010, a without Prejudice Interim Order was made on the following terms: (

a) the father was to have bi-weekly contact visits every second Sunday; (

b) child support obligations were based on a pre-disclosure income imputed at $20,000; (

c) s. 3 child support of $429 monthly was to be paid commencing September 1, 2010; and (

d) s. 7 expenses of $378 was agreed upon on the basis of an imputed 58.82% proportionate share of the expenses, payable by the father commencing September 1, 2010. [ 4 ] Subsequent to the August 12, 2010 Interim Order, the parties agreed to remove the condition for supervision of the father’s parenting time with the children, such that he now exercises unsupervised bi-weekly contact with the children every second Sunday. [ 5 ] The father filed an application on November 23, 2010, seeking variation of the Interim Order of August 12, 2010.

The mother’s current application is that the father pay child support retroactive to April 1, 2007, along with his proportionate share of s. 7 expenses retroactive to April 1, 2007. The mother also seeks a permanent restraining order to include the children, save and except for any access visits. Parenting Time [ 6 ] The father takes the position that the present

schedule is not in the best interests of the children in that the amount of time the father has with the children is being unreasonably limited and is of insufficient duration. The father requests that the visits be extended with the children in frequency and length.

He seeks parenting time with the children on the following basis: (1) every Sunday from 10:00 a.m. to after supper; (2) additional weekday time allowing the father to pick-up the children at school one day each week until after supper; (3) the father asks for the right to attend at the children’s school to see the children and to have access to school information and activities of the children; (4) the father wishes to be allowed to contact with the children by telephone one evening per week. [ 7 ] The mother’s Affidavit filed June 2, 2010 alleges a history of domestic violence, which continued even after the father went back to Lebanon for three years.

It is alleged that while he was in Lebanon, the father continued to harass the mother with threatening phone calls and messages, including threats to her life. [ 8 ] Since the June 2, 2010 Affidavit, the father’s criminal charges have been resolved with a 12 month peace bond, which the

mother agreed to. [ 9 ] The mother objects to giving the father access every Sunday because as a hairdresser she is only off work on Sunday’s, and therefore would like at least two Sunday’s a month with the children.

The mother objects to the father picking up the children from school as it is too disruptive to her schedule. [ 10 ] I conclude that the father can have additional access every second Saturday, which combined with his present access very second Sunday, gives him four days per month of parenting time with the children, instead of the current two days a month that he has. [ 11 ] I further conclude that the father will have telephone access with the children at least once a week, and that the mother will provide the father with all relevant school information such as report cards and information on special events at the school, all on a timely and current basis. [ 12 ] The permanent Restraining Order application will be adjourned sine die, as it is not necessary given the current peace bond.

Following the expiration of the 12 month peace bond agreed to by the mother, her application for a Restraining Order can be reviewed again. Child Support [ 13 ] Prior to the separation in 2007, the father had worked as a cab driver and as a cook in a work camp in northern Alberta. At the time of the separation, the father was working as a taxi driver as he had lost his position as a cook due to injuries he suffered in a motor vehicle accident while driving his taxi. [ 14 ] After the father returned to Canada in 2010 after three years in Lebanon, he again returned to driving taxi.

In his Affidavit of November 23, 2010, he estimates that he earns a net monthly taxable income of between $1,191 and $1,321 a month driving taxi. When he lived in Lebanon from May 2007 to April 2010, he deposes that he was not working and was unemployed, residing with family in part due to the mental stress of the marriage breakdown and also because he could not find suitable employment. [ 15 ] No tax returns were filed while the father was in Lebanon. His 2004, 2005 and 2006 tax returns, which are the last complete tax returns he filed in Canada, show annual income from driving taxi of between $7,500 to $8,100.

Since the father has barely completed a full year of employment since his return to Canada, he submits that income should be imputed to him of between $14,000 and $16,000 a year. His present monthly budget estimates his expenses at approximately $1,100 a month. [ 16 ] During the hearing of this matter on February 25, 201, the Court requested that it be supplied with further particulars as to the father’s injury as well as his current work and income situation.

The father was recently injured in a motor vehicle accident on January 16, 2011, as a result of which he suffered injuries that required him to be off work for a period of time. [ 17 ] By way of supplemental submissions dated March 19, 2011, the husband’s counsel advises that he continues to be treated for those January 2011 injuries, and was directed to remain off work for a period of six weeks from January 20, 2011. Due to his present problems, he has returned to work on reduced hours currently. He has also applied for

Section B disability benefits from his vehicle insurer, however he has not yet been in receipt of any

Section B benefits. The father submits that the mother’s claim for retroactive support arrears be limited to the date of filing of her application in June 2010, and given his current predicament his income should be imputed at between $14,000 and $16,000 a year. [ 18 ] I note that although the father has missed approximately six weeks of full-time employment, he will receive

Section B disability payments of approximately $400 a week for most if not all of the weeks that he missed or misses work. Even $400 a week of

Section B benefits over a period of one year amounts to approximately $20,000, which is what I conclude the father will likely receive on an annual basis as a full-time taxi driver, or as a recipient of

Section B benefits.

[ 19 ] When the father did file income tax returns prior to leaving for Lebanon, I conclude that his income claimed at that time was unrealistically low, and it was not likely that he and his wife at the time could have supported a family of five on the mother’s limited income, and his declared income of between $7,500 and $8,100.

The mother’s Affidavit filed November 30, 2010, also alleges that the father earned a great deal of undeclared income and made a practice of sending cash to Lebanon. [ 20 ] I conclude that the father’s current taxi records are unreliable and incomplete, and his submissions that his income should be imputed at between $14,000 and $16,000 likely does not take into account tips earned on the job.

Accordingly, I impute a current annual income to the father of $20,000 a year. [ 21 ] As for the retroactive claim, the father did not pay any child support while he was away in Lebanon for three years, and it is likely that as he was living with his parents, he had little or no expenses even if he could not, or did not work.

Although the father says in his Affidavit of November 23, 2010 that he did not work due to the lack of employment opportunities in Lebanon, and because of the stress that arose due to the breakdown of his marriage, it is difficult to understand how he could live in Lebanon for three years and not earn any employment income. [ 22 ] In any event, I conclude that the father cannot simply run away to Lebanon as he did and abandon his family entirely for three years.

I conclude that the father will pay child support for the three children of the marriage retroactive to April 1, 2007, on the basis of the $20,000 a year imputed income for that period. The mother’s income for s. 7 purposes will be set at $14,000 a year.

Clearly the father pursued a deliberate course of conduct for the purpose of evading child support obligations when he left for three years to Lebanon. [ 23 ] However in light of the father’s present medical problems arising from his motor vehicle accident, ongoing child support will be reduced on an interim basis to ½ of the Table Amount while the father is not working full-time. [ 24 ] I further conclude that the arrears created by this reduction in support payments will be calculated and fixed when the father is able to return to employment on a full-time basis.

The amount of these arrears will be added to the arrears calculated on the period from April 2007, to the present date. The total fixed arrears will be repaid by monthly payments spread over a period of 48 months, with those payments commencing at the time the father returns to full-time employment after he recovers from his medical injuries. [ 25 ] The mother will receive the costs of this application. Heard on the 25 th day of February, 2011. Dated at the City of Edmonton, Alberta this 7 th day of April, 2011. Donald Lee J.C.Q.B.A.

Appearances: Marilyn Sheckter Legal Family Crisis Clinic for the Plaintiff AjajeYaggey Joseph Doz Law Offices for the Defendant