Marchenko v. Ghassan, 2018 ONCJ 74

CITATION: Marchenko v. Ghassan , 2018 ONCJ 74 DATE: February 5, 2018 COURT FILE NO. D91865/16 ONTARIO COURT OF JUSTICE B E T W E E N: ) ) OLENA MARCHENKO REIDE L. KAISER, for the APPLICANT ) APPLICANT ) ) - and - ) ABU MARAR GHASSAN ) NOT APPEARING, NOTED IN DEFAULT RESPONDENT ) ) ) ) ) ) HEARD: JANUARY 4 and FEBRUARY 1, 2018 JUSTICE S.B. SHERR REASONS FOR DECISION Part One – Introduction [ 1 ] This was an uncontested hearing where the applicant (the mother) sought child support from the respondent (the father) for the parties’ 19-year-old child (the child) and spousal support.

The mother asked the court to impute the father’s annual income for support purposes at $155,000 and to order him to pay her support retroactive to January 1, 2011. She also sought her costs of this application. [ 2 ] The father lives in the United Arab Emirates (UAE). He did not file an Answer to the mother’s application. He was noted in default on January 2, 2018.

[ 3 ] The uncontested hearing started on January 4, 2018. The court raised the issue of its jurisdiction to order spousal support since the mother’s trial affidavit indicated that she had been divorced prior to issuing this application. The court also sought further evidence regarding the mother’s income history, the child’s income and the child’s eligibility for loans and grants for her post-secondary school expenses. [ 4 ] At the return of the hearing, the court reviewed the mother’s affidavits sworn on December 18, 2017 and January 30, 2018 and her financial statement sworn on December 18, 2017.

The court also heard oral evidence from the mother. [ 5 ] The issues for the court to determine are:

a) Does this court have jurisdiction to order spousal support?

b) What is the father’s income for support purposes?

c) Is the support amount determined by applying

section 3 of the Child Support Guidelines (the guidelines) inappropriate? If not, how much child support should the father pay on a prospective basis?

d) Should the court order retroactive support, and if so, how much?

e) What costs should be ordered? Part Two – Background facts [ 6 ] The mother is 43 years old and was born in Ukraine. [ 7 ] The father is 45 years old and was born in Jordan. [ 8 ] The parties were married in Ukraine in 1997. [ 9 ] The parties had the one child together. She was born in 1998. [ 10 ] The parties separated at the end of 1999. The child remained with the mother in Ukraine. [ 11 ] The parties divorced in Jordan in 2000. [ 12 ] The parties reconciled in 2004 and remarried.

The father came to Canada and the mother and the child remained in Ukraine. [ 13 ] The father sponsored the mother and child to come to Canada in November, 2007. The mother is a permanent resident of Canada and has lived in Toronto with the child since she came to Canada. [ 14 ] The parties separated in January, 2010 and have not reconciled.

[ 15 ] The father has lived and worked in the UAE since the parties separated. [ 16 ] The parties were divorced in 2010 in Jordan. Support issues were not addressed in that proceeding. The mother did not contest the validity of the divorce. [ 17 ] The mother said that the father made direct deposits of money into her bank account until November, 2010 and then stopped. [ 18 ] The mother said that she frequently asked the father for money between 2010 and 2013. He would promise to send her and the child money, but never followed through on his promises.

He eventually pronounced that they would never receive a cent from him. [ 19 ] The mother issued this claim on November 21, 2016. This case was delayed due to the mother’s difficulties in effecting service on the father. Part Three – Jurisdictional issue – spousal support [ 20 ] The mother conceded at the second hearing date that the court did not have jurisdiction to make a spousal support order. [ 21 ] The Ontario Court of Justice only has jurisdiction to order spousal support pursuant to the Family Law Act (the Act).

Section 30 of the Act reads as follows: Obligation of spouses for support 30 Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so. [ 22 ] Subsection 1 (1) of the Act defines spouse as follows: “spouse” means either of two persons who, (

a) are married to each other, or (

b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right. [ 23 ]

Section 29 of the Act extends the definition of spouse for the purpose of support. It reads as follows: “spouse” means a spouse as defined in subsection 1 (1), and in addition includes either of two persons who are not married to each other and have cohabited, (

a) continuously for a period of not less than three years, or (

b) in a relationship of some permanence, if they are the parents of a child as set out in

section 4 of the Children’s Law Reform Act.

[24] However,

section 29 of the Act does not extend spousal support obligations to former spouses who had children. See: Abernethyv. Peacock, (ON SC), 2009 O.J. No. 2066 (ONSC), par. 10. [25] The court can only make an original order for spousal support if the mother was a spouse (as defined in the Act), at the time sheissued the issued her application. See: Abernethy v. Peacock, supra; Francisco v. Francisco, 2017 ONCJ 323. Since the mother wasdivorced in 2010, she was no longer a spouse as defined in either subsection 1 (1) or

section 29 of the Act at the time she issued herapplication in 2016. She was ineligible for spousal support under the Act. [26] The court will next address the issue of child support. Part Four – The father’s income [27] It was difficult for the mother to establish the father’s income as he has not disclosed his earnings to her since 2009. The fatherhad the opportunity to present proof of his actual income to the court and chose not to do so.

An adverse inference is made against him. [28] The mother was able to provide some evidence of the father’s income – enough for the court to make reasonable estimates ofincome to impute to him. [29] The mother had a copy of the father’s Notice of Assessment from 2009. He was working as a Staff Adjuster for a company inCanada. He earned $78,652. [30] The mother also provided a copy of the father’s LinkedIn page. It showed the following:

a) He worked as a Staff Adjuster from May, 2007 until January, 2010.

b) He worked as a Branch Manager in the UAE from February, 2010 until July, 2012.

c) He worked as a Regional Risk Engineering Manager for an insurance company in the UAE from August, 2012 until April, 2014.

d) He has worked as a Senior Risk Consulting Manager for the same insurance company in the UAE since May, 2014. [31] The mother testified that the family’s plan had been to eventually move together to the Middle East. She said that the father toldher that the jobs he could obtain in the Middle East would start at $120,000 per annum in Canadian dollars. She believes that the father isearning about $155,000 per annum at this point. [32] In closing submissions, the mother’s counsel conceded that it is unlikely that the father has earned $155,000 each year since heleft to the UAE.

It is more likely that he has received annual pay increases together with larger pay increases each time he was promoted(in 2010, 2012 and 2014). Further, it is likely he received a significant pay increase to move to the UAE in 2010 as an incentive to leaveCanada. [33] Based on these assumptions, the court accepts the mother’s position that the father is earning $155,000 per annum as of January1, 2018 for support purposes. Part Five – Is the amount determined by applying

section 3 of the guidelines inappropriate?

[34] Subsection 3 (1) of the guidelines sets out the presumptive rule in calculating child support as follows: Presumptive rule 3

(1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age ofmajority is (

a) the amount set out in the applicable table, according to the number of children under the age of majority to whom theorder relates and the income of the spouse against whom the order is sought; and (

b) the amount, if any, determined under

section 7. [35]

Section 4 of the guidelines permits the court to deviate from the amount set out in

section 3 where a payor earns income over$150,000, if the court determines that amount to be inappropriate. There is a presumption that the amount in

section 3 of the guidelines isthe appropriate amount to award: See: Francis v. Baker, (SCC), [1999] 3 S.C.R. 250 para. 42. There was no evidencethat would rebut the presumption in this case. [36] Subsection 3 (2) of the guidelines, which addresses children the age of majority or over, also permits the court to deviate from theamount set out in subsection 3 (1) if it determines that amount would be inappropriate. This subsection reads as follows: Child the age of majority or over

(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age ofmajority or over, the amount of the child support order is (

a) the amount determined by applying these Guidelines as if the child were under the age of majority; or (

b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition,means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. [37] The court finds that the application of subsection 3 (1) of the guidelines is appropriate in this case. The child is living at homewith the mother and is attending the Schulich School of Business at York University.

The mother’s expenses for the child arecomparable to those of a child under the age of majority. [38] The mother is claiming $2,889 from the father for the child’s post-secondary expenses for the school year 2016/2017 – thebalance of the child’s post-secondary expenses were covered by grants. The mother was on public assistance at this time and could notcontribute to these expenses. The court will make the order sought by the mother. [39] The child’s entire 2017/2018 post-secondary expenses are covered by grants.

The mother asks for an order that the father pay hisshare of these expenses not covered by grants in the future. This is a reasonable request. [40] The mother is now employed and earning annual income of $45,000. The court will order the father to pay his proportional share(77.5%) of the child’s post-secondary expenses, not covered by grants or bursaries, within 30 days of receipts of these expenses beingsent to him.

Part Six – Retroactive support 6.1 Legal considerations [ 41 ] The Supreme Court in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra , 2006 SCC 37 outlined the factors that a court should take into account in dealing with retroactive applications. Briefly, there are four points that the court raised: 1. Whether the recipient spouse has provided a reasonable excuse for his or her delay in applying for support. 2. The conduct of the payor parent. 3. The circumstances of the child. 4.

The hardship that the retroactive award may entail. [ 42 ] None of the above factors are decisive or take priority and all should be considered in a global analysis. In determining whether to make a retroactive award, a court will need to look at all of the relevant circumstances in front of it. The payor’s interest in certainty must be balanced with the need for fairness and flexibility. [ 43 ] Retroactive awards are not exceptional.

They can always be avoided by proper payment ( D.B.S. par. 97 ). [ 44 ] The court should not hesitate to find a reasonable excuse for delay in the following circumstances: where the recipient spouse harbored justifiable fears that the payor parent would react vindictively to the application to the detriment of the family; where the recipient lacked the financial or emotional means to bring an application; or where the recipient was given inadequate legal advice ( D.B.S . , par. 101 ). [ 45 ] The court should take an expansive view of what constitutes blameworthy behaviour.

Blameworthy behaviour is anything that privileges the payor’s own interests over the child’s right to an appropriate amount of support ( D.B.S. , par. 106 ). [ 46 ] Where ordered, an award should generally be retroactive to the date when the recipient gave the payor effective notice of his or her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility ( D.B.S . , par. 5 ). [ 47 ] Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated.

All that is required is for the subject to be broached. Once that has been done, the payor can no longer assume that the status quo is fair ( D.B.S. , par. 121 ). [ 48 ] Once the issue is raised, the recipient must still be responsible in moving the discussion forward. If he or she does not, legal action should be contemplated. A prolonged period of inactivity after effective notice may indicate that the payor’s reasonable interest in certainty has returned.

Thus, even if effective notice has already been given, it will usually be inappropriate to delve too far into the past ( D.B.S. par.123). 6.2 Analysis [ 49 ] The mother seeks a support order retroactive to January 1, 2011. [ 50 ] The mother testified that she continuously asked for support from the father between 2010 and 2013. The court finds that the date of effective notice of the mother’s claim was sometime in December, 2010 – this was the time the father stopped paying any support. [ 51 ] The mother provided some justification for her delay in applying for child support.

She deposed that she was afraid of reprisals by the father as he was physically and emotionally abusive to her during the marriage. She described one incident where the father pushed her and waved a knife in front of her face during an altercation. The mother also described how she had difficulty obtaining legal assistance to bring her claim. She stopped and started with the process of claiming support on a few occasions. English is not the mother’s first language, she had been abandoned by the father in Canada and she was a single parent.

It became clear in listening to the mother that she considered the process of claiming support from the father to be a daunting prospect. That said, she could have started her support claim when the father made it clear to her in 2013 that he would pay no support to her. [ 52 ] The father’s conduct is blameworthy. He left his family in Canada and paid no support after November, 2010, despite multiple requests by the mother. He had a well-paying job and was aware of his child support obligation. He made a decision not to meet this obligation.

[ 53 ] The mother described how the child’s circumstances were disadvantaged by the father’s failure to pay support. The mother and child have lived on a very restricted budget. The mother and the child were on public assistance from August, 2014 until November, 2017. The mother couldn’t enrol the child in most extra-curricular activities. She couldn’t afford to spend much for entertainment or gifts for the child. The family has been under constant financial pressure. [ 54 ] There is no evidence that a retroactive order would create financial hardship for the father.

He has obtained a financial windfall at the expense of his child. [ 55 ] The father’s egregious blameworthy conduct is the dominant factor in this case and dictates making an order that goes back more than three years from the date of formal notice (the date of the application). He made a deliberate decision not to pay support that punished his family. [ 56 ] Balancing all of these considerations the court will make its child support order retroactive to January 1, 2012.

Part Seven – Calculation of support owing [ 57 ] The father did not provide financial disclosure, so the court cannot determine with certainty his actual income on an annual basis since January 1, 2012. [ 58 ] In determining the child support owing, the court will assess the approximate average income of the father for the period from 2012 to 2017. [ 59 ] It is likely that the father received a significant increase in income to move to the UAE in 2010 – probably income in the range of $100,000 per annum. [ 60 ] It is also likely that the father received pay increases when he was promoted in 2012 and 2014.

This would be on top of annual pay increases. [ 61 ] The court will use an average income of $132,000 from 2012 to 2017 for the purpose of determining the father’s support obligation for this period. [ 62 ] The guidelines table amount at this income from January 1, 2012 to November 30, 2017 was $1,129 each month.

This comes to $80,159 for this 71-month period. [ 63 ] The guidelines table amount at this income for December, 2017 was $1,162. [ 64 ] The guidelines table amount at an annual income of $155,000 for January and February, 2018 was $1,335 each month, for a total of $2,670. [ 65 ] The father owes the mother $2,889 for

section 7 expenses, as set out in

Part 5 above. [ 66 ] The total amount owing by the father to the mother is $86,880 ($80,159 + $1,162 + $2,670 + $2,889). [ 67 ] The ongoing guidelines table support payment by the father at an annual income of $155,000 will be $1,335 each month. Part Eight – Costs [ 68 ] The mother seeks her costs of $3,000. This is a very reasonable and proportionate amount, given the work done by her counsel, and will be ordered. Part Nine – Conclusion [ 69 ] A final order will go on the following terms:

a) Based on an imputed annual income of $155,000, the father shall pay the mother the guidelines table amount of $1,335 each month for child support, starting on March 1, 2018.

b) The father shall pay to the mother his proportionate share (77.5%) of the child’s post-secondary expenses, not covered by grants or bursaries, within 30 days of receipts for these expenses being sent to him by the mother.

c) The father shall pay the mother the sum of $86,880 for past support owed to her as calculated in

Part 7 of these Reasons for Decision.

d) The court will not make a spousal support order due to lack of jurisdiction.

e) A Support Deduction Order shall issue.

f) The father shall pay the mother’s costs fixed at $3,000. [ 70 ] Court staff are requested to send a copy of these Reasons for Decision to the City of Toronto, Family Support Unit. It is likely that the mother assigned her interest in support to the City of Toronto for the three years she was on public assistance. [ 71 ] Lastly, the court thanks the mother’s counsel for his professional presentation of the case.

Released: February 5, 2018 Justice S.B. Sherr