Hakime v. Ganic, 2022 ONCJ 19

ONTARIO COURT OF JUSTICE CITATION: Hakime v. Ganic , 2022 ONCJ 19 DATE: January 13, 2022 COURT FILE No.: FO-18-15787 BETWEEN: JIHAD HAKIME Applicant — AND — JASMIN GANIC Respondent Before Justice P. J. Jones Heard on December 6, 7, 8, and 9, 2021 released on January 13, 2022 Audrey Lee...................................................................................... counsel for the applicant Jasmin Ganic .................................................................................................. self represented JONES, P. J.

J.: OVERVIEW [ 1 ] The Applicant mother Jihad Hakime (mother), age 29, and the Respondent father Jasmin Ganic (father), age 41, were married in Morocco on May 12, 2014. This was the first marriage for the Applicant and the second marriage for the Respondent. The Respondent sponsored the Applicant to Canada. She arrived in Canada on November 30, 2015 and is now a permanent resident. [ 2 ] The parties have one child, Asyia Ganic born […], 2018. [ 3 ] The parties separated on June 1, 2018 after an argument during which the Respondent, according to the Applicant, assaulted her.

She called the police and, after meeting with the parties, the police charged the Respondent with assault. (The Respondent denies that he assaulted the Applicant.) The Respondent was subsequently released on bail with a condition that he stay away from the Applicant. [ 4 ] On March 4, 2019 the Respondent entered into a Recognizance to Keep the Peace for a period of twelve months subject to three conditions, namely: to have no contact or communication, either directly or indirectly with the Applicant: not to be within 500 meters of anywhere he knows the Applicant lives, works, goes to school or happens to be, and not to possess any weapons.

Upon entering into this recognizance, the charge of assault was withdrawn.

[ 5 ] The Respondent had no parenting time with his daughter until October 2019 when he began supervised access at Access for Parents and Children in Ontario (APCO) pursuant to the terms of the order of Justice Pawagi dated June 4, 2019. To facilitate supervised access, the Respondent had applied for, and had been granted on April 3, 2019 a variation of the terms of his Recognizance which allowed him to be within 500 meters of the Applicant at Family Court proceedings or to facilitate access to the child pursuant to any Family Court order. [ 6 ] Shortly after in person access began at APCO, it terminated.

In all, there were seven visits at the Centre; on the last three visits the child cried when separated from the mother and could not be comforted by the father, with the result that the visits terminated prematurely. Then the pandemic hit, and the Centre closed to in-person visitations. [ 7 ] The Applicant testified that the Respondent’s previous lawyer asked whether she might be agreeable to supervising parenting time in the community rather than relying on APCO.

She agreed to this plan, and beginning in the summer of 2020, the Respondent has enjoyed supervised parenting time in the community and at McDonald’s, with the mother present, for two hours, either on Saturday or on Sunday.

This change in parenting time occurred without amending the court order. [ 8 ] With this more frequent contact, both parties agree that Asyia is becoming increasingly comfortable in her father’s presence. [ 9 ] The father is currently paying child support pursuant to the order of Justice Sirivar dated March 21, 2019 in the amount of $508 per month commencing April 1, 2019 based on an imputed income of $55,000 pursuant to the Child Support Guidelines. I am advised the father’s payments are up to date except for the payments due November and December 2021.

All the payments that have been received to date have been collected by way of diversion. Until the father began receiving CERB payments and then EI payments and the Family Responsibility Office began diversion, no payments were made. On November 1, 2021, the Respondent began a new job and the payments ceased. The Respondent told the court that he has yet to advise the Family Responsibility Office of his new employment but promised to do so directly. [ 10 ] The relationship between the parties continues to be conflictual, sometimes more than at other times.

HISTORY OF THE RELATIONSHIP BETWEEN THE PARTIES AND FINDINGS OF FACT [ 11 ] These parties do not trust one another. Over the short life of this child, they have shown little, if any, indication that they would be able to work together in Asyia’s best interests. The parties separated when the child was only three weeks old and have never co- parented. [ 12 ] The history between the parties remains a barrier to effective co-parenting.

The Applicant mother testified that the parties separated shortly after the birth of Asyia when she discovered that the father had married another woman in Malaysia in 2017, and that he had secretly traveled to meet up with her in 2018, just weeks before the Applicant gave birth to Asyia. She testified she saw evidence of his marriage when he left his email open on the computer used by both parties.

She produced copies of his marriage certificate, pictures of his wedding ceremony, and copies of his passport entries confirming the wedding, his trips outside the country to meet up with his new wife in 2017 and 2018, and filed them as exhibits at the trial. [ 13 ] The Respondent acknowledged that he had married another woman while still married to the Applicant.

He testified, that according to his religion, he was entitled to marry more than one woman and that he did nothing “illegal” as he did not marry a second woman in Canada. [ 14 ] The Respondent father testified that he told the mother in June 2017 about his wedding before she became pregnant in August 2017. He said that he had been planning on “sending the Applicant back to Morocco” as he “no longer loved her” and on canceling his sponsorship, but did not go through with that plan when he discovered that she was pregnant, albeit without his consent.

He told the court that she became pregnant so that she would be able to stay in Canada. When he found out that she was pregnant, instead of sending her back to Morocco, he said that he rented an apartment and supported her during her pregnancy. [ 15 ] The Respondent acknowledged that he visited his Malaysian wife in 2018 in order to celebrate his honeymoon just weeks before the Applicant gave birth, and that he lied to the Applicant about his reason for travelling in 2018—he told her it was to renew his Bosnian passport.

Why he would not tell the Applicant the true reason for his travel in 2018 when he already, according to him, had told her about this other marriage, was not clear. [ 16 ] The Applicant told quite a different story. She indicated that she and the Respondent had agreed in the spring of 2017 that it was time to start a family and that he told her he was prepared to support her during the pregnancy. She said that she did not know about her husband’s bigamous marriage until she saw his emails shortly after the birth of Asyia in 2018.

She testified that she found them by accident on his open computer, and when she saw evidence of this other marriage, she felt hurt and betrayed as the Respondent had been “the love of her life”. [ 17 ] She recounted the events that transpired on the day the marriage ended.

She said that she was angry when he came home early in the morning on June 1, 2018 because of the emails and wanted to discuss a divorce; she confronted the Respondent. (He testified that he had worked the night shift, and he was exhausted, and he was fasting that morning as he was celebrating Ramadan.) She said that they argued, and according to the Applicant, he grabbed her by her arms, and forced her into the bedroom and put his hands around her neck chocking her.

According to the Applicant, he said, “give me the baby and get out.” She called the police. [ 18 ] The Respondent denied that he assaulted the Applicant. He said she accosted him, and that her arm was bruised when she tried to hit him; he testified that he blocked her right arm when she was attempting to hit him, and that she hit her arm on his elbow thereby causing the bruise seen by the police and by the court in the photograph filed as an exhibit at trial. He testified that she punched him, but he never hit her, nor did he choke her.

He told the court that this assault, as alleged by the Applicant, never happened. Rather, she concocted the story, and has used “the domestic violence victim ploy” to get what she wants and “to scam the system”. He noted that

she has received welfare, free day care, and has obtained subsidized housing in furtherance of this scam. Further, he alleged that she has used the domestic violence ploy to manipulate his uncle and get money and presents from him. [ 19 ] I listened carefully to the stories told by the parties. I prefer the Applicant’s evidence to the Respondent’s evidence as it relates to the circumstances which resulted in the final separation of the parties, subject to the proviso that I am making no finding as to whether the Respondent is guilty of assaulting the Applicant.

I accept that the parties were both upset and angry that day and that a physical altercation occurred between the parties which resulted in the police being called. The Respondent’s version of events, as it relates to when he told the Applicant about his Malaysian wife and her reaction to the news, I find not credible.

The Applicant’s version has a ring of truth. [ 20 ] I accept that the events of that day were clearly significant and profoundly unsettling to both parties. [ 21 ] As a result of the events of that day, the Applicant told the court that she became a single parent of a three-week old infant and was left to fend for herself in a foreign country without familial support and without the support of the child’s father.

The Respondent testified that he was forcibly removed from his home, charged with assault, and denied the opportunity to be involved with his infant daughter for her first eighteen months of life. [ 22 ] The Respondent remains very angry with and distrustful of the Applicant, and the Applicant continues to be distrustful and fearful of the Respondent [ 23 ] Neither party, from the evidence I heard, have moved past the events of that day. Of note, I am satisfied that the Applicant continues to distrust and fear the Respondent.

I reached that conclusion when I heard about another incident which occurred on August 21, 2021 when the Applicant called the police because she was concerned that the Respondent might not return Asyia. Both parties testified about what happened that day. Apparently, the Respondent had agreed to take the Applicant shopping at Walmart. Asyia was present. After the parties finished shopping, they returned to the Respondent’s car and Asyia was placed into the car seat. At this point, the Respondent indicated that he wanted the Applicant to meet his friend who was already in the parking lot.

The Applicant would not get into the car as she was suspicious as to the Respondent’s intentions in arranging to meet his friend when he was shopping with her. The friend got into the car, and the Applicant walked away. The Respondent followed her in his car, beeping his horn, and telling her to get into the car. The Applicant testified that she feared for her safety. She got on the bus and returned home, leaving Asyia in the car. When she got home, she phoned the police as she was concerned the Respondent might not return Asyia.

I understood that this was the first time she had left Asyia alone with the Respondent. Given this fact, I am satisfied that the Applicant would not have acted as she did that day if she had not actually been fearful of her safety. Having said that, I make no finding that the Respondent would have harmed the Applicant that day. However, I see this incident as evidence of the level of fear and distrust the Applicant continues to feel towards the Respondent. OUTSTANDING ISSUES 1. Who should have decision making authority?

The mother seeks sole decision-making authority and the father seeks joint decision- making authority. 2. The Applicant mother seeks an order allowing her to travel with the child outside the jurisdiction without the consent of the Respondent father each year for up to eight weeks. The Respondent father is opposed to such an order and requests that the Applicant only be allowed to travel with the child outside the jurisdiction with his consent or further court order for a period not to exceed four weeks.

Given the history of the mother traveling with the child in breach of court orders, what is the appropriate order I should make? 3. Primary Residence. The father agrees that the child’s primary residence should be with the mother provided the mother not be permitted to move the child’s permanent residence from the Greater Toronto Area without his consent or further court order. 4. What is the appropriate amount of parenting time between the Respondent father and the child and how should the parenting time be gradually increased? 5.

Is the Court satisfied that the threshold issue of entitlement to spousal support has been met? If so, what is the basis on which this entitlement is founded—compensatory or non-compensatory or contractual? 6. If entitlement is established, what is the appropriate amount for retroactive and ongoing spousal support payable to the Applicant mother and upon what income attributed to the Respondent should spousal support be based for the years 2018 through to 2021 and going forwards? 7.

What is the appropriate amount of ongoing child support and upon what income should child support be based for the year 2021 and going forward? DECISION-MAKING AUTHORITY [ 24 ] To date the child has been in the primary care of the mother. For the first eighteen months of the child’s life, the father did not see the child because of the terms of either his bail order or his recognizance or because he was waiting for supervised access availability at APCO.

It is notable that he never sought a variation of such orders which prohibited contact until April 2019 although such orders are routinely adjusted to permit court ordered access between children and their parents in such situations.

[ 25 ] By all accounts the child has thrived in the sole care of her mother. For example, the Respondent’s uncle testified that he admired the mother’s care of the child. The father, when he testified, never complained about how the child was being cared for by the mother. Even after the expiration of the peace bond, the father has not sought to become involved in decisions concerning the child’s medical care, or where she might attend day care or in what extra-curricular activities she might enroll.

Although the mother advised the father of her decisions concerning the child’s care, he never questioned those decisions. I understand the father has never sought to meet the child’s doctor, nor has he met with the day care providers. [ 26 ] The father testified that he seeks joint decision-making authority as he is concerned that the mother has shown a lack of good judgment in traveling out of the country in 2020 without court approval, and that she over-stayed her court approved travel permission in 2019 by remaining in Morocco an extra three weeks.

As well, he asserted that he remains concerned about the manner in which she falsely accused him of assault and had him removed from the home and thereby interfered with his relationship with his daughter. [ 27 ] I agree that the mother’s decisions to extend her trip to Morocco by three weeks in 2019 contrary to the court order and to travel to Morocco without court permission in 2020 are concerning, as these decisions demonstrate a lack of respect for the role of the court and court orders. However, in this case, I am not prepared to impose an order for joint decision-making responsibility for two reasons: 1.

The mother has been the sole decision-making party and her decisions to date show her ability to make decisions for Asyia in her best interests. It is notable that the Respondent has not opposed any decision the Applicant has made relating to the care of Asyia. Although the Applicant has kept the Respondent advised of her decisions, he has made no efforts to be included in such decisions. 2. The parties neither trust nor respect each other and I have concluded that they would not be able to work co-operatively in the child’s best interests at this time.

I am concerned that to impose such an order would serve to inflame the situation further and would effectively paralyze the decision-making process. [ 28 ] Accordingly, the Applicant mother will have sole decision-making responsibility with respect to the child, including the responsibility to make major decisions about Asyia’s education, health care, and any other major decision, and shall keep the Applicant father informed of those decisions. If practicable, at least 30 days before making a major decision, the Applicant mother shall advise the Respondent father of the nature of the decision to be made.

If it is not possible to give 30 days advance notice, she shall advise the Respondent as soon as practicable of the decision to be made. If a decision must be made on an urgent basis, and there is no time to advise the Respondent before the decision must be made, she shall forthwith notify the Respondent of her decision. The Applicant shall seek the Respondent’s input and consider his input when making her decision concerning major issues affecting the care of the child and shall advise the Respondent of her decision once the decision is made.

TRAVEL AND PASSPORT AND OTHER GOVERNMENT ISSUED DOCUMENTS [ 29 ] The Applicant mother seeks an order that she be permitted to travel with Asyia each year outside the jurisdiction for a period of eight weeks without the consent of the Respondent father provided she gives him advance written notice and an itinerary. The Respondent father testified that he was not against the mother being permitted to travel with Asyia for a period up to one month each year, but requests that the Applicant be required to obtain his consent or further court order if she wishes to travel outside the jurisdiction with the child.

In this regard, he points to the travel history of the mother in 2019 and 2020. The Applicant mother asks that no consent be required as she told the court that, given her experience with the Respondent and his refusal to consent to her traveling in 2020 even when she told him her mother was ill, it is her belief that he would never consent, and she would be left applying to the court each time she wanted to visit her family in Morocco. The Applicant recounted how she is making her life in Canada and has no intention of returning to live permanently in Morocco.

However, she has no family here, she misses her family, and would like Asyia to benefit from a relationship with her family by visiting them at least once a year. [ 30 ] Each party raises legitimate concerns. Given the current level of trust between the parties, I agree with the Applicant mother that the Respondent father is unlikely to consent to her traveling each year to visit with her family in Morocco. However, I am not prepared to permit her to travel with Asyia for any period in excess of four weeks without the consent of the Respondent or further court order.

I expect the Applicant to abide by the terms of the court order going forward if she wishes to continue to enjoy such travel permission. [ 31 ] Accordingly, I make the following order with respect to travel: • The Applicant mother may travel with Asyia outside of Canada for vacation purposes for a period of thirty days or less in any calendar year, without the consent of the Respondent father.

If such travel will involve the child remaining outside of the country (Canada) for more than 3 overnights, she shall provide 30 days advance written notice and an itinerary to the Respondent to include an emergency contact number, the destination, departure and return date, flight numbers and air carrier, if applicable. • The Respondent father shall not remove the child from the jurisdiction without the consent of the Applicant mother or further court order. This provision may be revisited without the necessity of demonstrating a material change in circumstances.

Suffice it is to say, that the court anticipates that as the child grows older and the Respondent begins to enjoy overnight and extended parenting time, this issue of international travel for vacation purposes will be addressed either on consent or by further court order. [ 32 ] Given my orders with respect to decision making responsibility and travel, I make the following order with respect to the child’s passport and other government documentation, namely, • The Applicant mother may apply for passports, renewals of passports, health cards, birth certificates, and other government documentation for Asyia, without the Respondent’s consent.

The Applicant mother shall be the parent who holds all documents. The

Applicant mother shall provide a certified copy of the child’s current health card to the Respondent so that it may be available to the Respondent in the event Asyia requires emergency health care while she is with her father during his parenting time. PRIMARY RESIDENCE [ 33 ] The mother seeks an order that the child’s primary residence be with her. The father is content that I make such an order, provided the court order that the mother not change the child’s primary residence from the Greater Toronto Area without his consent or further court order.

The mother takes no issue with this limitation on her mobility. [ 34 ] Accordingly, I make the following order: • the child’s primary residence shall be with the mother, provided the mother shall not be permitted to change the child’s primary residence from the Greater Toronto Area without the consent of the Respondent or further court order. PARENTING TIME [ 35 ] To date the father has only enjoyed supervised parenting time.

He seeks an expansion of his parenting time to include unsupervised parenting time with a view to overnight parenting time when the child is older and he has a suitable residence in which to exercise overnights. In his testimony, he suggested that overnight parenting time on an alternate weekend basis begin when the child reaches the age of 5 years.

As to what parenting time would look like going forward, he suggested that he be granted unsupervised parenting time immediately, starting with two hours moving gradually to eight hours, no overnights until she attains the age of 5 years. [ 36 ] The mother agrees that the father’s parenting time should be gradually expanded and become unsupervised and that overnight parenting time be delayed until the child is older.

She agrees that the child is becoming more comfortable with her father, however, she indicated that she did not agree that unsupervised parenting time should begin immediately; she would recommend that there be two further supervised visits, then try two unsupervised visits and take it from there.

The mother indicated that, in her opinion, the father should enroll in a parenting course as she pointed to his limited experience in parenting and how he relied upon her to take the child to the bathroom and care for the child during current supervised parenting time. [ 37 ] It would appear to me that the mother and the father are in substantial agreement that an expansion of parenting time to the father should happen, starting in January 2022. Both parties want the father’s time with Asyia to be enjoyable for her and her father.

In my opinion, the likelihood of there being a smooth transition to expanded, unsupervised parenting time would be increased if the parties were agreeable to attending mediation on this issue. However, should the parties not agree to mediation, I am prepared to craft an order that will gradually expand parenting to the father. 1. The father shall have parenting time for two hours on Saturday supervised by the mother for the next two Saturdays. 2.

The father shall have parenting time for two hours on the following four Saturdays without supervision, father to pick up and drop off the child at the mother’s residence 3. The father shall have parenting time on the following eight Saturdays for four hours each day without supervision, father to pick up and drop off the child at the mother’s residence. 4. Thereafter the father shall have parenting time each Saturday from 10 a.m. to 4 p.m. without supervision, father to pick up and drop off the child at the mother’s residence. 5.

Commencing in April 2022, the father shall have additional parenting time each Wednesday from 3:30p.m.-7:30 p.m. or on such other weekday and at such other times as the parties may agree. 6. Overnight parenting time shall begin when the child reaches five years of age or at such sooner date as the parties may agree, with a view to transitioning into an alternate weekend parenting time regime. 7. The father shall have additional daytime parenting time including holiday parenting time as the parties may agree. 8. On consent, the parties may vary the father’s scheduled parenting time in writing.

SPOUSAL SUPPORT – ISSUE OF ENTITLEMENT [ 38 ]

Section 30 of the Family Law Act, R.S.O. 1990, c.F.3 , imposes an obligation on an individual to support him or herself and to provide support for the other spouse in accordance with need, to the extent that the payor or spouse is capable of doing so. [ 39 ] Both the Family Law Act ( s. 33(8) ) and the Divorce Act , R.S.C. 1985, c.3 (2 Supp.) as am.) indicate that the objectives that are to be achieved by an order for spousal support include: 1. The recognition of any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown, 2. The relief of any economic hardship of the spouses arising from the breakdown,

3. As far as is practicable, the promotion of the economic self-sufficiency of each spouse within a reasonable period of time. (See Khanv. Irum, 2021 ONSC 3314 [40] Courts have characterized entitlement to spousal support in three ways: compensatory, non-compensatory and contractual. [41] On the facts of this case, I find that the Applicant has a persuasive claim for support on both contractual and compensatorygrounds.

She not only has a claim for support as a sponsored immigrant to Canada, she also has a claim for support as the mother of theRespondent’s child, born three weeks prior to the separation of the parties, who became the parent solely responsible for meeting theneeds of this very young child after the Respondent was removed from the residence by the police. [42] The existence of a sponsorship agreement signed by the Respondent is one factor to be considered in assessing entitlement tospousal support; it is not determinative, but has been found to be a strong factor in favour of ordering spousal support.

See Camilleri v.Camillerie, (ON SCDC), [2001] O.J. No. 2602 (Ont. Div. Ct.). Carty-Pusey v. Pusey, 2015 ONCJ 382 Javed v. Kaukab, 2010 ONCJ 606 (CANLII and Gutierrez v. Petten, 2011 ONCJ 549 . In this case, the Respondent sponsoredthe Applicant as a member of the family class to become a permanent resident. As part of the sponsorship application, the Respondentsigned an undertaking of assistance whereby he promised to support the Applicant for the period of three years after she became apermanent resident.

This three-year period ended in November 2018. [43] On the compensatory grounds, the Applicant is currently caring for the very young child of the marriage. Prior to thetermination of the marriage, the Respondent was the primary, if not sole, provider for the family; he certainly was the sole provider forthe family during the time the Applicant was pregnant. As such, I find that the mother was dependent on the Respondent and suffered aneconomic disadvantage when the marriage broke down.

As a single parent without family in Canada, I accept that she has needed todevote herself to the care of Asyia, and is not currently in a position to become self-sufficient, although I note she is no longer on socialassistance benefits as she has, as of September 2021, enrolled in a retraining program at George Brown College. [44] Within the last year, the mother has obtained affordable day care and is currently pursuing a two year retaining program atGeorge Brown College with a view to becoming a community worker.

She anticipates being in a position to become self-supportingwithin a reasonable time after the end of the program.

Given her educational background in Morocco (she has a college diploma) and thefact that she is fluent in English, French and Arabic, in my opinion, her chances are very good of becoming self-supporting. [45] The mother is seeking a time-limited spousal support order for five years which would terminate on or about Asyia’s fifthbirthday. [46] The Respondent disputed the quantum of spousal support requested and the duration of the support, but did not seriously contestthreshold entitlement. [47] On the facts, I find the Applicant has satisfied the threshold issue of entitlement to spousal support.

SUPPORT ISSUES [48] The Respondent father filed his income tax summaries for 2015-2020. For each year since the parties began cohabitation to date,the Respondent’s line 150 income for 2015, 2016, 2017 2018, 2019, and 2020 is $20,517, $5,416, $82,935, $71,043, $17,212, and$58,729.

From his evidence, I would estimate that his 2021 income will be in the range of $30,000 as he testified that he collectedemployment insurance at the rate of $522 per week from January until the end of October, 2021 and as of November 1, he becameemployed at a rate of $650 per week, not including overtime ,which I expect will be available to him given his experience with this samecompany in 2020. [49] For purposes of setting child support, Justice Sirivar on March 21, 2019 imputed an annual income to the Respondent of$55,000.00 notwithstanding the fact that the Respondent was unemployed at the time the order was made.

I am advised she did so bymore or less averaging his last three years income. [50] The Applicant mother requests that I impute an income of $58,729 to the Respondent for child support purposes going forward,(she is content that the temporary child support order remain as is) and for spousal support purposes from the date of separation totoday’s date and on a go forward basis. (The Respondent’s line 150 income for 2020 of $58,729 included employment income, CERBpayments and Employment insurance payments.) [51] The Respondent acknowledged his responsibility to pay child support.

He told the court about his financial struggles to honourhis child support obligation. He argued that he could not afford to pay retroactive spousal support and expects to be in a position only topay a modest amount of spousal support going forward should the court find he has an obligation to do so. He urged the court to findthat the Applicant is employable and should be self-supporting now. [52] The Respondent father testified as to his lifestyle/standard of living for the last three years. He advised the court that he iscurrently living with his mother in her one-bedroom subsidized apartment.

He said that he sleeps in the living room behind a curtain ashe has had no money to rent his own apartment. (He noted that one half of his pandemic benefits and E.I benefits were being diverted bythe Family Responsibility Office to satisfy his child support obligations for the last two years.) [53] Under cross examination, the father was unable to answer certain questions about his financial statements.

For example, he wasunable to explain how, according to his 2020 and 2021 sworn financial statements, he apparently managed to pay off $14,000 of debt(including $4000 worth of child support arrears) in the last year, reducing his 2020 debt from 34,889.96 to $16,121.12 in 2021. According to the Applicant’s counsel, he could only have paid down his debts at such a rate if he were in receipt of undisclosedincome. When confronted with this financial impossibility on his declared income, the Respondent seemed confused.

In an attempt toexplain how this reduction was possible, he noted that he did not pay rent to his mother although his sworn financial statement included

$300 for rent, indicating that his mother was supporting him so that he could proceed to pay off his debts. He testified that he was paying down the debt at a much greater rate than was set out in his sworn financial statement. Finally, he said that this couldn’t be right, and his lawyer must have made a mistake. [ 54 ] The Respondent testified that he has not been intentionally unemployed or underemployed, nor has he been intentionally deceptive in presenting his financial circumstances.

He said he could not explain the apparent discrepancy concerning his debt situation, and suggested that there must be a mistake. He said that he had many credit cards and some cards may have been left off his statement or some credit card balances must have been incorrectly reported. In the end, I accepted the evidence of the Respondent as it related to his inability to pay retroactive spousal support. In my experience, many people have suffered economic hardship during the pandemic, and this Respondent appears to be one of them.

His life style, which was not contested by the Applicant (she acknowledged that he was living with his mother in her subsidized apartment) is consistent with an individual struggling financially to make ends meet given the downturn in the economy. [ 55 ] Although I find that the Applicant would be entitled to an order for spousal support from the date of separation, I am not satisfied that the Respondent had the means to make retroactive spousal support payments as requested.

He has honoured his child support payments on an imputed income, which in hindsight may have been overly optimistic. (He makes no claim for any adjustment in this regard.) He has no savings, is deeply in debt, and he has just gone back to work.

In the circumstances of this case, I am not prepared to create an instant, additional debt of $41,309 ($24,309 payable to the City, and $17,000 payable to the Applicant ) relating to spousal support arrears as would be the case if I were to order retroactive spousal support as requested by the Applicant [ 56 ] Now that the Respondent is employed and the economy appears to be opening up, I am prepared to impute income ,on a go forward basis, to the Respondent equal to his 2020 line 150 income for the purpose of calculating future child and spousal support payments.

The Respondent refers to himself as a civil engineer, who, when employed, is capable of earning at least $58,729 based on his prior income tax returns. SPOUSAL SUPPORT [ 57 ] The Applicant is presently attending George Brown College and is enrolled in a two-year college diploma program in community work. She is no longer in receipt of Social Assistance Benefits and, as of September 2021 is in receipt of monies from the Ontario Student Awards Program (OSAP). In calculating her income for use in the SSAG software program, I have deducted that portion of the OSAP award that would have to be repaid as a student loan.

As such, her income for SSAG purposes is $15, 592. [ 58 ] I have imputed the Respondent’s income for SSAG purposes at $58,729 for the reasons set out above. [ 59 ] After inputting the Applicant’s and the Respondent’s incomes into the SSAG software program utilizing the “with child support formula”, I was provided by Applicant’s counsel with a spousal support calculation for 2022 – in the low range of 0, in the mid-range of $184 and in the high range of $373 for an indefinite (unspecified) duration, not less than five years, subject to variation and possibly review. [ 60 ] The Applicant indicated that she is requesting a time limited spousal support order, commencing on the date of separation and terminating after five years.

She noted at that time, Asyia will be five years old and she should be graduated and employed as a community worker. [ 61 ] In the circumstances of this case, I am ordering spousal support payable by the Respondent to the Applicant in the amount of $373 per month commencing January 1, 2022 and terminating December 31, 2023, subject to review and possible extension. I have deviated from the guidelines because of the economic hardship visited on the Respondent by the pandemic and my assessment that the Applicant should be self-supporting in two years’ time.

CHILD SUPPORT [ 62 ] Based on the Respondent imputed annual income of $58,729, the Respondent shall pay to the Applicant for the support of Asyia Ganic born […], 2018 the sum of $543.00 per month commencing January 1, 2022 pursuant to the Child Support Guidelines. [ 63 ] The order shall include the standard annual review provision. [ 64 ] Unless the support is withdrawn from the Office of the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the director, wo shall pay them to whom they are owed. [ 65 ] Support Deduction Order to issue [ 66 ] The Applicant’s counsel shall prepare a draft order in accordance with the terms contained herein and shall forward a copy of the draft order to the Respondent for his approval as to form and content.

If no approval or notice disputing approval is received within 10 days of service of the draft order, the order may be signed by the court, provided the draft order otherwise meets the requirement of the Rules of Family Law. COSTS

[ 67 ] If either party seeks costs, they are to serve and file written submissions at the trial coordinator’s office by February 11, 2022 and the other party shall have 30 days to respond. The submissions should not exceed five pages, not including any offer to settle or bill of costs. Released: January 13, 2022 Justice P. J. Jones