Shehara v. Sade, 2012 ONCJ 409

COURT FILE No.: Brampton 777-11 Citation: Shehara v. Sade , 2012 ONCJ 409 ONTARIO COURT OF JUSTICE BETWEEN: SAMID SHEHARA Applicant, — AND — SUHAILA SADE Respondent. Before Justice S.R.

Clark Motion to Change the Final Order of Brownstone, J. dated November 27, 2007 re Child Support Motion Heard on June 12, 2012 Ruling released on June 22, 2012 Samid Shehara.......................................................................................................... self-represented Suhaila Sade.............................................................................................................. self-represented CLARK J.: 1:0 INTRODUCTION [ 1 ] The respondent mother, Suhaila Sade (hereinafter referred to as “the mother”) brings a motion to change, dated June 8, 2011 the final order of Brownstone, J., dated November 27, 2007. [ 2 ] She seeks an order requiring the applicant father, Samid Shehara (hereinafter referred to as “the father”) to honour the terms of their original agreement, and to pay arrears of child support in the amount of $557.00 per month, based on imputed annual income of $60,000.00, commencing April 1, 2008, to the present, and ongoing child support in the same amount, for the subject child, Sally Shehara, born November 6, 1997, presently age 14 (hereinafter referred to as “the child”). [ 3 ] She submits that the father is capable of, and should be earning an annual income of $60,000.00, and that he has been intentionally unemployed or under-employed. [ 4 ] The father, on the other hand, contends that he has had difficulty seeking and maintaining full time employment.

He has been endeavouring to secure a steady job in earnest. He is prepared to pay child support from 2008 onward in accordance with his reported income for the relevant years. [ 5 ] Rather unfortunately, for reasons best known only to him, the father chooses not to exercise access to the child, despite the mother’s encouragement. [ 6 ] Apparently, Brownstone J. made previous orders on April 11, 2002, and August 20, 2003. Neither of these orders was filed with any of the materials by the parties, nor did the Court have the benefit of considering the specific terms.

Representations were made, however, on the first case conference held on October 4, 2011 to the effect that child support was payable by the father in the amount of $281.00 per month on imputed annual income of $32,340.00, commencing April 15, 2002, pursuant to Brownstone J.’s original order dated April 11, 2002.

Subsequently, on August 20, 2003, the quantum of child support was reduced to $150.00 per month, commencing August 1, 2003. [ 7 ] This Court has been dealing with the parties in relation to this motion to change for approximately the last 20 months, in an effort to promote a settlement of the issues, unfortunately without success. [ 8 ] The order of Brownstone, J., dated November 27, 2007, provided that child support payable by the father from June 6, 2006 to September 11, 2007, and further, from October 1, 2007 onward, was suspended.

However, the father was required to notify the mother once he was no longer receiving social assistance, or upon obtaining any form of employment. He was also required to provide a copy of his annual

income tax return and notice of assessment by June 30 th of each year. 2:0 THE POSITIONS OF THE PARTIES 2:1 The Mother [ 9 ] She submits that the father has been working for some time but he never notified her of same. It is her information that he held a job delivering chickens to restaurants, and worked for a period of time at a Shell gas station in Mississauga. She also believes that he owns property and owns and operates a 2009 Volvo car.

She has asked him to provide a mortgage application for the purchase of his current residence, copies of financing agreements for all motor vehicles, and bank and credit card statements and applications for same. She believes that he has had a gambling addiction in the past and that he has been labouring under mental health challenges, and was institutionalized for a period of time in this regard.

Nonetheless, he should not be entitled to use this as an explanation or excuse for his being unemployed for significant periods of time. [ 10 ] She remains highly suspicious of his motives, and cannot understand why he would not support his child. She suggests that he talks a good story, but his actions, or inactions show that he does not consider this obligation as a priority. [ 11 ] She has continued to maintain the position that he is living a lifestyle which cannot be maintained on the basis of his filed financial disclosure.

Furthermore, she submits that he is living in a townhouse worth approximately $180,000.00 and owns a car with a value of $16,000.00. He has remarried, and although presently separated, he continues to reside in the matrimonial home. 2:2 The Father [ 12 ] He has filed materials setting out that he does not own a house or pay a mortgage. Furthermore, he has no credit cards because of his past bankruptcy. He owns a 2001 Volvo with a present value of approximately $2,000.00. Furthermore, he has filed a letter from his current spouse, Fatin Elias, wherein she states that she purchased a house in April, 2010.

She further confirms that she and the father separated in November, 2009. He is paying rent to her in the amount of $500.00 per month. She permits him to deposit his employment insurance cheques into her TD bank account, from which she deducts this amount. She further confirms that she presently resides with her own mother. He has stated that he continues to reside in this residence. [ 13 ] He has also filed a letter dated December 19, 2011, confirming that he is employed by Alqush Services as a general labourer as of this date. He works full time and earns $12.00 per hour.

Therefore, the Court calculates that gross weekly income would be $480.00, based on a 40 hour week. Over 52 weeks in the year, this would total an annual income of $24,960.00.

Using the simplified Federal Child Support tables, which came into force on December 31, 2011, the table amount for one child is $199.00. 3:0 ANALYSIS [ 14 ] The Court has given careful consideration as to whether it would be appropriate to impute an income to the father greater than what has been reported. [ 15 ] S.19 of the guidelines provides that the Court can consider such factors as intentional under-employment or unemployment, and whether or not income has been diverted which would affect the level of child support to be determined under the guidelines.

Another significant factor to consider in this analysis is whether or not the father has failed to provide income information when under a legal obligation to do so. [ 16 ] Although the father’s disclosure was filed, in what can only be described as “dribs and drabs”, he has substantially complied with the various temporary orders made by this Court. [ 17 ] Despite the mother’s strong “gut feelings” and protestations, much of her information about the father either living a relatively lavish lifestyle, or holding down jobs for which he is not reporting income, is lacking in cogent evidence.

Her claim, for example, that the father and his current wife are still living together and are not separated, is based on some of the mother’s friends telling her that he has been seen in public with his current wife. This is hardly proof of anything. [ 18 ] In any event, whether or not he resides with his current spouse, and regardless of what assets she may have, this is not the basis on which child support is calculated.

It is done on the basis of the reported income of the payor. [ 19 ] The Court has also considered the rather unusual arrangement of the father paying $500.00 rent per month to his estranged spouse while still living in a townhouse owned by her, while she lives with her own mother. Nonetheless, the father has provided a letter from his current partner confirming this information.

Although suspicious, the Court cannot properly or fairly infer that such a payment is only notional, or that it is a sham, and that he is either not really paying this amount, or he is, but receiving a “kick-back”. [ 20 ] Having regard to the financial materials filed, the Court determines the father’s income for the relevant years and child support payable as follows:

YEAR INCOME MONTHLY TABLE AMOUNT TOTAL AMOUNT OWING 2008 $14,216.00 $108.00 $1,296.00 2009 $10,773.00 $42.00 $504.00 2010 $12,030.00 $66.00 $792.00 2011 $11,926.00 $64.00 $768.00 2012 $24,960.00 $199.00 (January 1 to May 31) $995.00 [ 21 ] The total amount of arrears of child support from January 1, 2008 to May 31, 2012 is $4,356.00. [ 22 ] The ongoing child support payable as of June 1, 2012 will be $199.00 per month. 4:0 ORDER [ 23 ] The Court makes the following final order: 1.

The final order of Brownstone J., dated November 27, 2007, is varied, to the extent that the child support obligation by the applicant father, Samid Shehara, from August 20, 2003 to December 31, 2007 is terminated, and that any and all arrears of child support between these two dates is hereby rescinded. 2. Arrears of child support from January 1, 2008 to May 31, 2012 is fixed at $4,356.00.

The said applicant father shall pay the amount of $301.00 per month toward the outstanding arrears until such time as they have been paid in full, commencing June 1, 2012, and on the first of each successive month thereafter. 3. The said applicant father shall pay ongoing child support to the said respondent mother on behalf of the said child, Sally Shehara, born November 6, 1997, in the amount of $199.00 per month on annual income of $24,960.00, commencing June 1, 2012. 4. A support deduction order shall issue. 5.

The said applicant father shall provide the said respondent mother with a copy of his income tax return and notice of assessment by June 30 of each year, commencing in 2012. Released: June 22, 2012 ______________________________ Justice S.R. Clark