In Abbas v Albohamra 2020 ONCA 740, the Ontario Court of Appeal was tasked with determining whether the first appeal judge made an error in finding that the trial judge was correct to impute a higher income to the father than as stated on his T4. The court of Appeal affirmed that the appellate court made no error in its determination.
The father in this case has a reported T4 income of $105,000. However, his lifestyle did not match an individual who earns that level of income. He was living a much more lavish lifestyle, which suggests the court that there is undisclosed income that should be available for child support purposes.
In making its determination, the first appellate judge was tasked with answering the following questions:
- Did the Trial Judge Err in His Determination of the Quantum of Child Support?
- Did the Trial Judge Err in Finding That There Was a Basis to Impute Income to Mr. Abbas?
- Did The trial judge Err in His Determination of the Quantum of Income to be Imputed to Mr. Abbas?
STANDARD OF REVIEW ON APPEAL
- The standard of review flows from the Supreme Court of Canada decision in Housen v. Nikolaisen, 2002 SCC 33,  2 S.C.R. 235 (S.C.C.). On a question of law, the standard of review is correctness: Housen, at para. 8. On questions of fact or mixed fact and law, findings are not to be reversed unless the trial judge made a palpable and overriding error.
The law states that where the asserted income of a party is inadequate to explain expenditures of that party found on the evidence, imputation of income may be appropriate. The case of Bak v. Dobell, 2007 ONCA 304 confirmed that a payor’s lifestyle can be relevant for support purposes and imputing income. The court will use a person’s lifestyle to draw reasonable inferences about their actual income as opposed to their disclosed income. This ensures that payor’s cannot escape or skirt their responsibility by attempting to manipulate their income available for support.
The trial judges explanation for the imputing Mr. Abbas to such a high income ($420,000 as opposed to his declared $120,000) is as follows:
a) During the parties' relationship, Mr. Abbas paid $6,450 per month to Ms. Albohamra to support her and M.A. He also paid for Ms. Albohamra, her older children, and M.A. to travel internationally
b) While Mr. Abbas was making those monthly payments toward Ms. Albohamra's expenses, he was also supporting his wife Ms. Al-Shami and his other children
c) The evidence did not support a finding that during the years he supported Ms. Albohamra, Mr Abbas' own standard of living declined, or that he fell into debt in order to support the households of both of his wives.
d) Mr. Abbas testified regarding his lifestyle
i. That he lives in a 5,600 square foot home with three levels, four bedrooms, a walk-out basement and a swimming pool. This property is situated on a river, overlooks a golf course, and was listed on his financial statement at $1,600,000;
ii. That he owns a second property from which he derives rental income. This property was listed on his financial statement at $450,000;
iii. That he owns significant RRSPs listed on his financial statement at $280,000;
iv. That he owns exotic cars worth approximately $90,000; and
v. That the total value of all property owned is $2,780,000 as outlined on his financial statement.
e) Mr. Abbas confirmed that he is the sole owner of a business which has been in operation for more than 30 years and employs 230 employees.
f) There is no explanation for how, on an asserted income of $105,000, Mr. Abbas could afford the payments to Ms. Albohamra in addition to supporting Ms. Al-Shami and staying on top of his other expenses.
When questioned during cross-examination about the clear discrepancy in his income compared to his lifestyle, Mr. Abbas refused to explain the revenues of his company and how he determines his own salary.
The Court of Appeal for Ontario has repeatedly emphasized that the most basic, foundational obligation on both parties in family law matters is to fully disclose their financial information. The requirement is immediate, ongoing, and automatic, and should not require court orders. Additionally, the law states that “where the asserted income of a party is inadequate to explain expenditures of that party found on the evidence, imputation of income may be appropriate.
The appellate judge concurred with the Trial Judge that there was a significant discrepancy between Mr. Abbas' declared income, his lifestyle and his expenditures. The court advised that when such a discrepancy is present, the onus is on the individual purporting their income to be a certain amount to explain that difference. Unfortunately, Mr. abbas did not help his case as he provided no reasonable explanation for his expenditures.
In terms of the quantum, the trial judge did not err in their determination of quantum. The amount of income imputed to a payor is within the court's discretion. However, as noted, there must be some rational basis on the evidence that supports the selection of the figure to be imputed. Based on the evidence in front of the court, the judge made no reviewable error in imputing Mr. Abbas to an income of $420,000 for child support purposes.
This case is another reminder to payor’s of support that they cannot skirt their responsibilities by attempting to hide income, the truth will always come out when the light gets shown on ones lifestyle.
For more information, please call us at Feldstein Family Law Group P.C. or contact our firm online.