



COURT OF APPEAL FOR ONTARIO

CITATION: Abbas v. Albohamra, 2020 ONCA 740

DATE: 20201123

DOCKET: C68083

Feldman, Simmons and Harvison
    Young JJ.A.

BETWEEN

Yahya Abbas

Applicant

(Appellant in Appeal)

and

Methaq Albohamra

Respondent

(Respondent in Appeal)

Ronald B. Moldaver Q.C., for the appellant

Elaheh Aiaseh, for the respondent

Heard: November 4, 2020 by videoconference

On appeal from the order of Justice McSweeney
    of the Superior Court of Justice, dated January 28, 2020.

REASONS FOR DECISION

[1]

This is the second level of appeal of an order
    for child support made by the trial judge by imputing income to the payor
    father based on inferences drawn from his lifestyle, which indicated that he
    must have had sources of income beyond the amount declared based on his income
    tax T4.

[2]

The trial judges calculation method was to use
    the quantum of the voluntary monthly support payments that the father had made
    over a number of years to the mother as the basis for discerning from the Child
    Support Guidelines how much income he would had to have been earning to be required
    to make such payments. The appellant fathers position on the appeal is that
    this method was impermissible and constituted an error of law.

[3]

The first level appeal judge used her own method
    of calculating the amount of income to be imputed in order to perform a check
    on the acceptability of the trial judges method, by grossing up the
    appellants stated expenses and the voluntary payments for income tax. The
    amount the first level appeal judge arrived at was somewhat lower than the
    trial judges amount, but close enough to satisfy her that there was no
    unfairness in the circumstances where the payor was found not to have disclosed
    his true income and ability to pay at the trial.

[4]

In our view, the trial judge and the first level
    appeal judge made no error, based on the record, in imputing income to the
    father for the purpose of awarding child support. We agree with the appeal
    judge that the amount of the award is a matter of discretion to which deference
    is owed.

[5]

While it would have been preferable for the
    trial judge to use the method of grossing up expenses to draw inferences about
    the imputed income amount, we are not satisfied that the appeal judge made a
    reviewable error by endorsing the decision of the trial judge and dismissing
    the appeal. The appellant did not challenge the method used by the first level
    appeal judge or her calculations. His position was that there was no
    evidentiary basis to impute any income to the appellant. We reject that position.

[6]

The appeal is dismissed with costs fixed at $7,500.
    The parties are still waiting for the costs award from the trial judge.

K. Feldman J.A.

Janet Simmons J.A.

Harvison Young J.A.


