Court File and Parties
Ontario Court of Justice
Between:
Aisha Mohamed Acting in Person Claimant
- and -
Ilyas Nafyar Osman Not Responding to Application Respondent
Heard in Chambers: March 31, 2020
Justice: S.B. Sherr
Endorsement
Part One – Introduction
1The claimant has brought an application pursuant to the Interjurisdictional Support Orders Act (ISOA) seeking an order that the respondent pay her child support for the parties' three children, who are ages 7, 4 and 1 (the children).
2The respondent did not file an Answer to the claimant's application. He also did not attend at court on the written hearing date of March 31, 2020.
3The issue for the court to determine is what orders it should make, if any, given the restrictions on the public's access to the court because of the COVID-19 pandemic.
Part Two – The Evidence
4The claimant is 32 years old. The respondent is 30 years old.
5The claimant lives in Minnesota, in the United States. The respondent lives in Ontario.
6The parties married in Minnesota in January 2013.
7The parties have separated and the children have lived with the claimant in Minnesota since the separation.
8The mother completed her application for support in Minnesota on September 18, 2020.
9The notice of hearing was issued in this court on January 22, 2020.
10The respondent was served with the application and notice of hearing on January 29, 2020. He has not responded to the application in any manner.
11The claimant deposed that she has just started working part-time in student transport. She earned annual income of less than $9,000 (U.S. funds) in 2019.
12The claimant deposed that the respondent is employed as a taxi driver. She had few particulars of his income. She deposed that the respondent was paying her $600 (U.S. funds) each month for the first few months of 2019 prior to his taking a trip to Africa.
Part Three – Legal Considerations
13Clause 37 (4) (a) of the Ontario Family Law Rules (the rules) provides that the respondent shall file within 30 days after service of the notice of hearing an Answer in Form N under the general regulation, an affidavit setting out the evidence upon which he relies and a financial statement in Form K.
14Subrule 37 (5) of the rules sets out that the respondent is required to file a financial statement whether he or she intends to dispute the claim or not.
15Subrule 37 (7) of the rules sets out that unless the court orders otherwise under subrule 37 (9), the application shall be dealt with on the basis of written documents without the parties or their lawyers needing to come to court.
16The respondent may request an oral hearing, pursuant to subrule 37 (8) of the rules by filing a motion form (Form 14B) within 30 days of being served with the notice of hearing. The respondent did not make this request.
17The court may order an oral hearing, pursuant to subrule 37 (9) of the rules, on its own initiative, if it is satisfied that an oral hearing is necessary to deal with the case justly.
18Paragraph 3 of section 13 of the ISOA sets out that if entitlement to child support is established, the Ontario court shall apply Ontario law in determining the amount of support for the claimant.
19Section 14 of the ISOA sets out the types of orders the court can make as follows:
Order
14 (1) On the conclusion of a hearing, the Ontario court may, in respect of a claimant, a child or both,
(a) make a support order;
(b) make a temporary support order and adjourn the hearing to a specified date;
(c) adjourn the hearing to a specified date without making a temporary support order; or
(d) refuse to make a support order.
Retroactivity
(2) The Ontario court may make a retroactive support order.
Periodic Payments or Lump Sum
(3) A support order may require support to be paid in periodic payments, as a lump sum, or both.
Choice of Law
(3.1) A support order shall specify the law applied in making the order, and if the order does not specify the law applied, the order is deemed to have been made under Ontario law.
Reasons for Refusal
(4) If the Ontario court refuses to make a support order, it shall give written reasons for its decision and send them to the designated authority.
20Subsection 3 (1) of Ontario's Child Support Guidelines (the guidelines) reads as follows:
Presumptive Rule
3 (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is
(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and
(b) the amount, if any, determined under section 7.
Part Four – Should the Court Proceed with the Hearing on an Uncontested Basis?
21Ordinarily, the court would proceed with the claimant's application on the basis of the written material filed since the respondent did not file any of the required responding materials, did not request an oral hearing and did not attend at court on the date set out in the notice of hearing.
22However, these are not ordinary times. Due to the COVID-19 pandemic, the Ontario Court of Justice has significantly restricted the public's physical access to the courthouse. At this time, only urgent matters are being heard and must be pre-approved to be heard by a judge. The public has been discouraged from entering the courthouse. There are strong warnings from all levels of government for people to not leave home except for essential purposes.
23These are considerable obstacles for a self-represented litigant who might wish to respond to the claimant's application.
24In deciding whether to proceed, the court has taken into account that the respondent did not file materials by the deadline of March 2, 2020 – a date preceding the courthouse restrictions. However, the reality of ISOA cases is that many self-represented litigants do not file written material in advance of the notice of hearing date. Many just attend on the return date. Sometimes, they have the necessary paperwork. However, often the paperwork is incomplete, and the court gives direction about what they must file with filing timelines.
25The court also must consider that the claimant is presently supporting three children on her own, with no help from the respondent. This is not acceptable, particularly since the respondent has not filed any responding material or complied with the rules.
26Balancing these considerations, the court will adjourn the hearing and give the respondent one final opportunity to file the required responding material. However, the court will also exercise its authority under clause 14 (1) (a) of the ISOA and make a temporary support order.
Part Five – How Much Temporary Child Support Should the Court Order?
27The claimant had little information about the respondent's income. She knows that he is a taxi driver, gave her $600 US monthly for a few months in early 2019 and then was able to afford a trip to Africa.
28The court draws an adverse inference against the respondent due to his failure to provide a financial statement or any income information as required by the rules. See: Charron v. Carriere, 2016 ONSC 4719.
29Absent the COVID-19 pandemic, based on this information, the court would have assessed the respondent's annual income at $40,000. However, the court is very aware that the pandemic is having a detrimental financial impact on taxi drivers and will make a more conservative estimate of the respondent's income on a temporary basis.
30On a temporary basis, the court will impute the respondent's annual income at $25,000. This can be adjusted on the return date regarding the amount and the start date. The court wants the respondent to know that this amount might be fixed at a much higher amount if he does not file the required financial documentation.
31The monthly guidelines table amount for three children at an annual income of $25,000 is $517 (Canadian). The start date of the temporary order will be February 1, 2020, just after the respondent was served with the application.
32The court will adjourn this case for 6 months. Hopefully, this return date will provide the court with a clearer picture of the respondent's income.
33The claimant will also be given the opportunity to file additional evidence about the respondent's income.
Part Six – Conclusion
34An order shall go on the following terms:
a) The hearing is adjourned until September 29, 2020 at 10:00 a.m.
b) The claimant has until July 31, 2020 to serve and file any further affidavit material.
c) The respondent has until August 31, 2020 to serve and file written responding material as required by the rules, and if he chooses to do so, request an oral hearing.
d) The respondent shall pay temporary child support to the claimant in the amount of $517 (Canadian) each month, starting on February 1, 2020. This is the guidelines table amount for three children, based on the respondent's annual income assessed at $25,000. This is subject to adjustment regarding the amount and the start date at the final hearing.
e) A support deduction order shall issue.
f) This endorsement shall be sent by court staff to the parties and to the Designated Authority of Ontario - Family Responsibility Office, pursuant to the ISOA.
Released: April 3, 2020
Justice S.B. Sherr
Footnotes
1Under section 1 of the ISOA, a person who brings an originating application for support is called the claimant. Section 5 of the ISOA sets out the process to follow for a claimant in making a support claim. A person bringing a variation application is called the applicant. See: Section 27 of the ISOA.
2The claimant did not provide the court with the date of separation.
3The general regulation is Ontario Regulation 55/03 (General) made under the ISOA.
4It should also be clearer by the return date what financial relief, if any, the respondent is entitled to from the federal and provincial governments, for lost income arising out of the pandemic.