Court File and Parties

Ontario Court of Justice

Date: November 26, 2018

Court File No.: Toronto D10049/17

Between:

Saima Akhtar Akhtar Applicant

— And —

Kashan Khalid Respondent

Before: Justice Roselyn Zisman

Heard on: November 8, 2018

Reasons for Judgment released on: November 26, 2018

Counsel:

• Dilani Gunarajah, counsel for the applicant
• Navjot Gewal, counsel for the respondent

Endorsement on Motions

Zisman, J.:

Introduction and Background

[1] This is a motion by the Applicant (mother) for an order striking the Respondent's (father) pleadings and for an order of child and spousal support based on imputing an income of $95,800 to the father retroactive to October 2016. The father also filed a motion requesting that income be imputed to him at $76,960 or in the alternative for lesser amounts and for specified Skype access.[1]

[2] The parties met on an online Muslim dating website in March 2013. At the time the mother was residing in Toronto. The father was residing in New York. The parties were married on October 11, 2013. According to the mother, she moved to New York in June 2013 and the parties began to live together. According to the father, they began to live together in July 2014.

[3] The parties have two children, AK born […], and MK born […].

[4] The mother is currently 37 years old and the father is 39 years old.

[5] The mother returned to Canada in June 2015 due to her allegations of abuse in the relationship. The father came to Canada in June or July 2016 and the parties resided together until their separation on September 14, 2016.

[6] On September 14, 2016 the father was charged with 3 counts of uttering threats to cause bodily harm to the mother. Those charges were withdrawn on November 16, 2016 and he entered into a 3 month peace bond. The father does not have a criminal record.

[7] In January 2017, the mother filed an Application but withdrew that Application after the parties attempted a brief reconciliation but did not reside together.

[8] The mother commenced an ISO application for child support in Michigan where the father was residing at the time but that application was dismissed in May 2018 as the father stated that he was returning to Pakistan in June 2018.

[9] As of March 2017, the father has been voluntarily paying the mother $500 as child support on the basis that this was all he could afford.

[10] The mother commenced this Application in September 2017. However, there were several adjournments requested by mother's counsel as the father had not been served.

[11] At the case conference on July 24, 2018 the parties agreed to orders for temporary custody to the mother, Skype access to the father every Tuesday and a disclosure order. Leave was granted to the mother to amend her Application to seek child support and a sharing of any section 7 expenses.

[12] A further case conference was held on September 20, 2018 and the father participated by telephone. The father was ordered to pay costs of $500 for a wasted attendance as he had not filed his financial statement and had not provided his financial disclosure. A timetable was ordered for the filing of the father's disclosure and for a motion to proceed on November 8, 2018.

Mother's Financial Circumstances

[13] The mother is a qualified dental hygienist. She has not worked since June 2014.

[14] The mother deposed that she only worked for a few hours on call after AK was born and then she became pregnant with their second child. Due to medical reasons she was unable to work during her pregnancy.

[15] The mother has not applied for any jobs since the birth of her second child. She has not taken any educational courses or updated her resume. The mother deposes that she has devoted herself to caring for her two young children.

[16] After the separation, the mother received some financial assistance from her family and since March 2018 she has been in receipt of social assistance.

[17] The mother's Notices of Assessment indicate her income as follows:

Year	Income
2017	$14,546
2016	$23,763
2015	$9,483

[18] The mother did not offer any explanation as to why her income was greater in 2016 but for this motion it is not of significance. However, if the mother was working in that year this may be significant for any future orders.

[19] The mother's financial statement sworn July 24, 2018 indicates that her monthly income consists of social assistance payment of $1,040, child tax benefit of $1,457 and child support of $500.

Father's Education Background and Financial Circumstances

[20] The father received his medical degree from Pakistan in 2005 and he worked in the intern and residence training programs in Pakistan up until 2009.

[21] In 2009 he entered the United States pursuant to the H-1B Visa program which grants him status for 3 years with a possible extension but only for a maximum stay of 6 years.

[22] Under this program the father commenced his residency at Baylor College of Medicine in Houston Texas from October 2009 to July 2013. He then enrolled in a community college program from July 2013 to June 2014 to improve his English.

[23] The father completed the last year of his residency at Westchester Medical Centre in Valhalla, New York from July 1, 2014 to June 30, 2015.

[24] Following the completion of his residency the father was required to complete a fellowship in his specialty in Oncology Pathology. The father then commenced his fellowship at Staten Island University Hospital from July 2015 and to June 2016. This training program provided him with a salary of $74,000 US or $95,800 Canadian.

[25] In accordance with the requirements of his H-1B visa, the father was required to reside outside of the United States for 1 year and in June 2016 he travelled to Canada pursuant to a Visitor Visa. The father deposes that he was not granted a work permit due to his outstanding criminal charges. However, the father's criminal changes were withdrawn by November 2016. The mother deposes that the father worked for as a teacher at a private institution and was paid cash which is denied by the father.

[26] The father then applied to return to the United States and was able to secure a J1 Visa for one year that allows foreign physicians to participate in graduate medical education programs or training. That Visa does not permit the father to practice as a medical physician in the United States.

[27] The father secured another fellowship in Cytopathology at Wayne State Medical University from July 2017 to June 2018.

[28] He then applied to renew his Visa for another year and it was extended to June 30, 2019. The father obtained his current fellowship for training in Hematopathology at the hospital at the University of Pennsylvania.

[29] The father deposes that he is not entitled to apply for any further extensions and that as of June 30, 2019 he will be required to leave the United States. He will be returning to Pakistan and deposes that although he does not know how much he will earn, the salaries earned by doctors in Pakistan are very low.

[30] The father further deposes that to be lawfully employed as a physician in the United States he is required to complete the two-year foreign residence requirement in order to gain eligibility to apply for Visa status and would also need an employer to sponsor him.

[31] Based on the W-2 Wage and Tax Statement which is the equivalent of a Canadian T-4 and the Internal Revenue Service Statement the father's income (converted to Canadian funds[2]) is as follows:

Year	Income
2016	$51,963.50
2017	$37,406.93
2018	$74,009.76 (estimate)

Issues to be Determined

1. Should the father's pleadings be struck for non-disclosure?
2. What is the father's actual income and should income be imputed to the father?
3. How much child support should the father pay and as of what commencement date?
4. Is the mother entitled to spousal support and if so, in what amount and as of what commencement date?

Striking Pleadings

[32] In family law cases, pleadings should only be struck in "egregious and exceptional circumstances" which includes willful non-compliance with a court order to provide financial disclosure[3] and where no other remedy would suffice.[4]

[33] As stated in [Purcaru v. Purcaru][5], at para 49, the exceptional nature of this remedy is rooted in the significance of the adversarial system:

The adversarial system, through cross-examination and argument, functions to safeguard against injustice. For this reason, the adversarial structure of a proceeding should be maintained whenever possible. Accordingly, the objective of a sanction ought not to be the elimination of the adversary, but rather one that will persuade the adversary to comply with the orders of the court.

[34] In assessing whether or not to strike pleadings the court should consider the disclosure provided, an itemization of the disclosure that has not been provided, whether there has been wilful disobedience of a court order and proportionality.[6]

[35] Mother's counsel initially submitted that the father's pleadings should be struck for the following reasons:

1. The father was required to provide financial disclosure by August 30th and did not provide his disclosure until September 19, 2018; and

2. On September 20th mother's counsel wrote to father's counsel to advise of the disclosure that was not provided namely, missing bank statements from all bank accounts, credit card statements, letter of employment, Notices of Assessment for 2016 and 2017 and 2016 tax return and proof of Airbnb income.

[36] Shortly thereafter the father retained new counsel who is the counsel who argued this motion. The father's affidavit sworn October 29, 2018 had extensive disclosure attached as exhibits.

[37] Mother's counsel then submitted that the father had still not provided a copy of his employment contract, banks statements from August 2016 to December 2016, 2016 tax return and failed to provide proof of his debts as listed on his financial statement.

[38] Father's counsel submitted that the father had attempted to provide all of the outstanding disclosure, explained any missing disclosure and provided mother's counsel with a consent to obtain any missing bank statements. Counsel also pointed out that in fact the father had provided copies of his 2016 and 2017 W-2 Wage and Tax Statement and Internal Revenue Service record.

[39] It was unclear after mother's counsel's submissions whether or not she was still requesting the court strike the father's pleadings.

[40] In view of the serious consequences of striking pleadings, I find there is no basis to do in this case for the following reasons:

1. Father was previously ordered to pay costs for not providing his disclosure;

2. Father has now provided most of the significant disclosure that the court requires to decide this motion;

3. Mother's counsel could not articulate the relevance of any missing disclosure; and

4. It is open to mother's counsel to request that the court draw a negative inference from the father's lack of providing any specific item of disclosure.

Imputing Income

[41] The law with respect to imputing income is well settled. Section 19(1)(a) of the Child Support Guidelines provides as follows:

s. 19(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include,

(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse.

[42] The court in Drygala v. Pauli interpreted this clause to indicate that there is no need to find a specific intent to evade child support obligations before income can be imputed. There is no element of bad faith. A parent is intentionally unemployed where he or she chooses not to work when capable of earning an income. The court further held that, in consideration of what income should be imputed, a court should consider what is reasonable in the circumstances. Factors to be considered are age, education, experience, skills and health of the parent, availability of job opportunities, and the number of hours that can be worked in light of the parent's overall obligations including educational demands and the hourly rate that a parent could reasonably be expected to obtain.

[43] In this case, mother's counsel seeks to impute income to the father at an income of $94,800 Canadian ($74.000 US) based on the amount of income he earned according to his fellowship contract from 2015 to 2016. No submissions were made as to why his actual income subsequent to the separation should not relied upon. There was no evidence presented that the father was earning any other income or that he could have obtained more lucrative contracts.

[44] I expressed some concerns that the father had only provided his letters of offer for the fellowships for the years 2017 to 2018 and 2018 and 2019 and that the actual contracts with the salary were not provided. However, the W-2 statements were provided as well as pay stubs that confirm the father's stated income. The father also did not explain why he was able to obtain a more lucrative contact in 2015 to 2016 than his subsequent contracts. These omissions raise some concerns but overall the father has provided sufficient evidence on this motion as to his actual income.

[45] The father did not file his complete tax returns with his affidavit and I am uncertain whether or not they were disclosed to mother's counsel. However, mother's counsel did not raise this an issue so I infer that there is no basis to dispute the father's stated income.

[46] Mother's counsel raised some issues with respect to various bank transactions by the father to suggest that the father may have another source of income. However, at this stage of the proceedings I find that the father in his affidavit has adequately explained those transactions. I therefore, find that the father has no other source of income other than his stated income.

[47] The mother's counsel submitted that the father may be able to further extend his Visa and remain in the United States and that even if he returns to Pakistan that an American trained doctor could earn a good salary in Pakistan. However, for the purposes of determining the father's income for this motion, these submissions are not relevant.

[48] I have considered that this is a temporary motion and such motions are based on limited evidence without the benefit of cross-examination and that none of the evidence has been scrutinized as it will be if this matter proceeds to trial. Temporary orders are meant to come to a reasonable acceptable solution to a difficult problem pending trial.

[49] Accordingly, at this stage of the proceedings, I find that there is no basis to impute income to the father and that his support obligations should be based on his actual income.

Child Support

[50] Although this is a temporary motion, I find that child support should be payable as of October 1, 2016 as there is evidence that the mother previously attempted to obtain child support through an ISO application and based on the submissions made by father's counsel and the calculations she has provided it does not appear that the father is disputing the commencement date for child support.

[51] Based on the father's 2016 income of $51,964, as of October 1, 2016 he should have paid child support[8] for 1 child in the amount of $469 for 3 months for a total owing of $1,407.

[52] Based on the father's 2017 income of $37,407, he should have paid $329 for 1 child for 5 months for a total owing of $1,645. As of June 1, 2017 he should have paid $539 for 2 children for 6 months and for December 2017 he should have paid $564 for 2 children for 1 month. The total owing is $5,443.

[53] Based on the father's estimated income for 2018 of $74,009 he should have paid $1,124 for 2 children. As of November 12, 2018 the total owing is $12,364.

[54] As of March 1, 2017 the father has paid the mother $500 per month and assuming he paid her that amount up to an including November 1, 2018 he has paid $10,500.[9]

[55] Therefore the total arrears owing are $19,214 less payments of $10,500 for a balance due of $8,714. The father claimed a further deduction of $1,100 based on the mother receiving a refund due to him but as this is disputed by the mother I have not given the father credit for this amount.

[56] Neither counsel made submissions as to the rate of repayment of the arrears. Accordingly, I will leave enforcement to the Family Responsibility Office.

Spousal Support

[57] Section 30 of the Family Law Act ("FLA") provides that every spouse has an obligation to provide support for the other spouse "in accordance with need, to the extent that he or she is capable of doing so."

[58] In considering if an Applicant is entitled to spousal support, whether on a temporary or final basis, the court is required to consider the objectives of a spousal support order set out in subsection 33(8) of FLA as follows:

(8) An order for the support of a spouse should,

(a) recognize the spouse's contribution to the relationship and the economic consequences of the relationship for the spouse;

(b) share the economic burden of child support equitably;

(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and

(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home). R.S.O. 1990, c. F.3, s. 33 (8); 1999, c. 6, s. 25 (5); 2005, c. 5, s. 27 (9).

[59] In Bracklow v. Bracklow, the Supreme Court of Canada recognized three bases for an award of spousal support:

1. compensatory based on the economic circumstances of each spouse's role during the marriage;

2. non-compensatory based on need in circumstances where a spouse cannot become self-sufficient; and

3. contractual based on an agreement between the parties.

[60] It is submitted by father's counsel that the mother has not established an entitlement to spousal support based on a contractual, compensatory or need based basis due to the short length of the marriage and the mother's ability to support herself. He also submits that if spousal support is ordered he does not have the financial means to pay spousal support.

[61] The father provided evidence with respect to the availability of jobs for dental hygienists and that the mother could apply for subsidized daycare. It is submitted that the mother does not wish to work as opposed to her inability to work. It is submitted that income should be imputed to the mother who could earn $37 per hour and if working full-time could earn $76,960 or part-time $46,176 or in the further alternative minimum income of $29,120 should be imputed to her.

[62] It is the mother's position that based on her need to care for two young children that it is impractical for her to work either full or part-time as the cost of babysitting would exceed what she could earn. She did not provide any evidence as to the cost of babysitting nor has she made any inquires as to whether or not she would qualify for a daycare subsidy.

[63] Neither counsel made any submissions with respect to the test for spousal support on temporary motions.

[64] However, it is important to consider the relevant applicable principles that should be applied on temporary motions. Those principles are as follows:[11]

a) temporary support is to provide income for the dependent spouse from the time the proceedings were instituted until trial. It should only be ordered when a prima facie case for entitlement has been made out;

b) on temporary support motions, needs of the dependent spouse and the ability of the other spouse to pay support take on greater significance than the need to achieve self-sufficiency;

c) the court need not conduct a complete inquiry into all aspects and details to determine what extent either party suffered an economic advantage or disadvantage as a result of the relationship. That is to be left for the trial judge;

d) temporary support is a holding order to maintain the accustomed lifestyle if possible pending final disposition as long as the claimant is able to present a triable case for economic disadvantage;

e) temporary support is to be based on the parties' means and needs, assuming that a triable issue exists. The merits of the case in its entirety must wait a final hearing;

f) temporary support should be ordered within the Spousal Support Advisory Guidelines ("SSAG") range unless exceptional circumstances dictate otherwise.

[65] Applying these principles, I find that the mother gave up her opportunity for a career as a dental hygienist when she married the father and had two children. As a result the mother has established a prima facie case that she has suffered an economic disadvantage as a result of the marriage.

[66] The issue of the short length of the marriage may be a factor in determining the both the amount and duration of spousal support. But that issue should be determined at trial and not on this temporary motion. As indicated during the submissions, for the next court attendance the mother should provide a plan for a return to the workforce and make inquiries with respect to the cost of daycare and if she would be eligible for any subsidies.

[67] The mother has a present need for spousal support as she is in receipt of social assistance. As established in the case law, a spouse's need for support takes on greater significance at this stage than her ability to become self-sufficient.

[68] I therefore find that the mother has established a prima facie case for entitlement both on a compensatory and need basis and that income should not be imputed to her for this motion.

[69] The next step is to determine the Respondent's ability to pay.

[70] Based on the father's current estimated income of $74,009 and the mother's receipt of social assistance of $12,480 the monthly range of spousal support, in accordance with the SSAG, would be $624, $803 and $991.

[71] In this case, I would order the low range as the SSAG are based on the tax deductibility of spousal support in accordance with Canadian tax law, but I was not provided with any evidence as to whether or not the father is entitled to claim such a deduction on his American tax return. Further, the father will be writing several accreditation examinations that are given out of state and will cost about $7,600 not including the cost of travel, accommodations, state licensing fees, credential verifications and books. I infer that successfully completing these exams would increase his earning capacity either in Pakistan or elsewhere and ultimately will benefit the family. I have also considered that the father is required to pay child support arrears in addition to his child support and spousal support obligations.

[72] I am not prepared to order any retroactive spousal support as the issue of the duration of spousal support will be an important consideration and should be determined either on consent or by the trial judge. If spousal support is ordered retroactive to October 2016 as submitted by mother's counsel, the issue of the duration of spousal support may be moot by the time this matter proceeds to trial.

Conclusion

[73] There will be a temporary order as follows:

1. The Respondent shall pay child support to the Applicant for the benefit of the two children, AK born […], and MK born […] in accordance with the Child Support Guidelines in the amount of $1,124.00 per month as of December 1, 2018.

2. The Respondent shall pay child support arrears from October 1, 2016 up to and including November 1, 2018 in the amount of $8,896.00.

3. The Respondent shall pay to the Applicant spousal support of $624.00 per month as of December 1, 2018.

4. The Respondent shall have Skype access to the children every Sunday at 6:00 p.m.

5. The Respondent's time to serve and file an Amended Answer, if required, is extended to December 14, 2018.

6. Support Deduction Order to issue.

[74] If either party seeks their costs, they shall serve and file their written costs submissions by December 14, 2018. The other party will have until December 28, 2018 to respond. The costs submissions shall not exceed 3 pages, not including any offer to settle or bill of costs. The costs submissions should be delivered to the trial coordinator's office.

Released: November 26, 2018

Signed: Justice Roselyn Zisman

Footnotes

[1] Although the motion was originally scheduled with respect to support issues only, counsel agreed on terms of Skype access on Sundays at 6:00 p.m. The Respondent's Notice of Motion seeks imputation of an income of $76,900 to himself, the submissions and calculations were all based on income of $74,009 which is the number the court used.

[2] I have relied on the conversion rates submitted by father's counsel as proof of those rates were appended to various exhibits and mother's counsel did not dispute the rates.

[3] Manchanda v. Thethi, 2016 ONCA 909 at paras. 7 and 9

[4] Purcaru v. Purcaru, 2010 ONCA 92 at 47

[5] supra, at para. 49

[6] Owen v. Owen, 2018 ONSC 1083

[7] Drygala v. Pauli, 61 O.R. (3d) 711

[8] The child support guidelines of December 31, 2011 were in place until November 22, 2107 when the current child support guidelines were proclaimed. The calculations are based on the child support guidelines in place at the time child support was due. Neither counsel's calculations took this change into consideration in preparing their respective calculations.

[9] If the father has not paid $500 per month up to November 1st he can either pay the mother any arrears owing to November 1st or mother's counsel can request an amendment to the arrears owing on the return date.

[10] Bracklow v. Bracklow, [1999] 1 S.C.R. 420

[11] Kowalski v. Grant, 2007 MBQB 235; Robles v. Kuhn, 2009 BCSC 1163; Decker v. Fedorsen, 2010 ONCJ 618