Court File and Parties

DATE: May 3, 2021 COURT FILE NO.: D31305/19

ONTARIO COURT OF JUSTICE

B E T W E E N:

MUNA YASIN MUSSA

APPLICANT

NILUFA HUSEIN, for the APPLICANT

- and -

ABDELAZIZ KELIFA HAJI IMAM

RESPONDENT

VILMA RADFAR, for the RESPONDENT

HEARD: APRIL 29, 2021

JUSTICE S.B. SHERR

Endorsement

Part One – Introduction

[1] On January 28, 2021, the court heard a motion brought by the applicant (the mother) to strike the respondent’s (the father’s) Answer/Claim, due to his failure to pay child support, pursuant to a temporary court order dated December 9, 2019.

[2] The court gave oral reasons for decision that day. It ordered the father to pay the mother $3,000 by March 15, 2021 and $3,000 by April 15, 2021. The court further ordered that if the father failed to make either payment, his Answer/Claim would be struck, regarding the financial issues only. The court also ordered that, pursuant to subrule 1 (8) of the Family Law Rules (all references in this endorsement to rules are to the Family Law Rules), the father cannot proceed with any motion until he makes these payments.

[3] On February 17, 2021, the court ordered the father to pay the mother $4,000 for her costs of the motion (the costs order). The court endorsed that it would hear submissions on the return date regarding how the costs should be paid. See: Mussa v. Imam, 2021 ONCJ 92.

[4] The father paid the mother $3,000 by March 15, 2021. He did not make his $3,000 payment on April 15, 2021. He paid the mother $1,800 on April 27, 2021.

[5] The mother has asked that the father’s Answer/Claim be struck, regarding the financial issues only, in accordance with the January 28, 2021 order. She also seeks payment of the costs order. The father asked the court at the April 29, 2021 court date (no written motion was made) to extend the time for him to comply with the January 28, 2021 order and to not strike his Answer/Claim. He also asked that he not be ordered to pay costs at this time. He submitted that he does not have the financial means to pay the amounts ordered by the court and that he has done his best to comply with the January 28, 2021 order.

[6] The court, on April 29, 2021, dismissed the father’s request to extend the time for him to comply with the January 28, 2021 order and struck his Answer/Claim on the financial issues only. The court advised the parties that written reasons would follow. These are those reasons.

Part Two – Background facts

[7] The mother is 36 years old. The father is 38 years old.

[8] The parties were married in 2006 and separated on June 9, 2019.

[9] The parties have three children. They live with the mother and visit with the father.

[10] The mother issued this application on October 9, 2019.

[11] On December 9, 2019, the parties consented to a temporary order that included a term that the father pay the mother child support of $680 each month, based on the father’s annual income of $33,000.

[12] The father paid very little support pursuant to this order and was over $8,000 in arrears when the mother moved to strike his Answer/Claim.

Part Three – Striking the father’s Answer/Claim on the financial issues

[13] The reasons why the court dismissed the father’s request for an extension of time to comply with the January 28, 2021 order and struck his Answer/Claim, on the financial issues only, are as follows:

a) The father has an abysmal support payment history. He paid no child support before the mother brought the case to court. He only paid nominal support after the December 19, 2019 court order.

b) Despite this payment history, the father was given an opportunity on January 28, 2021 to continue to participate in this case on the financial issues, if he paid the amounts ordered. The court was very clear with the father, in its oral reasons on January 28, 2021, about the consequences of failing to make the payments ordered.

c) The court determined on January 28, 2021 that the father had the ability to pay the amounts ordered.

d) In its costs endorsement, the court found that the father had acted unreasonably on the motion. He paid no support for over one year despite purchasing and financing a $60,000 vehicle in 2020. He had callously preferred his own interests to those of the children, creating hardship for them and the mother during the pandemic.

e) The father did not appeal the January 28, 2021 order, or the costs order.

f) There have been no changes in the father’s financial circumstances since the January 28, 2021 order was made. He claimed that he was only receiving Canada Emergency Recovery Benefits (CERB) at that time. He says that he continues to receive that amount today.

g) The father has failed to pay any ongoing child support to the mother since the January 28, 2021 order was made. He continues to owe the mother close to $6,000 of child support.

h) The father could have sold his luxury vehicle to meet his child support obligations. He has not done that. There was no evidence that he has tried to do this. The father continues to make large monthly payments on that vehicle. He continues to prefer his own interests to those of the children.

i) The father has not filed documentary disclosure of his 2020 or 2021 income.

j) It would not be just in these circumstances to permit the father to continue to litigate the financial issues.

[14] The father is permitted to participate in this case regarding the parenting issues, despite his breach of the support order.

Part Four – The father’s participation at the support hearing

[15] Subrule 1 (8.4) reads as follows:

CONSEQUENCES OF STRIKING OUT CERTAIN DOCUMENTS

1 (8.4) If an order is made striking out a party’s application, answer, motion to change or response to motion to change in a case, the following consequences apply unless a court orders otherwise:

1. The party is not entitled to any further notice of steps in the case, except as provided by subrule 25 (13) (service of order).

2. The party is not entitled to participate in the case in any way.

3. The court may deal with the case in the party’s absence.

4. A date may be set for an uncontested trial of the case.

[16] Pursuant to subrule 1 (8.4), the court may set a date for an uncontested trial once it has struck the father’s amended Answer/Claim. It also has the discretion to determine to what extent the father may participate in this case.

[17] In exercising this discretion the court considered the primary purpose of the rules, as set out in rule 2– to deal with cases justly.

[18] After discussion, counsel agreed on the process for the support hearing and the extent of the father’s participation at that hearing as follows:

a) A date was set for the hearing where both parties were available.

b) The parties agreed to a timeline for the mother to serve on the father’s counsel and file with the court a Form 23C affidavit for the hearing.

c) The father is not permitted to file further evidence for the hearing.

d) The father is entitled to be present at the hearing.

e) The father will not be permitted to examine the mother, call witnesses or give evidence at the hearing.

f) The father will be entitled to make submissions on the evidence filed for the hearing or that is orally provided at the hearing by the mother. This evidence will include any financial statement that the father has filed to date in the continuing motion record.

Part Five – Payment of costs order

[19] The court advised the parties that it would determine how the February 17, 2021 costs order would be paid at the support hearing. The father will be entitled to make submissions on this issue at that time.

Part Six – Conclusion

[20] An order will go on the following terms:

a) The father’s request to extend the time to comply with the court order dated January 28, 2021 is dismissed.

b) The father’s Answer/Claim is struck, on the financial issues only, effective April 29, 2021.

c) The hearing of the support issues will take place on July 5, 2021 at 2 p.m., by zoom videoconference.

d) The father may participate in the hearing by making oral submissions on the evidence filed, or that is orally given by the mother at the hearing. This includes any financial statements filed to date by the father in the continuing motion record.

e) The father is not permitted to file or call further evidence for the hearing. He is not permitted to examine the mother.

f) The mother shall serve and file her Form 23C trial affidavit at least 10 days before the hearing.

g) The court will determine how the costs order should be paid at the hearing on July 5, 2021. The parties will be invited to make further submissions on this issue.

h) At the request of the parties, a settlement conference of the parenting issues will be held following the hearing of the support and costs issues.

i) Costs of this step in the case are adjourned to the return date.

[21] The court strongly urges the parties to resolve the remaining issues in this case without further court intervention.

Released: May 4, 2021 _____________________ Justice S.B. Sherr