COURT FILE NO.: FS-045-FA 12684-0001

DATE: 20120621

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JOSEPH ISKANDAR

AND:
FAMILY RESPONSIBILITY OFFICE

BEFORE: PENNY J.

COUNSEL:
Mr. Iskandar in person
D. A. Edwards for the F.R.O.

HEARD: June 21, 2012

ENDORSEMENT

[ 1 ] This is a motion under Part Five of The Family Responsibility And Support Arrears Enforcement Act, 1996 for an order requiring the Director, Family Responsibility Office to refrain from directing the suspension of the applicant’s driver’s license.

[ 2 ] On December 3, 2004, this court made a temporary child support order requiring the applicant to pay $500 per month from December 10, 2004. On March 9, 2010, following a four-day trial, Perkins J. made a final order for child support in the amount of $472 per month starting as of December 10, 2004, with credit for all sums actually paid. There were, at the time, substantial arrears owing by the applicant of approximately $12,000. The last voluntary payment was made January 2009.

[ 3 ] Since then, only two payments have been made, on June 2009 and February 2011, as a result of federal garnishment on tax rebates. There have been no voluntary payments since the final order of Perkins J.

[ 4 ] As of June 6, 2012, arrears of periodic payments together with unpaid court costs totalled $38,055.53.

[ 5 ] The applicant’s affidavit of June 4, 2012 says that he is “unable to pay family support at the moment.” He goes on to say that his total monthly income of $1079.40 plus $845 in child tax credit barely covers his current expenses. In a supplementary affidavit sworn June 18, 2012, the applicant deposed that his intention is not to withhold child support, that he made support payments in the past when he was financially able to do so (that is, before he lost his job in 2009) but that, in the past three years, he has had difficulty finding “permanent and meaningful employment.” He said:

I am urging the court to let me keep my drivers license because it is necessary for us as a family, but most importantly to be ready for any medical emergencies because my son has a shunt in his head and may require hospitalization abruptly. The mechanical nature of shunts means that they can malfunction abruptly and or cause severe infections which require immediate medical attention.

[ 6 ] The applicant also says that a driver’s license will facilitate finding employment.

[ 7 ] There are a number of problems with the applicant's request for an order requiring the Director, Family Responsibility Office to refrain from directing the suspension of the applicant’s driver’s license.

[ 8 ] First and foremost, the issues of the applicant’s lack of employment, his available income and his ability to pay support were all before Perkins J. during a comprehensive four-day trial held over the period from March 1 to 4, 2010. At para. 23 of his reasons, Perkins J held:

I find that the father is not at all reliable about the actual amount of his income. One needs only to look at the wide variances in the table above, as well as the fact that much of his income tax documents were constructed long after the years in question and no backup documents were produced to speak of. His oral testimony about the various cash deposits to the bank account and cash payments of credit card balances over the last three years was largely guesswork, if not fabrication. While I do accept that he and his wife get $2000 to $3000 a year in gifts from family, which do not count as income, and the universal child tax benefit is not income, I do not have any good information about the precise amount of either. It appears the child tax benefit may be about $525 a month, but this number comes from a line on a bank statement – not from any help the father gave me by oral or documentary evidence.

[ 9 ] In para. 24, Perkins J. went on to find:

At the trial it was clear that he [the applicant] is more than content to let things go on as they have for a year or more, with no discernible or traceable income other than government handouts and family subsidies. This is not acceptable and I do not believe it is real.

[ 10 ] With respect to the applicant’s hardship argument, Perkins J. held:

The mother earns about $43,000 from a steady job with the bank. Father's income as I have found is less than the mother’s but I do not know the amount of nontaxable federal child support benefits his family receives. That is the father's fault. I repeat, he has failed to produce anything much in the way of original documents to show his household income. The onus is on the father to show undue hardship, which requires evidence that he has suffered hardship that rises to the level of “undue” and that his standard of living is lower than the mother’s. He has not adduced evidence of hardship in his home or of a lowered standard of living there. This argument fails.

[ 11 ] No appeal was taken from this order and there has never been any motion to vary. Indeed, it is clear from the applicant’s current position on this motion that any such motion would fail because there has been no change in circumstances sufficient to warrant any variation. The very arguments made on the current motion were made to, and rejected by, Perkins J. on March 9, 2010.

[ 12 ] The applicant’s affidavits are, in my view, disingenuous. His original statement that he is “unable to pay family support at the moment” is a gross understatement, given that he has not paid any voluntary support since January 2009 and has arrears in excess of $38,000. Further, the applicant did not, in his material, disclose the prior orders of the court requiring the payment of support and the reasons therefore. It was Ms. Edwards, on behalf of the F.R.O., who brought them to my attention.

[ 13 ] The applicant’s principal argument, that he requires a driver’s license to take his child to hospital in the event of an abrupt seizure, is not persuasive. A child with an abrupt seizure requires immediate emergency para-medical attention and an ambulance, not a ride to the hospital with his father. Even if no ambulance were available, there are taxis.

[ 14 ] The applicant’s secondary argument, that he requires a driver’s license to get a job, is even less persuasive. Three years have gone by and he still has no job. Further, there was no evidence that he could not get a job and use TTC, just like hundreds of thousands of other Torontonians. Justice Perkins’s observation that the applicant is “more than content to let things go on as they have for a year or more, with no discernible or traceable income other than government handouts and family subsidies,” apparently remains true today.

[ 15 ] The motion is dismissed with costs of $500, fixed and payable forthwith.

[ 16 ] If the applicant wants to keep his driver’s license, he can keep current with his support obligations and work out a repayment schedule with the F.R.O. for the arrears.

PENNY J.

Date: June 21, 2012