SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-10-70053-01
DATE: 2015-07-28
RE: OMAR KALAIR and SYMA KABIR
BEFORE: LEMON J.
COUNSEL:
Mr. S. Patel, for the Applicant
Ms. S. Kabir, in person
HEARD: July 20, 2015
ENDORSEMENT
The Issue
[1] Mr. Kalair seeks:
An order that paragraphs 16 and 17 of the Final Orders of the Honourable Justice Price, dated April 26, 2013 shall be stayed.
As an alternative to the relief sought in paragraph 1 as it relates to the issue of child support, an order that on an interim ‘without prejudice’ basis, the Applicant, Omar Kalair, shall pay to the Respondent, Syma Kabir, child support in the amount of $297.83 per month for the three (3) children, I.K. (born: […], 2000), H.K. (born: […], 2003), and H.K.1 (born: […], 2009) based on his 2013 income of $17,535.00 per annum in accordance with the Child Support Guidelines, commencing August 1, 2015, and on the 1st of each month thereafter.
An order that once the Applicant has filed his income tax return for 2014, and obtained his Notice of Assessment from Revenue Canada, he shall provide proof of same to the Respondent forthwith, with child support to commensurate the following month, and on the 1st of each month thereafter, at the table amount and in accordance with the Child Support Guidelines.
As an alternative to the relief sought in paragraph 1 as it relates to the issue of spousal support, an order that the obligation of the Applicant to pay spousal support to the Respondent as set out in paragraph 16 of the Final Orders of the Honourable Justice Price, dated April 26, 2013 is hereby terminated effective January 1, 2014.
An order that the Respondent shall provide to the Applicant or the Applicant’s counsel, a copy of her Income Tax Returns and Notices of Assessments for the last three (3) taxation years forthwith, together with a copy of her three most recent pay stubs.
An order that the Respondent shall provide forthwith to the Applicant or the Applicant’s counsel, a letter from her current employer setting out particulars of when she became employed, her work schedule, and manner of remuneration. In the event that the Respondent is self-employed or conducting herself as an independent contractor, then proof of same, shall be provided instead.
An order that the issues of child support arrears and spousal support arrears shall be adjourned to the Long Motion date of November 18, 2015.
An order for the abridgement of time for filing and service of the Applicant’s motion materials so that the Long Motion may proceed on July 20, 2015 on the issue of support.
An order dispensing with the requirement for any self-represented party to approve the draft order as to form and content.
An order that the Respondent, Syma Kabir, pay costs to the Applicant, Omar Kalair, on a substantial indemnity basis, inclusive of H.S.T. and disbursements.
[2] In response, Ms. Kabir seeks:
An order to Strike the Pleadings of the Applicant in accordance with the F.L.A. 1(8). The Applicant has failed to obey the Final Court Order, as he has not provided any payments towards child and spousal support. He has acted in bad faith, as he has been contradictory and untruthful in his various affidavits. He has abused the court process, as he does not respect or follow Court Orders, (refusal to pay $5,000 in Court Costs, in addition to severe support payment arrears.
An Order varying Paragraph 13 of the Final Court Order of the Honorable Justice Price, dated April 26th, 2013, permanently dispensing with the A/F’s consent and/or notice for passport application and other travel documentation for the three children of the marriage. In addition, permanently dispensing with the A/F’s consent and/or notice for international travel of the R/M with the three children of the marriage. Travel arrangements have been made for New York, New York, United States of America, from August 22nd, 2015 until September 6th, 2015.
An order that R/M, Syma Kabir, have sole authority, without the A/F’s consent, to obtain passport and other travel documents for the children, namely: I.K., a boy, born […], 2000; H.K., a girl, born […] , 2003; H.K.1, a girl, born […], 2009.
An Order that the R/M, Syma Kabir, have sole authority, without the A/F’s consent, to travel internationally with the children, namely: I.K., a boy, born […], 2000; H.K., a girl, born […], 2003; H.K.1, a girl, born […], 2009.
An Order to uphold the terms of support, deemed by the Honorable Justice Price, set out in Paragraphs 16 and 17 of the Final Court Order, dated April 26th, 2013, to remain same. The Applicant voluntarily signed an annual deemed income of $45,000.00 per annum as his salary. The Applicant has stated in various affidavits that he was not working at the time of the Final Court Order and has stated that he is not presently employed, therefore there is no material change in circumstance.
An Order to address severe spousal and child support arrears at the Long Motion date of July 20th, 2015, with relief to be sought by the R/M, as the Honorable Court deems just.
An Order to vacate the Long Motion, scheduled November 18th, 2015, as all issues are dealt with.
An Order to amend the Endorsement and Court Order of the Honorable Justice Bloom, dated May 29th, 2015 be amended to reflect that the R/M, Syma Kabir, was present at the Motion before the Superior Court of Justice.
An Order that the Applicant, Omar Kalair, pay costs to the Respondent, Syma Kabir, on a substantial indemnity basis, inclusive of H.S.T. which will bear interest at a rate of 3 percent per annum on any payment or payments in respect of which there is a default from the date of Order.
Background
[3] The parties were married October 3, 1998, and separated June 1, 2010. There are three children of the marriage, now aged 14, 11 and 6.
[4] In April 2013, Price J. ordered Mr. Kalair to pay child support in the amount of $858 per month and spousal support based on an income of $45,000. This was pursuant to an executed separation agreement dated April 18, 2013.
[5] In March of 2015, Mr. Kalair brought a motion to change that final order. He has brought this motion to vary that order on an interim basis pending a final decision. The motion was filed July 10, 2015.
Legal Authorities
[6] In Innocente v. Innocente, 2014 ONSC 7082, Gauthier J. summarized the applicable law as follows:
[45] In those cases where a temporary or interim variation of a final order has been granted, the courts have found what are in my view, exceptional circumstances:
(a) To prevent undue hardship;
(b) Where the failure to make the interim order would be incongruous or absurd. and
(c) Where there is a pressing and immediate urgency.
[46] The most recent decision to which I was referred on this issue is that of V. Mitrow J. in Clark v. Vanderhoeven.
[47] Like Del Frate J., Mitrow J. prefers the principle that the court does have jurisdiction to make interim variation of a final order. With respect to the test to be applied, he referred to Hayes v. Hayes, In that case, Spies J. had this to say, at paragraph 38:
…An interim variation of the underlying support order is the most drastic intervention a court could make pending a final hearing of a motion to change. The cases are not clear on what is required to show that continuation of the order would be “incongruous and absurd.” The plain meaning of these terms would suggest the order is inappropriate, unreasonable or ridiculous.
[48] I conclude, as did Del Frate J. and Mitrow J. among others, that there is jurisdiction to make an interim variation of a final order, where the circumstances warrant it.[ References removed]
Analysis
Mr. Kalair
[7] I agree with Justice Gauthier’s analysis of the law. In my view, the circumstances here do not warrant Mr. Kalair’s request.
[8] Initially, Mr. Kalair was unrepresented. He filed an affidavit on December 29, 2014. There, he requested that income be deemed to him for 2013 in the amount of $17,535, $2,031.48 for 2014 and $8,125.92 in 2015. He has not, however, filed his 2014 income tax return. There was no explanation in his materials or from his counsel as to why he had failed to do so. I cannot vary support halfway through 2015 when I do not even have confirmation of Mr. Kalair’s 2014 income.
[9] Mr. Kalair then obtained counsel. The affidavit in support of this motion is from counsel’s law clerk based on information that she has received from counsel who received it from Mr. Kalair. There is no affidavit from Mr. Kalair. An affidavit based on double hearsay with a variety of letters attached is not admissible evidence to support a contested motion.
[10] Although Mr. Kalair sought productions from Ms. Kabir, it became evident in argument that those productions were already in the court file. That only further shakes the evidence in support of the motion.
[11] Without a proper evidentiary background, no order can be made.
[12] Mr. Kalair agrees that the information he requested from Ms. Kabir has been provided.
[13] Mr. Kalair’s requests are dismissed.
Ms. Kabir
[14] With respect to Ms. Kabir’s request, again, the material in support is limited.
[15] I am not prepared to strike Mr. Kalair’s pleadings. In his materials, he sets out that his driver’s license has been suspended by the Family Responsibility Office. They are apparently taking other enforcement steps. I should not interfere with those processes prior to Mr. Kalair’s motion to change being heard.
[16] With respect to the children’s passport and travel, the order of Price J. requires that both parties “will give any consent required” for a passport for the children. Mr. Kabir has denied that consent, but has not provided any reasons for that denial. It would be absurd to wait until after the summer vacation period to deal with that issue. An interim order shall go dispensing with Mr. Kalair consent for the children’s passports.
[17] The present order allows for the parties to travel with the children to the USA. Ms. Kabir does not need the consent of Mr. Kalair to do so. No change to the order is required to allow such a trip. However, other international travel requires the consent of Mr. Kalair, with such consent not to be unreasonably withheld. There is no evidence that such a trip is in the offing and, accordingly, I decline to make that order.
Other Requests
[18] If necessary, the request to amend the order of Bloom J. to show that Ms. Kabir was in attendance is granted.
[19] As these issues have now been resolved, the long motion date of November 18, 2015, is vacated.
[20] A settlement conference has been set for November 24, 2015, at 10:00 a.m.
[21] Ms. Kabir consents to an order waiving her approval of the draft order.
[22] If the parties cannot agree on costs, written submissions may be made to me. Ms. Kabir shall make her submissions by serving a copy on Mr. Kalair’s lawyer and filing them with the court within 15 days of this order. Mr. Kalair’s counsel shall respond within 15 days thereafter. Both submissions shall be no more than three pages in length, not including any offers to settle or bills of costs.
Lemon J.
DATE: July 28, 2015
COURT FILE NO.: FS-10-70053-01
DATE: 2015-07-28
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: OMAR KALAIR and
SYMA KABIR
BEFORE: LEMON J.
COUNSEL: Mr. S. Patel, for the Applicant
Ms. S. Kabir, in person
ENDORSEMENT
LEMON J.
DATE: July 28, 2015