SUPERIOR COURT OF JUSTICE – ONTARIO
COURT FILE NO.: FS-15-0050-00
DATE: 2015 10 26
RE: Amberin Siddiqui v. Farid Saulat Siddiqui
BEFORE: Lemon J.
COUNSEL:
S. Sajjad-Hazai, for the Applicant
A. Nagpal, for the Respondent
HEARD: October 9, 2015
E N D O R S E M E N T
The Issue
[1] Ms. Siddiqui moves for an order that Mr. Siddiqui pay interim child support for the two children of the marriage in the amount of $743 per month, based on an imputed income of $50,000. She requests that order as of the date of separation, December 12, 2014.
Background
[2] The parties were married May 30, 2004 and separated December 12, 2014. They have two children, ages nine and seven, who reside with Ms. Siddiqui.
[3] The application was commenced March 2, 2015. There was an early case conference in April and a case conference is to be held in December of 2015.
Positions of the Parties
[4] Ms. Siddiqui says that although the parties have been separated since December of 2014, Mr. Siddiqui has only paid $232 per month for the months of May and June of 2015. After the motion was brought, however, Mr. Siddiqui provided further cheques from July 1st to December 1st in the amount of $232 per month.
[5] Ms. Siddiqui acknowledges that Mr. Siddiqui left his employment in November of 2014. However, she says:
- Based on the Respondent’s historical earnings, our previous standard of living and his training as a truck driver and a business manager, I ask that child support be ordered based on an imputed income. The Respondent earned in excess of $50,000 per annum in the past and is capable of continuing to earn that amount. There is no legitimate reason for his prolonged unemployment or underemployment.
[6] Ms. Siddiqui also relies upon an earlier affidavit filed in these proceedings. In that affidavit she said:
- I disagree with the Respondent’s characterization of his financial circumstances as well as his statements regarding his earnings in the past. He earned far more than $30,000 at various points in his career and is currently choosing not to seek gainful employment so as to minimize his support liabilities. I believe some evidence of this can be found in the fact that we currently reside in a home that is worth over $500,000 and were able to qualify for a mortgage based on past earnings that were far greater than what the Respondent alleges.
[7] Also in support of her motion, Ms. Siddiqui has provided an affidavit from her cousin’s spouse. In that affidavit, Sharjeel Khan describes seeing Mr. Siddiqui at a local restaurant. Mr. Khan says that Mr. Siddiqui said that he worked at a restaurant during the evenings and had a job somewhere else where he worked in the mornings.
[8] Ms. Siddiqui also complains that Mr. Siddiqui has failed to provide all of the disclosure required in an earlier consent order.
[9] Mr. Siddiqui says that he is now employed on a temporary contract job in retail security at the rate of $13 per hour, with maximum working hours of 40 hours per week. Since November of 2014, he has been relying on employment insurance benefits of approximately $676 biweekly. He says that he has been trying to find a job but has been otherwise unsuccessful. He denies any other sources of income. He says that he has made his productions.
[10] Mr. Siddiqui denies that he has any self-employment income and says that his corporation has not been operating since 2012. He points out that his income tax returns for 2011, 2012 and 2013, confirm that he has made $4,543, $22,125 and $7,037 respectively.
[11] Mr. Siddiqui does not deny that he is required to pay child support but submits that, based on his present income, he should only pay $232 per month.
Analysis
[12] The Court should be slow to impute income on an interim basis without evidence to support the amount requested. On the affidavits that I have been provided, I cannot make a finding of credibility. Both deny significant items in each other’s affidavit.
[13] There is no doubt that Mr. Siddiqui has not been living up to his obligations. I quite understand Ms. Siddiqui’s suspicion of his evidence. He has been slow in providing productions and slow in providing support. It appears that he pays support only when a motion is coming before the court. There is no explanation why he failed to pay proper child support based on his employment insurance income as of the date of separation. Despite an outstanding undertaking to provide the details of his search for employment, he did not advise Ms. Siddiqui of his new job until this motion was brought.
[14] On the other hand, there is no evidence to support the imputation of a $50,000 income as requested. The materials set out that Mr. Siddiqui has some qualifications; however, it is also clear that he has made nothing in the range as suggested by Ms. Siddiqui. In short, Mr. Siddiqui seems to be under-selling his abilities and Ms. Siddiqui seems to be over-selling.
[15] Mr. Siddiqui submits that support should be based on his employment insurance benefits totalling $16,224 per year. His present employment, if he were to obtain 40 hours per week, would pay him $27,000. While his qualifications are from another country and he has earned very little over the last three years, there is no explanation of why he has not been able to earn greater income. On the materials before me, on an interim basis, it is reasonable to expect that he could earn at least $20,000 per year. The Child Support Guidelines indicate support in the amount of $306 per month for two children on that amount of income; I order accordingly. This order is without prejudice to the trial judge determining child support retroactively on a better evidentiary record.
[16] Without an explanation as to why support was not paid as of separation, this order shall be effective January 1, 2015. Mr. Siddiqui shall have credit for the amounts that he has paid to date.
Costs
[17] If the parties cannot agree on costs, written submissions may be made to me. Ms. Siddiqui shall make her submissions within the next 15 days and Mr. Siddiqui shall respond 15 days thereafter. Each submission shall be no more than three pages not including any bills of cost or offers to settle.
Lemon J.
DATE: October 26, 2015
COURT FILE NO.: FS-15-0050-00
DATE: 2015 10 26
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Amberin Siddiqui v.
Farid Saulat Siddiqui
BEFORE: Lemon, J.
COUNSEL: S. Sajjad-Hazai, for the Applicant
A. Nagpal, in person, for the Respondent
ENDORSEMENT
Lemon J.
DATE: October 26, 2015