Court File and Parties
Court File No.: FS-15-84309-00 Date: 2016-07-25 Superior Court of Justice - Ontario
Re: Muhammad Danish Noor v. Marva Syed Shahid
Before: Lemon J.
Counsel: Mr. Noor, Self-Represented Anser Farooq, for the Respondent
Endorsement
The Issue
1Mr. Noor moves for an order varying an interim order of January 28, 2016. He wishes to change his child and spousal support obligations and obtain an order allowing him to travel with his son outside of Canada for a two-week vacation on an annual basis.
Background
2The parties were married March 4, 2008 and separated July 4, 2015. They have a son who is approximately three and a half years of age.
3On January 28, 2016, the parties appeared before Justice Bloom. At that time, he ordered:
Interim interim without prejudice spousal support commencing February 1, 2016 by the applicant to the respondent in the amount of $749 monthly is to be paid. The Applicant and Respondent are free to seek a review, by motion for a determination of interim spousal support, of this order after February 26, 2016 by which time the disclosure contemplated by Justice Price’s order of January 26, 2016 paragraph 4 is to be complete.
4Attached to Justice Bloom’s endorsement was a consent signed by the parties. One of its terms was:
On an interim basis and on a without prejudice [sic], the Applicant, Muhammed Danish Noor, shall pay child support in the amount of $388.00 per month commencing February 1, 2016 on the basis of his approximate annual income of $43,000 for the year 2015 and as per the Child Support Guidelines.
5Mr. Noor’s total support obligation is therefore $1137.00 per month.
Support
6Mr. Noor says that his income has dropped from $43,000 per year to what now appears to be a little less than $36,000 per year. That is partly because he has given up a part-time job to spend more time with the child. His income is also reduced because Air Canada, his full-time employer, has determined that he was overpaid in 2015 and is now deducting $300 monthly to correct that overpayment.
7He also asks that spousal support be reviewed because Ms. Shahid is residing with her parents and has made no efforts to become self-employed. He submits that she should have an imputed income of minimum wage. He also submits that some of her expenses are inflated.
8In response, Ms. Shahid submits that Justice Bloom allowed a review of spousal support but only in relation to productions that came later. None of Mr. Noor’s arguments relate to those new productions. Further, Ms. Shahid was a stay-at-home mother for seven years and has not been able to obtain employment at the present time. She points out that this issue was before Justice Bloom who did not impute any income to Ms. Shahid. It should not be revisited now.
9Ms. Shahid points out that in Mr. Noor’s documentation, there is information that Mr. Noor may apply to Air Canada with respect to “undue hardship” and make a request to reduce the amount being deducted for the overpayment. There is no evidence from Mr. Noor, however, to suggest that he has made such an application or, if he has, whether it has been successful.
Analysis
10While I have some sympathy for Mr. Noor, I cannot accept that the support should be changed at this interim stage. Instead, the litigation should be moved ahead to be finalized on the best evidence possible.
11The pay stubs attached to Mr. Noor’s materials end in May. While it may be that he is on track to make less than he did last year, interim support should be based on the prior year’s income unless evidence is clear that the current situation is more reliable. On what I have in these materials, I cannot make such a determination.
12It appears that Mr. Noor’s income has been reduced because of Air Canada’s error. However, it does not appear that he has taken steps available to him to reduce that harm.
13The reduction in support would be from $388.00 per month to $311.00 for child support. Interim orders are not meant to be fine-tuned in such fashion every few months. Justice Bloom allowed Mr. Noor some leeway with respect to spousal support but no argument has been based on productions that would suggest that the order was wrong at the time.
14With respect to spousal support, this was a seven-year marriage and the parties have been separated for a year. Ms. Shahid is taking care of their young child and I cannot fault her at this point for failing to be gainfully employed. There is no basis to vary spousal support at this time.
Travel consent
15Given Mr. Noor’s financial circumstances, on an interim basis, he should be spending his time and money with his child as cheaply as possible. There is no need for international travel prior to the outstanding issues being resolved.
Future steps
16It appears that nothing further has been taking place in this matter since the January order. Accordingly, I took the liberty of adjourning the file to a settlement conference August 5, 2016 at 10 a.m. The case just prior to this one vacated that date and, to assist the parties, I replaced this file on that list. I believe that is all that I can do to assist Mr. Noor in his present circumstances.
17There is a real issue as to Mr. Noor’s income that I cannot determine here. However, from my review of the parties’ situations, it appears that Bloom J. ordered spousal support in the mid-range. That, to me, perhaps for settlement purposes, seems rather high given that Ms. Shahid has no present housing expense while she lives with her parents. Further, the present child support is the full Guideline amount while it appears that the parties are in a shared custody arrangement. That too would suggest that Mr. Noor’s child support obligation may be high. I leave that to the parties at the settlement conference.
Lemon J.
DATE: July 25, 2016