Court File and Parties

Court File No.: FS-15-20099 Date: 2016-08-30 Superior Court of Justice - Ontario

Re: Abdulmalik Yahya, Applicant And: Mariyam Omar, Respondent

Before: Kiteley J.

Counsel: Daniel H. Dagago, for the Applicant Peter S. Carlisi, for the Respondent K. Janczaruk, for the children Manal and Samah

Heard: August 30, 2016

Endorsement

[1]

Background

The Applicant and Respondent began living together in November 1998. They have children born July 1999, January 2001 and March 2007. They separated in January 2014 although they have different dates within that month but the difference is not material.

2The Applicant issued the application in March 2015. At a case conference on August 14, 2015, Corbett J. requested the involvement of the OCL.

3On December 1, 2015, Harvison Young J. heard a motion brought by the Respondent for interim financial relief. In her endorsement, she held that the Applicant’s income was as reflected in his financial statement sworn March 30, 2015, namely $56,292.60 even though that was higher than his line 150 income in his Notice of Assessment for 2014. She made an interim order without prejudice to the rights of the parties at trial or earlier if the disclosure produced justifies it when completed. She made an order that the Applicant pay $1158 per month starting September 1, 2015.

4The condominium was sold and the transaction closed February 29, 2016. On February 4, 2016, Justice Chiappetta dealt with the motion brought by the Respondent for an order that the net proceeds of sale of the condominium be released to her. By that point, the Applicant had not complied with the December 1, 2015 order and had stopped paying the common expenses and mortgage on the matrimonial home. Chiappetta J. made an order that on or before February 15, 2016, the Applicant would pay the Respondent $10,000 from which she allocated $3000 for moving expenses for herself and the children, $3030 for first and last month rent on a 2 bedroom apartment and $300 per month to store the remaining contents of the matrimonial home. She directed that that amount be credited to the Applicant against any award for retroactive spousal support. She directed that the net proceeds of sale remain in trust and the arrears of child support pursuant to the order of December 1, 2015 would be paid to the Respondent.

5On April 15, 2016, Justice J. Wilson made an order on consent with respect to temporary access and she made an order that the child support payments for April and May and June be paid out of the husband’s share of the net proceeds of sale.

6On June 6, 2016, Justice Stevenson adjourned the continuation of a case conference because counsel for the Applicant was not available. She made a consent order that the child support payments for June and July be paid out of the proceeds of sale.

7On July 25, 2016, Justice Hood made an order that the child support payment for August 2016 be paid out of the proceeds of sale. He noted that these motions were scheduled for this date.

[8]

The Motions

The Respondent brought this motion for an order for temporary custody of the children; an order that the Applicant pay temporary spousal support in the amount of $1500 per month retroactive to July 30, 2015; that he pay temporary child support in the amount of $1800 per month retroactive to July 30, 2015, and an order that all of the proceeds of sale from the condominium be released to her lawyers. In her affidavit she asks that all of the remaining proceeds be available to her.

9The Applicant brought his motion for an order that child support be amended to indicate his actual income; that the Respondent’s claim for spousal support be dismissed; that the Applicant’s claim for all of the proceeds of sale be dismissed; that the net proceeds be divided equally except that he would be credited with the 50% of the mortgage and condominium fees that he paid from the date of separation to the date of closing that should be attributed to her.

[10]

Income of the Applicant

The key issue is the income of the Applicant. At the time of separation, he operated a taxi cab business. His income tax returns showed the following gross and net income before expenses: 2012: $41919 gross and $14330 net; 2013: $40,710 gross and $26210 net; 2014: $42,042 gross and $10,521 net. That information was before Justice Harvison Young and instead of relying on them, she relied instead, for the purposes of the temporary order, on the income he showed in his from 13.1 financial statement sworn March 30, 2015, namely $51,556. She pointed out that that might change depending on disclosure.

11Since then, the Applicant says that he was not well and unable to work for a few months in the winter and that he has surrendered his taxi licence and is driving for UBER. He has produced statements from UBER which both counsel have referred to. On the basis of his calculation of income over what he says is 4 weeks annualized, Mr. Dagago calculates the Applicant’s income as $29,860 and he asks that child support be reduced accordingly.

12On the basis of his calculation of income over 3 weeks annualized, Mr. Carlisi takes the position that his income should be found to be no less than $42,864. However, he takes the same position he did before Harvison Young J., namely that his income should be found to be $90,000 and in any event, no less than the amount relied on for the December 1, 2015 order.

13As Harvison Young J. pointed out, there is no basis for finding his income is $90,000. It is apparent from their lifestyle and the equity they accumulated in the condominium that the family of five was living well beyond the net income indicated in his 2012, 2013 and 2014 income tax returns. But that doesn’t mean it should be found to be $90,000.

14I agree with Mr. Carlisi that income for purposes of this motion should not be less than what was established on December 1, 2015. In his financial statement sworn March 30, 2015, the Applicant reflected annual expenses of $56,292 and he indicated he was “living with various family members and friends”. The Applicant has not provided a current financial statement for these motions and as a result, he has given no information about income and expenses and whether he is sharing accommodation with persons who are contributing. The temporary order dated December 1, 2015 is expected to apply until trial and I am not satisfied that the disclosure that he has provided warrants the change in the temporary order that he seeks.

15I am not persuaded to increase or decrease the amount of child support. The temporary order dated December 1, 2015 will continue.

[16]

Spousal Support

The Respondent claims spousal support and has done so since the inception of the proceedings. Counsel for the Applicant takes the position that she is not entitled to spousal support because she has not contributed financially to the family, he has encouraged her to get a job and earn income, and he has been the sole financial provider. That is a surprising and out of date submission. The Applicant and Respondent were together over 15 years and have 3 children together. She has been a homemaker and mother and performed a valuable role in the household. The Applicant was the sole financial provider and she was dependent on him. At this motion for temporary spousal support, I have no difficulty in finding that she is entitled to spousal support.

17The question is how to implement that entitlement on a temporary basis. Based on the SSAG calculations provided by Mr. Carlisi, the range of spousal support would be $46 to $183 to $330. That would make only a modest difference. In addition, the order of Chiappetta J. directed that the payment of $10,000 would be credited against any retroactive order for spousal support. I decline to make a temporary order for spousal support at this time.

18The Applicant takes the position that the Respondent should be seeking employment. Counsel for the Respondent takes the position that the Applicant has a health condition that prevents her from working. Mr. Carlisi showed me a single sentence letter from a doctor that I returned to him because it was not in the record before me. In order to settle the outstanding issues including spousal support, the Respondent must provide disclosure of any medical documentation on which she relies. If it consists of a single sentence from a family doctor, it will not suffice in which case she should consider investigating employment.

[19]

Proceeds of Sale

Mr. Carlisi advised that $62,000 remains in the trust account of the real estate lawyer. The Respondent asks that the net proceeds be paid to her because she has what would be considered “special and extraordinary” school expenses for the children; because the Applicant has not made a single payment of child support voluntarily since the separation; and because it is inefficient and expensive to keep coming to court. I agree that a small capital payment should be paid to her on account of the school expenses and that on an ongoing basis until settlement or trial, the order for temporary child support should be paid from the net proceeds of sale, but I am not prepared to release all of the funds to her.

20The next step must be an informed and productive settlement conference.

Order

ORDER TO GO AS FOLLOWS:

[21]

Order

On consent, the Respondent shall have temporary custody of the children Manal born March 22, 2007 and Samah born January 30, 2001.

22The Applicant’s motion to decrease the temporary order for child support dated December 1, 2015 is dismissed.

23The Respondent’s motion to increase the temporary order for child support dated December 1, 2015 is dismissed.

24The Respondent’s motion for temporary spousal support is dismissed.

25Out of the Applicant’s share of the net proceeds of sale, the real estate lawyer shall pay to the Respondent the sum of $2,000 on account of s. 7 special and extraordinary expenses.

26Out of the Applicant’s share of the net proceeds of sale, commencing September 1, 2016 and on the first of each month until agreement between the parties or court order, the real estate lawyer shall pay to the Respondent the sum of $1158 per month as temporary child support pursuant to the order of December 1, 2015 based on income of $51,556.

27Support Deduction Order to issue.

28The parties shall attend a settlement conference on November 7, 2016 2:30 to 4:30 before me if available. By October 31, 2016 counsel shall serve and file settlement conference briefs including current form 13.1, net family property statements, comparison net family property statements, an accounting of the net proceeds of sale of the condominium and offers to settle.

29On consent, based on divided success, each party shall pay his and her own costs.

Kiteley J.