CITATION: Naveed v. Nasir, 2016 ONSC 6518
COURT FILE NO.: FS-16-21124
DATE: 20161020
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Saima Naveed, Applicant
AND:
Naveed Nasir, Respondent
BEFORE: Kiteley J.
COUNSEL: self-represented Applicant
Kristin Hillenbrand, Friend of the Court for interjurisdictional matters and interjurisdictional process from the Ministry of Justice and Solicitor General, Alberta
Ryan Zigler, for the Respondent
HEARD: October 18, 2016
ENDORSEMENT
[1] In Edmonton, the Applicant brought a variation application pursuant to s. 17 and s. 17.1 of the Divorce Act. She resides in Edmonton and the Respondent resides in Toronto. This hearing was arranged through collaboration between the Court of Queen’s Bench in Edmonton and the Superior Court of Justice in Toronto.
[2] The Applicant and Respondent have two children: Ishmal Naveed born January 10, 1996 and Mohammad Faizan Nasir, born November 24, 1998. Ishmal is now 20 years old and started university in September 2015. Faizan is almost 18 years old and he started university in September 2016. This application is primarily about their post-secondary expenses.
[3] On October 24, 2012, Justice Snowie made a final order pursuant to the Divorce Act that incorporated Minutes of Settlement which order included these provisions relevant to this hearing:
- The Respondent shall pay Guideline support for the children in the amount of $1066 per month, commencing September 1, 2012, based on his gross annual income of $72,000. The Respondent has provided the Applicant with child support cheques for the months of September, October and November, 2012.
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Both the Applicant and the Respondent shall contribute toward the children’s post-secondary education expenses and other special expenses in proportion to their respective gross annual incomes in accordance with the Child Support Guidelines.
The Respondent shall pay support for the children so long as they continue to be children of the marriage within the meaning of the Divorce Act, but provided further that his child support obligation shall terminate upon the child attaining the age of 22 years.
The Applicant shall provide the Respondent with the particulars of the institution at which the children’s registered educational savings plans are held, any identifying number and a copy of the most recent statement.
[4] In the Alberta Court of Queen’s Bench, the Honourable Madam Justice D.L. Shelley made an order dated April 18, 2016 permitting the Respondent and his counsel to appear by telephone. On April 25, 2016, the Honourable Mr. Justice S.D. Hillier conducted the hearing with Saima Naveed in person, Naveed Nasir and his lawyer by telephone. The court also heard representations from Ms. K. Hillenbrand, Friend of the Court for inter-jurisdictional matters and inter-jurisdictional process from the Ministry of Justice and Solicitor General. The preamble of the order dated April 25, 2016 indicated that the Respondent was not attorning to the jurisdiction of that court. Justice Hillier made an order referring the matter to a Child Support Resolution meeting on June 23, 2016. In that order, Justice Hillier noted that the variation application particularly concerned paragraph 9 regarding the payment of post-secondary expenses but that the live issues for the Child Support Resolution meeting and further hearings, if required, included the following:
(a) Are the children obligated to contribute to their post-secondary expenses, and if so, how will it be determined as to the amount/percentage of their contribution?
(b) What is the amount of income attributable to the Applicant considering her current circumstances?
(c) What is the ability of the Respondent to pay a proportion of post-secondary expenses of the children?
[5] Justice Hillier made an order that the Respondent provide his response to the application by May 16, 2016 and by May 23, 2016, the Applicant was to provide additional materials to address the issue above with respect to the obligation of the children to contribute. Justice Hillier order that if the Resolution meeting did not lead to a settlement, that the parties attend in person or by telephone on July 13. Justice Hillier noted that on a without prejudice basis, the Respondent had undertaken to pay $600 to the Applicant forthwith for post-secondary expenses of Ishmal.
[6] On July 13, 2016, the Honourable Justice R.S. Little made a detailed order a facsimile of which is attached as Schedule A, which provides that the hearing of the variation application pursuant to s. 17 and s. 17.1 of the Divorce Act would be conducted in Ontario with the Applicant participating by video-conference at the Court of Queen’s Bench in Edmonton. Justice Little made an order for disclosure by the Applicant with respect to both children and about her own circumstances; he directed the parties to complete a financial statement in accordance with the Ontario Family Law Rules.
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[7] This is not a proceeding pursuant to s. 18 and 19 of the Divorce Act. The Applicant and the Case Management Judge, the Honourable Madam Justice A.S. Moen, both sought to accelerate the process to avoid the extensive delays that consistently arise with the process of a provisional order in one province to be confirmed, or not, in another province. I share those same concerns and welcomed Justice Moen’s suggestion that the courts in each province collaborate to have the s. 17 and s. 17.1 hearing in Toronto at an early opportunity.
[8] The materials that had been filed in Edmonton and the court orders were forwarded to the Superior Court at Toronto and, the Assistant Trial Co-ordinator responsible for ISO matters issued a notice of hearing after contacting Mr. Zigler to confirm his availability. The date of the hearing was communicated to the court in Edmonton. A communication issue arose as a result of which the Applicant and Ms. Hillenbrand did not know of the date until late last week but nonetheless made themselves available.
[9] The hearing started on October 18 at 2:30 pm EDST. Mr. Zigler and his client were present in Toronto and the Applicant and Ms. Hillenbrand were in Edmonton and participated by video-conference.
[10] At the outset, Mr. Zigler asked for an adjournment because some of the disclosure directed in the July 13 order had not been provided. At that point I declined the adjournment and deferred his request for disclosure until later in the day.
[11] I heard submissions from Ms. Hillenbrand and from the Applicant. Mr. Zigler also took the position that he was entitled to cross-examine the Applicant on her affidavit. I observed that s. 17.1 of the Divorce Act contemplated a hearing without oral evidence and Mr. Ziegler confirmed that in Toronto, typically motions to vary final orders are done on motion, not on oral evidence. However, I did give Mr. Zigler the opportunity to cross-examine which, as he estimated, took about 30 minutes.
[12] By that time, it was after 5:00 pm EDST and there was no alternative but to adjourn. After hearing from Mr. Zigler and Ms. Hillenbrand I adjourned to November 10 with this detailed endorsement to follow.
[13] The evidence of the Applicant has been completed subject only to the filing of the affidavit set out below. I have heard the submissions of the Applicant and of Ms. Hillenbrand. On the resumption, the cross-examination of the Respondent will take place, if any, followed by the submissions of Mr. Zigler with brief reply submissions by Ms. Hillenbrand or by the Applicant. As is the practice in the Superior Court, I am directing the Applicant to serve and file her proposed order.
[14] During her cross-examination, the Applicant raised the issue that the health benefits which the Respondent was required to provide for the Applicant pursuant to paragraph 13 of the October 24, 2012 order had stopped. This issue is not before me on this Application however I inquired of the Respondent what had happened and he said that as a result of his remarriage in September 2016, the Applicant was no longer entitled to coverage. Mr. Zigler agreed to provide documentation to confirm that at the resumption of the hearing. As that issue is not before me, I have not made an order.
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ORDER TO GO AS FOLLOWS:
[15] The hearing of the application pursuant to s. 17 and s. 17.1 of the Divorce Act is adjourned to November 10, 2016 at 10:15 to 1:00 EDST before me. The Applicant and Ms. Hillenbrand shall participate by video conference and Mr. Zigler and his client will attend at 393 University Ave., Toronto.
[16] By October 25, 2016 the Respondent shall pay to the Applicant $500 with respect to the tuition installment that Ishmal was required to pay on October 1, 2016.
[17] By October 25, 2016, the Applicant shall serve Mr. Zigler with an affidavit attached to which are:
(a) a copy of whatever student loan documents are available to Ishmal and in particular, a copy of whatever she recently re-submitted in support of her request for student loan;
(b) a copy of the year to date payslip for Ishmal;
(c) documents from the university, if available, that confirm the number of years Faizan is expected to attend the engineering program and that estimate the income he will receive from the co-op part of his program;
(d) the documents to which she referred during her evidence on October 18 that relate to the property in Pakistan;
provided that the affidavit identifies the documents but does not add evidence to what she said on October 18.
[18] By November 3, 2016, the Applicant shall file the affidavit referred to in paragraph 17 in Toronto by forwarding by email to the address indicated below.
[19] By November 3, 2016, the Respondent shall serve and file his supplementary affidavit. At the resumption of the hearing, he will not give oral evidence in examination-in-chief. Ms. Hillenbrand or the Applicant will have a right to cross-examine on all of his affidavit evidence for not more than 30 minutes.
[20] By November 3, 2016, the Applicant shall serve and file her proposed draft order.
[21] All parties and counsel may serve documents in connection with this Application by email, the addresses of each having been provided at the conclusion of the hearing. The Applicant may file by using the email address. The Respondent shall file in paper in the usual way.
[22] The ISO contact person at the Superior Court of Justice in Toronto is Amal Shoom and her email address is amal.shoom@ontario.ca.
Kiteley J.
Date: October 20, 2016
SCHEDULE A
COURT FILE NUMBER
COURT
JUDICIAL CENTRE APPLICANT RESPONDENT DOCUMENT
ORDER PREPARED BY
FL03 49425
Court of Queen's Bench Alberta
Edmonton
SAIMA NAVEED
NAVEED NASIR ORDER
Clerk of the Court
Court of Queen’s Bench of
Alberta
Main Floor, Law Courts Building
1A Sir Winston Churchill Square
Edmonton, AB T5J 0R2
DATE ON WHICH ORDER WAS PRONOUNCED: July 13, 2016 at Edmonton,
Alberta
NAME OF JUSTICE WHO MADE THIS ORDER: The Honourable Justice R.S.
Little
LOCATION OF HEARING: Law Courts, Edmonton, Alberta
UPON the SUPPORT VARIATION APPLICATION of Saima Naveed for a variation
to the Order from the Superior Court of Ontario (ONSCJ) dated October 24, 2012 by the Honourable Madam Justice Snowie;
AND UPON NOTING that the Honourable Justice S.D. Hillier in his Order of April25, 2016 directed the parties to attend at the lnterjurisdictional Support Orders List in
Edmonton, Alberta on July 13, 2016, if the Child Support Resolution was notsuccessful, at the July 13, 2016 hearing the Court would make further direction as to the process to have this matter heard most expeditiously;
AND UPON NOTING that Saima Naveed was in attendance in person and Naveed Nasir and his Legal Counsel were in attendance by telephone at the hearing on July 13, 2016;
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AND UPON HEARING Counsel for the Minister of Justice and Solicitor General
as "Friend of the Court";
AND UPON NOTING that that the Respondent resides in Ontario and that he
declines to attorn to the jurisdiction of the Alberta Courts for the hearing of this variation application under s. 17.1 of the Divorce Act;
AND UPON NOTING the Applicant's consent to proceeding with the application in
the ONSCJ pursuant to s. 17.1 of the Divorce Act; ·
AND UPON the Court determining that the issues cannot be adequately determined
by proceeding under ss. 18(2)(b) and19 of the Divorce Act for the following reasons: possible extensive delay in the interjurisdictional process and for reasons of judicial economy and access to justice;
AND PURSUANT to Rule 6.10 of the Alberta Rules of Court, this Court directs that
an electronic hearing be held;
AND UPON the ABQB having confirmed that the ONSCJ has the capacity to hear
this matter by either teleconference or videoconference, with the Applicant attending from
the Alberta Court of Queen's Bench (ABQB) in Edmonton;
AND UPON the ABQB directing that the "Friend of the Court" appear by way of teleconference or videoconference to assist the Court in summarizing the evidence of the Applicant in this matter and to provide any background to the ONSCJ as requested by it;
AND UPON the ABQB sending a copy of the application materials, as well as Mr.
Nasir's response as filed with the ABQB, as soon as practicable, to the ONSCJ for a
hearing pursuant to s. 17 and s. 17.1. of the Divorce Act which shall include the further disclosure as ordered by this Court once it is received by the Court;
AND UPON the Court noting that this Order is Intended to facilitate a more timely,
efficient and cost-effective process for a hearing under s. 17 of the Act, improving access
to justice for the parties, and making more efficient use of scarce judicial resources;
AND UPON the Court noting that the Case Management Justice shall be for the
purpose of this matter, the Honourable Madam Justice A.S. Moen;
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IT IS ORDERED THAT:
Based on the Applicant's consent to proceeding in Ontario and in light of her materials, which raise a prima facie issue for determination pursuant to s. 17 of the Divorce Act, the ONSCJ is the proper forum for the Applicant's application.
The ABQB will make available a room with a teleconference and/or a videoconference link (as directed by the ONSCJ) in the ABQB Courthouse in Edmonton, from which the Applicant can participate in a hearing in the ONSCJ.
The Applicant Saima Naveed is required to provide to the following disclosure, by way of sworn Affidavit, to the Alberta Court of Queen's Bench at which time
her application to be sent to Ontario. Disclosure is to be provided to the Court
within 2 weeks of the filing of this Order:
A. With respect to lshmal (daughter):
I. Copy of her 2015 T-4;
II. Copies of and/or proof of estimated income for 2016 including at least her three most recent paystubs from PT and/or FT summer employment;
Ill. Response as to how many more years of University for her
undergraduate program?;
IV. Copies of receipts/costs for tuition and books for 2016-2017 school year; ·
V. How much RESPS were/are there for:
B. With respect to Mohammed (Faizan) (son):
I. Copy of his his 2015 T-4;
II. Copies of and/or proof of estimated income for 2016 including at least his three most recent paystubs from PT and/or FT summer employment if employed;
Ill. Response as to how many years of University for his
undergraduate degree?
IV. Copies of receipts for tuition and books for 2016-2017 school year;
V. How much. RESPS are there for:
a.
2016-2017
b.
2017-2018
c.
2018-2019
d.
2018-2019
C. What is the Applicant's medical limitations to her working more or at a different job?
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D. An explain of the Applicant's possible inheritance from Pakistan including any barriers to receipt of that inheritance; how many people might be sharing in that inheritance and to explain circumstances regarding the inheritance.
The Applicant Saima Naveed and the Respond(3nt Naveed Nasir are each required to complete Form 14 of the Ontario Family Forms regarding their assets and debts within 2 weeks of the date of the filing of this Order. Both parties are to provide an original and 3 copies to the Friend of the Court which will be provided to the ONSCJ.
On receiving a request for further information or documents from the ONSCJ, the Applicant must provide the further information or documents within the time referred to in the request.
In the event the ONSCJ declines to exercise jurisdiction or any issues related to the process for this hearing, the Applicant has leave to bring this matter back before the Case Management Justice the Honourable Madam Justice A.B MoeN.
______________________________________ Justice of the Queen’s Bench of Alberta