CITATION: Awan v. Sadiq, 2016 ONSC 7337
COURT FILE NO.: FS-12-5136-00
DATE: 20161125
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
FARIDA AWAN
On her own behalf
Applicant
- and -
SUHAIL SADIQ
No one appearing on behalf of the Respondent
Respondent
HEARD: October 18, 2016
REASONS FOR JUDGMENT
André J.
[1] This trial proceeded on an uncontested basis after Mr. Sadiq failed to appear for a trial scheduled for the October 17, 2016 sittings. Ms. Awan seeks court orders granting her sole custody of the parties daughter, Umber Bint Suhail, child and spousal support and reimbursement for expenses incurred as a result of Mr. Sadiq’s failure to provide her with financial support.
BACKGROUND FACTS
[2] Ms. Awan was born on September 1, 1956. Mr. Sadiq was born on August 26, 1965.
[3] Mr. Sadiq and Ms. Awan were married in Pakistan on November 5, 1992. They have two children, Usama Suhail, born on February 2, 1994 and Umber Suhail, born on August 4, 1998.
[4] The parties migrated to Canada on September 2, 1994. In 2006, Mr. Sadiq advised Ms. Awan that he wanted to marry a second wife, in accordance with Pakistani law. This law required Mr. Sadiq’s first wife to give permission to her husband to take a second wife. Ms. Awan gave written consent to Mr. Sadiq to take a second wife. Mr. Sadiq subsequently married his cousin, Hafiza Afia Ikhlaq but continued to reside with Ms. Awan.
[5] In June 2008, Mr. Sadiq forced Ms. Awan and the couple’s two children to travel to Pakistan, ostensibly to become more knowledgeable about Pakistani culture. Ms. Awan travelled to Pakistan with her children on June 29, 2008. Following Ms. Awan’s departure to Pakistan, Mr. Sadiq filed for an uncontested divorce in Canada. He filed an affidavit in support of his divorce application, indicating that the parties had separated on January 23, 2007 and that he paid Ms. Awan $1,000 monthly child support.
[6] On October 15, 2011, Ms. Awan received information from the Canada Revenue Agency (“CRA”) that she had been divorced since 2008 and that Mr. Sadiq had been filing her income tax returns from 2008 to 2011.
[7] On April 17, 2012, a Pakistani court awarded Ms. Awan custody of the parties’ daughter, Umber Suhail. Ms. Awan returned to Canada in 2012. She has received social assistance since her return and receives no financial assistance from Mr. Sadiq.
COURT ORDERS
[8] On June 13, 2013, the parties signed Minutes of Settlement on consent which provided Ms. Awan interim sole custody of Umber Bint Suhail. It also provided that Mr. Sadiq, on a without prejudice basis, pay Ms. Awan interim child support in the amount of $100 commencing June 1, 2013.
[9] On December 23, 2014, I imputed Mr. Sadiq’s income to $20,000, effective January 1, 2015. I ordered him to pay monthly child support in the amount of $160 for Umber Suhail. I also ordered him to provide disclosure of all employment searches from the date of separation to December 2014, a letter from his physician detailing any medical problems that he claimed prevented him from working and an up-to-date financial statement.
ANALYSIS
[10] This trial raises the following issues:
(1) Should Mr. Sadiq be ordered to pay Ms. Awan child support for both children?
(2) Is Ms. Awan entitled to receive spousal support from Mr. Sadiq? If so for how long?
[11] Before addressing the issue of child support, I note that Umber Suhail, the parties’ daughter, is an adult. Therefore, the issue of custody does not apply in her case.
ISSUE NO. 1: Should Mr. Sadiq be ordered to pay Ms. Awan child support for both children?
[12] Following the Minutes of Settlement signed by Mr. Sadiq in July 2013, Mr. Sadiq unilaterally stopped paying the modest quantum amount in November 2013. He claimed that he could no longer work due to a multitude of medical ailments. In my December 23, 2014 endorsement, I noted that Mr. Sadiq’s medical reports indicated that he suffered from “minimal scoliosis” and “minor marginal osteophytes”. I concluded that Mr. Sadiq “is exaggerating any medical problems he has as an excuse to support his decision not to work.” I therefore imputed an annual income of $20,000 to Mr. Sadiq.
[13] Mr. Sadiq never complied with court orders requiring him to provide financial disclosure to Ms. Awan. He owned a computer business called PC SHAK in Nobleton, Ontario. Ms. Awan provided documents in her Trial Record which indicate that Mr. Sadiq is the Chief Executive Officer of a company called Kangen Water. Given Mr. Sadiq’s attempts to avoid his child support obligations and to provide full financial disclosure, it is reasonable in these circumstances to impute an income to him.
[14] Ms. Awan suggests that I should impute an income of $50,000 to Mr. Sadiq. I note however, that Mr. Sadiq now has a second family, which he is obligated to support. In these circumstances, I am prepared to impute an annual income to Mr. Sadiq in the amount of $40,000 for support purposes.
[15] Should Mr. Sadiq be ordered to pay child support for his 22 year old son, Usama Suhail? In my view, he should. Usama is now a fulltime student at Sheridan College and presently resides with his mother. Following completion of high school, he took time off from school for employment purposes to provide financial assistance to his mother after Mr. Sadiq stopped paying the modest amount of child support that he had been ordered to pay. Mr. Sadiq should not benefit from his dereliction of his duty to pay child support by now being relieved of that responsibility towards his son, Usama Suhail.
ISSUE NO. 2: Is Ms. Awan entitled to spousal support?
[16] Ms. Awan and Mr. Sadiq were married for sixteen years. Ms. Awan was the caregiver to the children. She worked until 2003. She remained in Pakistan from 2008 to 2011. During this period Mr. Sadiq sent her $1,000 per month. He drastically reduced this amount following his second marriage. Ms. Awan has been receiving social assistance since her return from Pakistan. She had major surgery in May 2016, from which she is still recovering. In my view, Ms. Awan is entitled to spousal support on a compensatory or non-compensatory basis.
[17] The “Child and Spousal Support Calculations Guidelines” provide the following calculations for persons with similar ages, number of children and income as Ms. Awan and Mr. Sadiq. The “low end” quantum of spousal support for an unspecified duration is $326 and $579 child support for two children. The “midpoint” range is $448 for spousal support for an unspecified duration and $579 monthly support for two children. The “high end” range is $568 in spousal support and $579 monthly child support.
[18] In my view, child and spousal support in this case should be fixed close to the high end of the range for the following reasons:
(1) Mr. Sadiq’s actions in keeping his first family in Pakistan for his own selfish reasons;
(2) Mr. Sadiq’s egregious decision to divorce Ms. Awan without her knowledge;
(3) Mr. Sadiq’s capricious attempts to avoid paying child and spousal support; and
(4) The impact of Mr. Sadiq’s actions in forcing his children to temporarily suspend their education in order to assist Ms. Awan.
[19] Accordingly, monthly child support will be fixed at $579 while monthly spousal support will be fixed at $500.
OTHER EXPENSES
[20] Ms. Awan claims that Mr. Sadiq used her van from 2008 to 2012 during her absence. He incurred a bill of $667.50 from the ETR 407. She was required to borrow that money from her son to pay the outstanding debt.
[21] Second, Ms. Awan claims that Mr. Sadiq incurred debts in the amount of $7,996.85 after he sent his family to Pakistan.
[22] Ms. Awan also advised the Court that, as of July, 2016, Mr. Sadiq has child support arrears of $2,880.
ORDERS
[23] Based on the above I make the following orders:
(1) Mr. Sadiq shall pay monthly child support of $569 for his two children, Usama Suhail, born on February 2, 1994 and Umber Suhail, born on August 4, 1998, effective October 1, 2016.
(2) Mr. Sadiq shall pay spousal support to Ms. Awan in the amount of $500 per month, effective October 1, 2016 for an indefinite period.
(3) Mr. Sadiq shall pay Ms. Awan the sum of $667.50 to compensate her for the 407 ETR invoice she was required to pay, on account of his use of her van while she was in Pakistan.
(4) Mr. Sadiq shall pay child support arrears to Ms. Awan in the amount of $2,880 within ninety (90) days from today’s date.
(5) Mr. Sadiq shall pay costs in the amount of $750 to Ms. Awan for her court appearance in this trial.
(6) Mr. Sadiq shall pay all outstanding costs within ninety (90) days of today’s date.
(7) S.D.O. to issue.
___________________________
André J.
Released: November 25, 2016
CITATION: Awan v. Sadiq, 2016 ONSC 7337
COURT FILE NO.: FS-12-5136-00
DATE: 20161125
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
FARIDA AWAN
Applicant
- and –
SUHAIL SADIQ
Respondent
REASONS FOR JUDGMENT
André J.
Released: November 25, 2016