Court File and Parties

COURT FILE NO.: FS-17-00021574-0001 DATE: 20181030 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MOHAMMAD GHOLAM FAIZI Applicant – and – SOHILA GHAFORI FAIZI Respondent

Counsel: Bedawi Tago, for the Applicant Not Appearing

HEARD: October 23, 2018

C. Gilmore, J.

JUDGMENT ON PROVISIONAL VARIATION HEARING

Overview

[1] This matter was brought by way of Application to vary a support order made in Saskatchewan. A Provisional Hearing was held in relation to the applicant’s support variation application pursuant to s.27 of the Interjurisdictional Support Orders Act, 2002 (“ISOA”). Pursuant to s.30 of ISOA, notice to the Respondent is not required but all evidence, including a copy of the transcript of the hearing must be sent to the reciprocating jurisdiction.

[2] The applicant seeks to vary the order of Justice Y.G.K. Wilkinson of the Court of Queen’s Bench (Family Law Division) of Saskatchewan, in Saskatoon (“the originating order”). The originating order is dated October 15, 2012.

[3] The originating order requires the applicant to pay child support for the three children of his marriage to the respondent in the amount of $1,164 per month commencing October 1, 2012 and based on an imputed income of $65,000 per year.

[4] The children of the marriage are:

Nabil Faizi born February 5, 1996 (aged 22) John Faizi born January 19, 1998 (aged 20) Marisa Faizi born June 11, 2006 (aged 12)

[5] The originating order did not come to the attention of the applicant until 2013. His evidence was that he was never served with the respondent’s documents in Saskatchewan and was given no notice of the hearing which apparently proceeded on an ex-parte basis. Further, he has not earned anywhere near $65,000 per year since 2012.

[6] The originating order was registered with Ontario Court of Justice on November 19, 2014 as an ISOA order.

[7] The applicant has never been able to pay the full amount of support ordered in the originating order. As such, his arrears with the Ontario Family Responsibility Office (“FRO”) are currently $78,115.96.

[8] The applicant brought a motion for a refraining order on June 8, 2017. That order expired on December 8, 2017 and no motion was brought by the applicant to extend the order within the statutorily prescribed. Counsel for FRO appeared on this matter but did not participate in the hearing. Counsel for FRO informed the court that although the refraining order had expired, FRO had not taken any steps to enforce it given that the Provisional Hearing was scheduled.

[9] The applicant initially sent his variation application to FRO for service on the Government of Saskatchewan. He was informed by way of letter from the Government of Saskatchewan dated January 24, 2018 that because the originating order was made under the Divorce Act, he was required to apply to an Ontario court for a Provisional Variation Order. The applicant issued his application in this court on August 27, 2018.

[10] The applicant seeks to reduce or eliminate his ongoing support payments on the basis of his income and the fact that his older children have not been dependents for several years. He also seeks to vacate all of the arrears. According to the applicant, the originating order was made without notice to him and the income imputed to him in that order was inaccurate.

Background Facts

[11] The applicant is 59 years old. The respondent is 42. The applicant came to Canada from Afghanistan in 1987. The parties married in Afghanistan in 1993 and the applicant sponsored the respondent to come to Canada. The respondent has lived in Canada since 1995.

[12] The parties separated in 2006. The applicant left the matrimonial home with the parties’ two sons and went to Saskatoon, Saskatchewan. According to his evidence, the respondent remained in the matrimonial home in Toronto and the applicant paid the mortgage and support payments for the respondent and his daughter.

[13] In 2009 the parties decided to reconcile. The respondent sold the Toronto home and moved to Saskatoon with the parties’ daughter. The parties lived together again as a family for about a year. However, according to the applicant, the respondent stole $10,000 from his restaurant business and left for Afghanistan with Marisa without telling the applicant. He went to Afghanistan a few days later and the parties were divorced there and subsequently in Saskatchewan.

[14] In 2010 the applicant sold the matrimonial home in Saskatoon, his taxi permit and his restaurant. He gave the proceeds of approximately $100,000 to the respondent.

[15] The applicant’s evidence was that after the final separation in 2010 he started to pay child support for Marisa of $220 per month. The two older children lived with applicant between 2011 and 2013. In 2013 the applicant returned to Toronto and his sons remained with the respondent. However, by that time the respondent had remarried. She no longer wanted her sons living with her. By that time Nabil was 17 and John was 15. The applicant told the court that the respondent told both boys to leave her home when John was 16. They have been on their own ever since, other than John who lived with the applicant in 2017.

[16] The applicant has not seen his daughter since 2011. He has been denied contact with her and does not know where she lives.

[17] The applicant told the court that he has continued to pay $220 per month for child support since 2011. In June 2017 he was ordered to increase the support to $250 per month as a term of the extension of the refraining order. He has paid no support since April 2018 when he began to receive Social Assistance payments. The applicant’s evidence was that he is too ill to work full time. He works in a restaurant two to three days a week and earns about $300 a week.

[18] The applicant has remarried and lives in a bachelor apartment with his wife. She works part-time as well.

[19] The applicant suffers from a heart condition. He included in his material several letters from June and September 2017 from his cardiologist, Dr. James Cherry, to his family doctor, Dr. Jeff Neumann. Those letters outline that the applicant had quadruple bypass surgery in 2001. On testing, Dr. Cherry noted that he had blocked arteries. He is not a candidate for surgery and only suitable for medication. Dr. Cherry recommended trial medical therapy to control his symptoms which included chest pain. By way of a note dated October 4, 2018, Dr. Cherry wrote that the applicant has “severe limiting class 3 angina with diffuse inoperable coronary artery disease.”

[20] With respect to income, the applicant provided his Notices of Assessment for the period of 2011 and 2013 to 2017. His income in those years was as follows:

2011 Employment Income $ 2,139 2013 No Notice of Assessment provided 2014 Employment income $18,637 2015 Employment income $ 5,657 2016 Employment income $ 1,579 2017 Net Business income $ 3,412

[21] The applicant provided correspondence from Toronto Employment and Social Services dated April 4, 2018. The letter confirms that the applicant qualified for Social Assistance and would receive payments of $1,118 per month. He received Social Assistance between March and June 2018. A letter from Toronto Employment and Social Services dated July 12, 2018 indicates that Social Assistance payments terminated on July 31, 2018.

[22] The applicant’s financial statement sworn October 5, 2018 indicates that his monthly income is $1,000 per month. He earns his income working at a restaurant in Etobicoke. His main expenses are rent of $500 per month (his wife pays the other half of the rent), heart medications at $260 per month and grocery and household expenses of $190 per month. The applicant has no assets. His only debt is the arrears owed on the originating order.

Analysis

a) Introduction

[23] Before beginning this analysis, it should be emphasized that the nature of a Provisional Hearing is such that no cross-examination of the applicant took place. The applicant testified that the documents he filed in support of his case were true. In the circumstances of a Provisional Hearing, the court does not have any contradictory evidence. As such, issues such as the possible imputation of income to the applicant, and at what point the older children became independent were not explored beyond the documents and oral evidence given by the applicant.

[24] The applicant was a credible witness. He testified that he did the best he could for his children in the difficult circumstances in which he found himself. He was, like many, confused about the interjurisdictional court process and was frustrated about how long it had taken him to get to the point of having a hearing.

b) Ongoing Support

[25] The applicant has an ongoing support obligation for his youngest child, Marisa, now aged 12. He testified that he cannot work full time due to his heart condition which causes him chest pain. Dr. Cherry’s note and reports corroborate this.

[26] As the applicant gave his evidence during the hearing it was clear that even to the most casual observer he appeared pale, gray and tired. He does not look well. In short, I accept the medical evidence which would support the applicant’s testimony that his medical condition affects his ability to work full time.

[27] On an income of $12,000 per year, the applicant would have no obligation to pay ongoing child support. He is already living at a subsistence level and has no additional funds to pay support. At times, he has been on Social Assistance.

[28] There is also the issue of the dependency of the older children now aged 20 and 22. In June 2017, Kiteley, J. found that for the purposes of the refraining order motion, those children were not dependents. I am of the same view. The older children are not living with either parent and, given their age and circumstances, are no longer dependents for the purpose of ongoing child support.

c) Support Arrears

[29] The FRO statement of arrears does not commence until January 1, 2015 after registration of the originating order on November 19, 2014. There is no information as to what arrears may have accumulated prior to January 1, 2015. Therefore, this judgment will deal only with a determination of what support should have been paid between January 1, 2015 and October 1, 2018.

[30] The applicant’s evidence was that he paid support of $220 per month for his daughter from January 1, 2015 until June 1, 2017. On June 1, 2017 he began to pay $250 per month as a condition of his refraining order. The FRO statement of arrears does not reflect any payments of support from the applicant other than diversions from income tax refunds or other tax credits. The statement of arrears does not reflect payments from the applicant until June 2017 when he began to pay $250 per month. Those monthly payments were made June to December 2017 and in January and March 2018. Thereafter, the applicant’s evidence was that he was either on Social Assistance or earning a nominal income and could no longer afford to pay any support.

[31] The applicant testified that made direct transfers to the respondent of $220 per month from January 1, 2015 to June 1, 2017 when he began to pay FRO $250 per month. The applicant provided some bank statements for 2016 and 2017 but those statements do not reflect any payments of $220 to anyone.

Support Owing for 2015

[32] In 2015 the applicant earned total income of $5,657. His two older children were aged 19 and 17 respectively. The applicant’s evidence is that neither of those children were dependent at that time. There was independent corroboration of this fact, however, that likely is not important because whether the applicant was required to support one children or three, his income was below the Guideline threshold which would require him to pay support.

[33] The applicant’s evidence was that he was paying $220 per month for Marisa. There is no proof that this was the case. If he was doing so, it would have been an overpayment of support based on his stated income.

[34] Arrears for 2015 are therefore $0.

Support Owing for 2016

[35] The same factors would apply here as in 2015 because in 2016 the applicant’s income was even less. His Notice of Assessment indicates that he earned income of $1,675.00 in that year.

[36] Whether all three children were dependent or not would make no difference in terms of support. The applicant had insufficient income to pay any support.

[37] Arrears for 2016 are therefore $0.

Support Owing for 2017

[38] In 2017 applicant earned income of $3,412. This was his net business income after expenses. His total business income was $18,061. His older children were aged 21 and 19.

[39] If the applicant’s gross business income is used and he was obligated to pay support for three children his support obligation would have been $283.00 per month. Support for one child would have been $137 per month.

[40] The applicant paid child support of $250 per month from June to December 2017 or $1500. Assuming he owed Table support of $137 per month for 12 months for Marisa, he would owe $1644 for 2017 of which he paid $1500.

[41] Of course, these calculations are based on a gross income with no deduction for expenses. Once even a small deduction is taken for expenses, the applicant would be in a position of having overpaid support for one child.

[42] As for the two older children, the applicant’s evidence was that they have been independent for many years. I accept that evidence.

[43] There are therefore no arrears of support for 2017.

Support for 2018 – January to October

[44] The applicant has paid total support for Marisa of $500 in 2018. He is unable to work full time, suffers from a heart condition and spends a significant portion of his income on medication for his condition since he has no medical benefits.

[45] For six months in 2018 the applicant was in receipt of Social Assistance. The applicant did not have the ability to pay support in 2018. Even if he did, the $500 payment would satisfy any period of time in which he was not in receipt of Social Assistance.

[46] There are no arrears of support for January to October 2018.

Provisional Orders

[47] The applicant’s arrears of support from January 1, 2015 to October 1, 2019 are vacated in their entirety due to the applicant’s inability to pay support.

[48] The applicant is not obligated to pay support for Nabil Faizi born February 5, 1996 and John Faizi born January 19, 1998 as of January 1, 2015.

[49] The applicant has an ongoing obligation to pay support for Marisa Faizi born June 11, 2006. However, the applicant has no ability to pay ongoing support at this time.

[50] The applicant has no information as to the respondent’s address or personal circumstances. As such, he shall provide a copy of his Notice of Assessment to FRO each year when available.

[51] A certified copy of this judgment shall be provided to FRO along with a transcript of the proceedings.

[52] Three certified copies of this judgment, a transcript of the proceedings and a copy of the application, affidavit, financial statement and supporting documentation shall be sent to:

Government of Saskatchewan Family Justice Services 100-3085 Albert Street Regina, Saskatchewan S4S 0B1

[53] No costs of this proceeding were sought.

C. Gilmore, J

Released: October 30, 2018

COURT FILE NO.: FS-17-00021574-0001 DATE: 20181030 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: MOHAMMAD GHOLAM FAIZI Applicant – and – SOHILA GHAFORI FAIZI Respondent JUDGMENT ON PROVISIONAL VARIATION HEARING Released: October 30, 2018