Court File and Parties

COURT FILE NO.: FS-18-00000826

DATE: 20190529

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Bayan Sarassra Applicant

– and –

Khaled Sarassra Respondent

COUNSEL:

Olivia Oprea for the Applicant

Bedawi Tago for the Respondent

HEARD: May 2, 2019

BEFORE: Shore, J.

Endorsement

[1] This was a motion brought by the applicant for an order for summary judgment dismissing the respondent’s motion to change, an order that he be required to seek leave of the court prior to bringing any future motions to change and/or applications, and an order finding the respondent in contempt of the Order of Justice Moore, dated June 29, 2018. The City of Toronto, who is a party to these proceedings because some of the support payments have been assigned, supported the applicant’s motion.

[2] The motion proceeded before me on May 2, 2019. At the end of the motion I rendered my decision, advising that my reasons would follow. The order provides:

1. Motion for contempt with respect to the removal of religious barriers to remarry requires viva voce evidence. Motion adjourned to August 15, 2019, at 10 AM for half a day before me.
2. Parties shall attend settlement conference/trial management conference on July 3, 2019 at 10 AM for the purpose of exploring settlement, identifying witnesses and evidence, estimating the time for each party, and deciding how the motion for contempt shall proceed.
3. With respect to the applicant’s motion to dismiss the respondent’s motion to change, motion granted with reasons to follow.
4. The respondent shall obtain leave of the court prior to bringing any further court proceedings. Reasons and terms to follow.
5. Costs with respect to the motion for contempt adjourned to the long motion.
6. The respondent shall pay costs to the applicant and the City of Toronto with respect to his motion to change as follows: a. to the applicant, $2,000 inclusive of HST payable forthwith; b. to the City of Toronto, $1,000 inclusive of HST payable forthwith.

Costs are an incident of child support and should be enforced as such.

[3] The following are my reasons:

Background

[4] The parties were married in 1998 and have four children, namely Zain Sarassra, born March 1, 2000; Lein Sarassra, born September 22, 2001; Ayah Sarassra, born April 23, 2004; and Mohammad Sarassra, born November 25, 2010.

[5] The parties separated for the first time in 2007 and in 2009 they reconciled. In February 2016, the respondent was charged with assault and the parties separated on a final basis at that time.

[6] The applicant issued an application but had difficulty serving the respondent. The respondent was finally served, at his place of employment, on March 23, 2018. Given the difficulty in serving the respondent, the applicant obtained an order allowing future service on the respondent via email.

[7] The respondent did not participate in the family law proceedings, despite being personally served with the application and supporting documents. Eventually, the applicant was permitted to proceed by way of an uncontested trial, and a final order was made by Justice Moore on June 29, 2018 (hereinafter “Justice Moore’s Order”).

[8] Justice Moore’s Order provides the following, amongst other things:

1. Custody of the children to the applicant.
2. Access to the respondent at the discretion of the applicant.
3. Child support commencing March 1, 2016, in the amount of $922 per month based on an income imputed to the respondent of $37,440.
4. $300 per month for special and extraordinary expenses commencing September 1, 2018.
5. The respondent was ordered to pay his proportionate share of retroactive special and extraordinary expenses in the amount of $5,760, at a rate of $100 per month commencing July 1, 2018, until paid in full.
6. The order also required the respondent to apply for an Islamic divorce by attending an approved agency for an Islamic divorce and executing all divorce documents required for an Islamic divorce under the Family Law Act, R.S.O. 1990, c. F.3 and the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) within 30 days.
7. In the event the respondent did not comply with the application for an Islamic divorce within 60 days of the making of the order, the applicant was granted leave to bring a motion finding the respondent in contempt, with the remedy being terms of incarceration, to assist in compelling compliance.

[9] The respondent made no voluntary payments of child support under Justice Moore’s Order from the date of the order to the motion before me. In September 2018, the respondent received an enforcement warning letter from the Family Responsibility Office (“FRO”). In September 2018, his arrears were in excess of $34,000. Arrears have continued to accumulate since that time, although no updated statement of arrears was filed by either party. Part of the arrears were owing to the City of Toronto ($10,142) as an assignee of the support order.

[10] In November 2018, the applicant gave the respondent notice that she would be bringing a motion to find him in contempt as he took no steps to comply with Justice Moore’s Order with respect to the Islamic divorce.

[11] In December 2018, the respondent brought a motion to change, seeking to set aside Justice Moore’s Order, and further asking for an order that he pay no child support.

[12] The respondent filed his 2017 income tax return with his motion material, which showed his line 150 income as $28,534. The respondent also filed unsigned income tax returns for the years 2014-2017. He represented that his 2016 income was $11,080 and his 2015 income was only $7,947. This turned out not to be true.

[13] On February 28, 2019, the respondent served and filed an amended motion to change, requesting that Justice Moore’s Order “be set aside”, or in the alternative, the child support order should be reassessed having regard to his notices of assessment. His position was that changes in circumstances had taken place, namely that he was not present when the court made the initial order and that his income never exceeded $29,000. He was still asking that his child support obligation be terminated.

[14] When filed, his notice of reassessment for 2016 showed his line 150 income as $33,347 (not $11,080). His 2017 notice of reassessment showed his line 150 income as $36,886 (not $28,534). His income for both years was significantly higher than what he claimed in November 2018, and fairly close to the income imputed to him in Justice Moore’s order ($37,440). Therefore, when Justice Moore made the order in June 2018, the respondent’s income was definitely greater than $29,000, despite his assertion that he never earned more than same.

[15] Finally, in his affidavit, the respondent sought credit for payments he made on behalf of the applicant and the children, including rent, hydro and cell phone bills. However, it was clarified during the motion that he had not paid any of these expenses at least since Justice Moore’s Order.

Analysis:

[16] Section 17(4) of the Divorce Act provides

Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guideline has occurred since the making of the child support order.

[17] Establishing a material change in circumstance generally requires some new facts or circumstances which, if known at the time of the order, would likely have resulted in different terms in the order. In the case of Trang v. Trang, 2013 ONSC 1980, 29 R.F.L. (7th) 364 at para. 42, Justice Pazaratz noted that when an alleged change with respect to the payor’s income is at issue, the analysis will involve three questions:

1. What was the payor earning then?
2. What is the payor earning now?
3. When did the payor’s income change and why?

[18] In June 2018, Justice Moore imputed an income of $37,440 to the respondent. In the previous calendar year (2017), he earned $36,886. There is no material change in circumstance from his Notice of Reassessment to the income imputed by Justice Moore.

[19] The Respondent advises that he is now unemployed. However, his unemployment commenced in April 2018, at least two months before the trial before Justice Moore. Therefore, his unemployment is not a material change in circumstance. Justice Moore imputed income to the respondent. Justice Moore did not rely on the respondent’s income tax returns as they were not before the court at the trial and yet the imputed income is very close to his actual income. In any event, I am required to, and I do, presume that Justice Moore’s Order is correct, even if it was made as a result of the father’s failure to put evidence before the court (see Trang v. Trang at para. 60).

[20] There is no evidence before the court or in the respondent’s motion to change materials that suggests that there has been any material change in circumstance since Justice Moore’s Order. All of the facts relied on by the respondent were either before Justice Moore or existed when Justice Moore made his final order.

[21] The respondent chose not to participate in the earlier proceedings. He is now asking the court to look behind Justice Moore’s Order. If there is no material change in circumstance, the respondent can still move under rule 25(19) of the Family Law Rules, O. Reg 114/99:

The court may, on motion, change an order that,

a. was obtained by fraud, b. contains a mistake, c. needs to be changed to deal with the matter that was before the court that it did not decide, d. was made without notice, or; e. was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.

[22] I find that none of these conditions apply to this case. The respondent is not claiming fraud. There is no apparent mistake, especially when the order is compared to the notices of reassessment. There is no issue that was before the court that it did not decide. While the respondent was not present when the original order was made, it was not due to inadequate notice. He was served personally with the Application. He was served by email with all subsequent material. While the respondent submits that he does not have frequent use of the email address, It is clear from the emails filed that he did use that email address to communicate with the applicant’s lawyer in February 2018, urging her to communicate with him to try to resolve the outstanding issues. I am satisfied he had proper notice. He offers no reason in any of his materials as to why he was unable to be present. If the respondent feels his income was wrongly determined, he could have sought to correct the order, by appealing same. He did not appeal the order.

[23] I have jurisdiction to grant a summary judgment under rule 16 of the Family Law Rules, which states as follows:

(1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgement for a final order without a trial on all or part of any claim made or any defence presented in the case.

(2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim.

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

[24] I have considered the decision of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. I have also taken into consideration the requirement in summary judgement motions for each party to “put its best foot forward”. Assuming that this is the respondent’s best evidence, the applicant has met the onus of showing that there is no genuine issue for trial and that the action will not succeed if it proceeds to a full hearing. The facts in this case are fairly easy to determine, given that most of the facts are not in dispute or are easily ascertainable from objective documents, such as notices of reassessment, previous court orders and affidavits of service.

[25] For the reasons set out above, I find that there is no genuine issue to be determined at a hearing of this motion to change. There is no material change in circumstances and no reason to change the order under rule 25(19).

[26] Given all of the circumstances of this case, this is a fair and just result, and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole. The respondent still owes arrears of child support. He has not made any voluntary payments. It would be unfair and unjust to allow him to use the court process to amend his ongoing support obligation while ignoring previous orders of this court. The applicant should not be put through the cost of another proceeding in these circumstances, especially when the outcome is foreseeable.

[27] In any event, even if I am wrong and there has been a material change in his income, I would also dismiss the respondent’s motion to change under rule 1(8) of the Family Law Rules which specifically provides that:

If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(a) an order for costs; (b) an order dismissing a claim; (c) an order striking out any…. motion to change; (d) an order that all or part of a document that was required to be provided but was not, may not be used in the case; (e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise; (f) an order postponing the trial or any other step in the case; and (g) on motion, a contempt order.

[28] As set out above, I am not going to address the motion to find the respondent in contempt of the court order to remove religious barriers to remarry as there are separate consequences that arise with a finding of contempt, including imprisonment. That motion is proceeding in August. Further evidence is required specifically on the issue of the removal of religious barriers to remarry. As set out in Justice Moore’s Order, the motion for contempt may result in an order for incarceration.

[29] Section 24(a) of the Federal Child Support Guidelines also provides that where a spouse fails to comply with an order for disclosure, the court may strike out any of the spouse’s pleadings.

[30] Rule 1(8) and section 24(a) have been triggered based on the following:

(1) The respondent failed to provide court-ordered disclosure, including basic information needed to determine his income; and (2) He failed to make any voluntary payments of child support under the current order, in that any payments made were as a result of enforcement proceedings and garnishments by the FRO. He has made no efforts to comply with his child support obligations prior to bringing his motion to change.

[31] The respondent failed to participate in the last court proceeding. He has shown a flagrant disregard for orders of this court and for the well-being of his children by not contributing to their support. The respondent has also misled the court with respect to his income in these proceedings. He is only back at court as a result of the enforcement proceedings by FRO and the applicant’s motion to find him in contempt.

[32] I also find his request to terminate his obligation to pay child support for their four children to be egregious. Both parents have a responsibility to support their children.

[33] I do not find that the remedies other than striking the motion to change set out in rule 1(8) are sufficient. It is doubtful the respondent will pay any costs ordered against him, when he has failed to make any payments under prior court orders. His only claim is to change his child support obligation. There are no other claims to dismiss. Postponing the hearing of his motion does not assist the applicant and children who need finality and enforcement of child support.

[34] I appreciate that striking a party’s pleadings is a remedy of last resort. However, the respondent has been given ample opportunity to participate by this court and now brings a motion to change that is not going to succeed on the facts set out in his material. He has ignored all court orders. It would bring the administration of justice into disrepute if he were now allowed to seek relief from the court while still ignoring prior orders.

[35] Finally, in making this decision, I have considered the primary objective of the Family Law Rules, which is to enable the court to deal with cases justly.

[36] Rule 2(3) states that dealing with a case justly includes,

(a) Ensuring that the procedure is fair to all parties; (b) Saving expense and time; (c) Dealing with the case in ways that are appropriate to its importance and complexity; and (d) Giving appropriate court resources to the case while taking account of the need to give resources to other cases.

[37] Allowing this litigation to proceed would be a waste of court resources. It denies the applicant and the children finality. It would impose additional legal costs on the applicant, for a case that will not be successful and in circumstances where there is little hope that she will ever recover her costs.

[38] The respondent may revive his motion to change if:

(a) There is a material change in circumstance not currently before the court; and (b) He has paid at least $30,000 towards his arrears of child support, in addition to maintaining the ongoing monthly expenses.

Shore, J.

Released: May 29, 2019