COURT FILE NO.: FS-18-00002619-0000
DATE: 20190903
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sarajina Alam, Applicant
AND:
Dewan Ahmed, Respondent
BEFORE: S. Shore, J.
COUNSEL: Israel Apter, for the Applicant
Stefan Juzkiw, for the Respondent
HEARD: August 6, 2019
ENDORSEMENT
[1] The Applicant Mother and the Respondent Father were married for 17 years before they separated on March 24, 2018. They have three children together, ages 9, 5, and almost 2 years old. All three children have varying special needs. Following separation, the parties entered into four temporary consent orders dealing with the residential schedule of the children, child support, disclosure, sale of jointly owned property, and uncharacterized payments to meet mortgage payments. Both parties have brought motions to change or enforce these orders.
[2] The Mother is seeking to strike the Father’s pleadings for his failure to make the payments required under the previous orders and his failure to provide previously ordered financial disclosure. The Mother would also like carriage of the sale of two jointly owned properties, both of which were recently listed for sale, on consent.
[3] The Father is seeking to reduce his child support obligation and to end the uncharacterized payments to the Mother as a result of a material change to his income. He also wants to vary the current residential schedule, which provides that he is to have limited supervised access to the children.
[4] Both parties are requesting an order regarding the distribution of the net proceeds of sale of the two jointly owned properties.
[5] The questions to be addressed on this motion are as follows:
I. Children’s Residential Schedule: Should the current temporary order regarding the children’s residential schedule be varied, and if so, what residential schedule is in the best interest of the children?
II. Support: Has there been a material change in the Father’s financial circumstance that warrants a change to the current support orders and the uncharacterized payments? In answering this question, I must also turn my mind to:
a) The Father’s current income and whether income should be imputed to him; additionally, when should the material change, if any, take affect;
b) What amount, if any, is owing under previous court orders; and
c) What the current special and extraordinary expenses of the children are and whether there are arrears owing under the previous orders.
III. Breach of Court Orders: Is the Father in breach of the current court orders, and if so, what order should be made as a result of the breach?
IV. Listing and Sale of Properties:
a) Should the Mother be given carriage of the listing and sale of the two jointly owned properties?
b) How should the net proceeds of the sale of the two jointly owned properties be disbursed?
Prior Orders:
[6] The parties entered into four consent orders since their first attendance at court.
[7] The parties entered into a consent order on July 20, 2018, which provided for:
a) An uncharacterized payment in the amount of $1,906 per month, commencing August 15, 2018;
b) Payment of the children’s special and extraordinary expenses within seven days of receiving the receipt(s), prorated based on the parties’ 2017 income; and
c) Exchange of disclosure to recalculate the prorated sharing of expenses, based on the parties’ 2018 income.
[8] The parties entered into a consent order on October 17, 2018, which provided for the Father to have supervised access to the children as follows:
a) With Ibrahim, every Friday from 5:00 p.m. to 7:00 p.m.; and
b) With Ayesha and Sarrinah, every Saturday from noon to 2:00 p.m..
[9] The access was to be supervised by Shahana Alam, the Mother’s mother. The parties also agreed to an assessment by the Office of the Children’s Lawyer. The report was released on May 15, 2019.
[10] The parties entered into a consent order on December 12, 2018, which provided for:
a) The exchange of specific disclosure as set out in the order;
b) The reduction in the amount of the uncharacterized payment to $1,187 per month, commencing January 1, 2019; and
c) The previous order with respect to s.7 expenses to remain unchanged.
[11] The parties entered into a consent order in May 23, 2019, which provided that:
a) The Father will provide the disclosure set out in the Mother’s Request for Information; and
b) If the parties cannot agree on “swapping” the two jointly owned properties by August 1, 2019, they are to be listed for sale.
I. Children’s Residential Schedule
[12] Until recently, the Father has been exercising limited, supervised access to the three children, according to the October 2018 Order, as set out above. The access was being supervised by the children’s maternal grandmother. Both parties agree that the grandmother should not continue supervising access. The Father has chosen not to exercise access over the last few weeks.
[13] Both the Children’s Aid Society (CAS) and the Office of the Children’s Lawyer (OCL) have been involved with the family. The parties participated in an assessment with the OCL. The OCL released their report in May 2019. The OCL recommended that the Father’s access continue but that visits should be supervised by Brayden Supervision Services, through their Nurturing Parent Program.
[14] In his Notice of Motion, the Father seeks unsupervised access to the children every evening and overnight every weekend. During submissions, his lawyer clarified that the Father is now willing to accept the recommendations of the OCL, but he cannot afford to pay for supervision. The Father’s position is that his father, his sister, or his brother-in-law can supervise access. He is also seeking an order that gradually increases access and removes the supervision requirement, so that he can have more meaningful involvement in the children’s day-to-day life.
[15] While I am sympathetic to the Father’s desire to be more involved in his children’s lives, I find that it is in the best interest of the children to continue with supervised time with their father through the Nurturing Parent Program offered by Brayden.
[16] The parties have three children. Ayesha is the eldest child. She is 9 years old. She was born with a horseshoe kidney (her kidneys fused together prior to birth) and receives treatment at SickKids Hospital. Ibrahim is their only son. He is 5 years old. Ibrahim struggles with behaviour issues, including extreme episodes of aggression. He is receiving therapy once a week. Sarrinah is the youngest child. She is turning 2 on August 17. Sarrinah has severe hearing loss. Although she wears hearings aids, she is being taught sign language to assist with communication.
[17] The Mother makes some very serious allegations with respect to abuse that both she and the children suffered during the marriage. No purpose would be served by repeating the details, other than recognizing that the allegations include details of physical, emotional, verbal and financial control, and abuse. The Father acknowledges in his materials that he has anger management issues and that he would benefit from additional parenting skills. He has already taken several courses, but controlling his temper is an ongoing challenge at this time. Several incidents occurred following completion of these courses. There is evidence that his anger towards the Mother has not abated and he continues to involve the children in the dispute. He has also over held the children when he has spent time with them, despite the grandmother being present. He has had a tumultuous relationship with the children. Ayesha is currently reluctant to spend time with her father. The OCL’s report states that the Mother, the children, CAS, and the grandmother all confirm the Father’s abusive behavior.
[18] Further, the Father recognizes that he is unable to balance having all three children at the same time, as Ibrahim demands a lot of attention from him, to the detriment of the two other children.
[19] In light of the anger management issues, past history of abuse, inability to properly parent the three children, and the children’s special needs, supervision is still required during the Father’s time with the children.
[20] The question remains as to who should supervise the Father’s time with the children. It is clear that the maternal grandmother cannot continue to supervise. The situation has gotten so bad that it is now affecting her health. The grandmother and the Father acknowledge a recent incident where Ibrahim attacked his grandmother with a hammer during one of the supervised visits. The paternal grandfather supervised the visit on one occasion, but that too did not work, and it is unclear if the grandfather stayed for the entire visit. The Father suggested that his sister and brother-in-law could supervise, but there is no information before this court as to whether they would be appropriate or if they would even agree. Given the evidence before the court, including the abuse, the special needs of the children, the Father’s issues with anger management, the events that occurred during the supervised visits, and the Father’s acknowledgement that he currently lacks parenting skills to meet the children’s needs, I agree with the recommendations of the OCL, in that this family needs professional supervisors at this time. The Nurturing Parent Program would allow the visits to take place at the Father’s residence. The first hour would be spent providing the Father with parenting tools, followed by two hours of supervised time with the children where he can hopefully put those tools to use.
[21] The real issue relates to the cost of the program. The cost of the program is $55 per hour, with a minimum of 3 hours per visit, or a weekly cost of $330 to the Father. Two of the jointly held properties are currently listed for sale. One, if not both, will hopefully sell, freeing up some additional funds for the parties. Until the closing of sale, I would hope that the Father could prioritize the cost of spending time with his children over some of the discretionary expenses set out in his financial statement, including a salary allegedly being paid to his parents, that only started this past year.
[22] Finally, the Father expressed a desire to gradually increase his time with the children, so that he can learn sign language, how to care for the hearing aids, and how to deal with each of the children’s special needs. However, he did not put any plan before the court as to how or when this should occur. Therefore, it is premature to make any orders in this regard.
II. Support
a. The Father’s Income
[23] The Father’s position is that there has been a material change in circumstance to his income since the December 2018 Order, requiring a reduction in the support payments made for the benefit of the children. In 2017, he earned $143,000. His position is that his income in 2018 was approximately $40,000.
[24] The Father has not met his onus of proving a material change in circumstance to his income on a balance of probabilities from the date that the consent order was made in December 2018. The mistakes on his financial statements and income tax returns, along with his failure to provide proper disclosure, do not allow this court to properly determine this issue at this time. As such, his onus of proving a material change in circumstance has not been met.
[25] The Father’s income tax returns are unreliable. The Father earns income both as a real estate agent and as a landlord. The Father owns various rental properties. From review of his 2017 and 2018 income tax returns it is apparent that he is not consistent in the treatment of his rental income, and specifically what properties he reports on his income tax returns. He acknowledged errors in both his 2017 and 2018 income tax returns and advised that he had to refile, at least for 2017.
[26] In December 2018, the Father entered into a consent order with respect to ongoing support, suggesting that his 2018 income was similar to prior years (approximately $140,000). Just a few months later, he took the position that his income in 2018 was only $40,000. On his financial statement dated July 31, 2019, he took the position that his income was $76,000. These three positions are inconsistent with one another.
[27] In 2017, the Father reported a net business income of $109,060 from his real estate business. He advised that his income dropped significantly in 2018. He alleged his net income in 2018 was only $40,000, one-third of his prior income. However, in 2018, he leased/financed a luxury vehicle (Mercedes), over twice the cost of his previous vehicle. He also paid his parents a salary from his gross income, which was not paid in previous years. The Father also advised that he could not provide his outstanding disclosure because he has been busy at work. None of this is consistent with his position that he had a drastic decrease in his income. At the very least, these new expenses should be added back to his income and grossed up for tax purposes. I was not given sufficient details to do so.
[28] The Mother requested basic disclosure from the Father, which has not been provided. Having regard to all of the above, it is difficult, on an interim basis, to determine the Father’s income with any accuracy. The court can and should draw a negative inference from the Father’s failure to provide the outstanding disclosure.
[29] Above all, in December 2018, the Father consented to an order for child support and an uncharacterized payment. He would – or should have known – his 2018 income at that time. He would have known how many sales he made during the year and his expected income. His 2019 income is not known because he earns commission income as a real estate agent and there are still five months left in this year for him to sell real estate.
[30] For the reasons set out above, based on the information before this court, the Father has not met his onus of proving his income for 2018/2019, or that there has been a material change in his income since December 2018.
[31] Any change to the support orders can be made at trial, or once full disclosure has been provided and is before the court. This matter can be set down for trial as early as January 2020, if the parties desire.
b. Arrears
[32] As set out above, I am not amending the payment provisions in the December 2018 Order retroactively or on a go-forward basis. The order remains unchanged. The Respondent has been paying monthly child support payments as set out in the previous orders. However, he stopped paying the uncharacterized payments as of October 1, 2018. Despite the Mother agreeing to a reduction of this payment in December 2018 (from $1,906 down to $1,187 per month), the Father has not made any payments and has accumulated arrears of $15,214. The arrears for the uncharacterized payments are calculated as follows:
October-December 2018: $1,906x3=$5,718
January-August 2019: $1,187x8=$9,496
Total: $15,214
[33] There are also arrears owing for special and extraordinary expenses for the children, set out below.
c. Special and Extraordinary Expenses
[34] The Father was required to pay his proportionate share of the children’s special and extraordinary expenses (s.7 expenses) within seven days of being provided with the receipts: see July 2018 and December 2019 Orders. The expenses claimed by the Mother include child care, dental fees, hearing aids, vaccinations, and soccer, all of which I find are proper s.7 expenses in this case. The Father alleged that he did not receive the receipts. Therefore, the Mother attached the receipts to her motion material. The Father still has not paid. The total claimed for s.7 expenses is $7,466.85, of which the Respondent’s proportionate share is $5,310.93. This money is owing to the Applicant.
[35] With respect to ongoing s.7 expenses, the Respondent shall pay his proportionate share of daycare and hearing aids (and related) expenses within 7 days of receiving any receipts from the Applicant. This is without prejudice to either party’s argument at trial.
III. Breach of Court Orders
[36] The Father has failed to make the payments required under the court orders (as set out above) and failed to provide disclosure set out in two prior orders.
[37] With respect to the missing disclosure, in her motion material the Applicant provided a very detailed chart setting out what was requested, what was provided, and what is still outstanding. The Respondent requested additional time to provide his disclosure. The Respondent had ample opportunity to provide disclosure. Some of the outstanding disclosure were first requested back in 2018.
[38] The breaches have not only increased the Applicant’s legal fees but have also caused delay in having any meaningful settlement discussions or moving this matter forward. The question remains what order should flow from these breaches.
[39] Rule 1(8) of the Family Law Rules, O. Reg. 114/99, sets out the remedies available to the court if a person fails to obey a court order. The remedies include costs, dismissing claims, striking documents filed, the party not being entitled to further orders from the court, postponing steps in the case or, on motion, a contempt order.
[40] While the Father’s breach of the court orders increased costs and delayed resolution of the case, I am not prepared to strike the Father’s pleadings or materials at this stage. However, as repeatedly stated by this court, an order is an order, and not a mere suggestion. Ignoring court orders should have consequences. There have been two orders for disclosure and two orders for payments of money that have been breached.
[41] I am going to adjourn this part of the Mother’s motion, to a date at the start of November, to allow the Father one final chance to remedy his breaches. If the breaches have not been remedied by November 1, 2019, the Mother can bring back her motion, before me or another judge of this court if I am not available, on seven days’ notice, and need only file updated material. The court can then entertain her request to strike the Father’s materials or his financial claims.
[42] The Father’s breach of the court orders will be addressed further when dealing with costs of this motion.
IV. Listing and Sale of Properties
a. Carriage of the Listing and Sale of the Properties
[43] The Father’s position is that he has now consented to the listing of both the matrimonial home and the investment property and no further order should be made at this time. I disagree.
[44] In July 2018, the parties agreed to list and sell the jointly owned property located at 7 Birdsilver Gardens, Toronto, Ontario (“Birdsilver”). This was an investment property. The Mother agreed that the Father could be the listing agent in order to save money on the commission. The Father made little effort to sell the property. He did not even place a “For Sale” sign on the front lawn and only had one open house. No offers were received. In September 2018, the Father moved into the property.
[45] On May 23, 2019, the parties consented to an order whereby they would either swap properties (the Mother would retain the matrimonial home and the Father would retain Birdsilver) or they would list both properties by August 1, 2019. The Order was clear as to how to affect the sale. The Father did not cooperate in choosing a real estate agent or signing the listing agreement until the eve of this motion, missing the August 1 deadline.
[46] The Mother has raised sufficient concerns about the Father’s willingness to cooperate on the listing and sale of the two properties. Therefore, any issues should be brought to my attention by way of a 14B motion, according to the timetable set out below. I am not prepared to remove the Father entirely from the process. It is expected that the parties will be able to resolve the issues so that 14B motions will not be necessary. If the matter needs to be heard on an expedited basis (given deadlines for signing offers back, etc.), the staff on the 10th floor should be alerted of such so that the matter can be brought to my attention.
b. Distribution of the Net Proceeds of Sale
[47] The Mother is requesting an order releasing her share of the net proceeds of sale of the two jointly owned properties, that she be paid any money owing to her by the Father from his share of the proceeds of sale, and that his remaining share be held in trust, pending further court order or agreement. The Father is seeking an order that the proceeds of sale be released to both parties, or in the alternative, to neither party. I see no reason to hold the Mother’s share of the net proceeds of sale in trust. For reasons set out below, some but not all of the net proceeds of sale should be released to the Father.
[48] The Father is in need of money to find somewhere to live and to pay for the supervised access set out above. However, there is a history of non-payment by the Father. I am not confident that he will make the payments required by court orders. Further, I am satisfied that there may be an equalization payment owing from the Father to the Mother. No argument was made that an equalization payment would be owing the other way.
[49] Therefore, some, but not all, of the Father’s share of the net proceeds of sale should be held in trust pending agreement between the parties or court order.
[50] The Mother is also requesting an order that she be reimbursed for half of the home insurance on Birdsilver. The Mother received notice from TD Insurance that they were going to cancel the insurance on both the matrimonial home and Birdsilver if the entire policy was not brought into good standing. The Mother paid $2,338.16 for both properties. The Father should reimburse her for 50% of that amount from his share of the proceeds of sale of the first property to sell.
[51] Orders to go as follows:
I. Children’s Residential Schedule: The current temporary order regarding the Respondent’s time with the children remains unchanged. The Respondent’s time with the children shall be supervised by Brayden Supervision Services through their Nurturing Parent Program, at the Respondent’s expense.
II. Support:
a) On a without prejudice basis at trial, the Respondent’s motion to vary child support and the uncharacterized payments to the Applicant is dismissed.
b) The Respondent owes arrears of child support and the uncharacterized payments, pursuant to prior court orders, in the sum of $15,214 to the Applicant.
c) The Respondent owes arrears of $5,310.93 to the Applicant for his proportionate share of the children’s special and extraordinary expenses, pursuant to prior court orders
d) On a without prejudice basis, the Respondent shall pay his proportionate share of the children’s special and extraordinary expenses within seven days of receiving the invoices from the Applicant. The current and extraordinary expenses shall include, but are not limited to:
a) daycare;
b) hearing aids and related expenses; and
c) dental fees.
III. Breach of Court Orders: The Respondent shall provide all outstanding disclosure (specified in two prior court orders) prior to November 1, 2019. If the Respondent fails to provide his outstanding disclosure prior to November 1, 2019 and fails to pay his ongoing child support and the uncharacterized payments pursuant on an ongoing basis as set out in prior court orders, the Applicant may bring back her motion to strike the Respondent’s materials or financial claims, before me or another Judge of this court if I am not available, on seven days’ notice. The Applicant may rely on previously filed affidavits and need only to file an affidavit updating the court on recent events.
IV. Listing and Sale of Properties
a) If the parties are unable to resolve an issue with respect to the listing and sale of the two properties, either party may bring a 14B motion to my attention. If the issue needs to be determined on an expedited basis, the court staff should be asked to bring the material to my immediate attention.
b) On the closing of the sale of the two properties, the net proceeds of sale shall be divided equally between the two parties and distributed as follows:
a) The Applicant shall receive her share of the net proceeds of sale.
b) From the Respondent’s share of the net proceeds of sale:
i. The Applicant shall receive:
a. $1,169.08, for the Respondent’s half the home insurance on the two properties;
b. $5,350.93, being the arrears of special and extraordinary expenses owing as of the hearing of this motion (as set out above); and
c. $15,214, being the arrears owing for the uncharacterized payments as of the hearing of this motion, as set out above.
ii. 50% of the Respondent’s remaining net proceeds of sale (after payments under (i) above have been paid to the Applicant) shall be paid out to the Respondent.
iii. The Respondent’s remaining 50% of his share of the net proceeds of sale shall be held in trust by the real estate lawyer or the Respondent’s family law lawyer, pending further order of this court or agreement between the parties.
COSTS
[52] Given that the Father was not successful on his motions and the Mother was partially successful, she is entitled to some costs of this motion.
[53] I do not have the benefit of bill of costs or offers to settle before me and therefore cannot determine costs at this stage.
[54] If the parties are unable to reach an agreement on costs within 10 business days of the release of these reasons, the Applicant shall serve and file cost submissions. The Respondent shall file any responding material within 10 business days of receipt of the Applicant’s submissions. Submissions shall not exceed four pages, not including the bill of costs, offers to settle or any other relevant material.
S. Shore, J.
Date: September 3, 2019