Court File No. FC-18-57572
Superior Court of Justice Endorsement
Applicant(s): Ayesha Abdur-Rashid
Counsel: Poroshad Mahdi
Respondent(s): Kamaluddin Abdur-Rashid
Counsel: Maria Elka Zagazeta Garcia
Date: September 17, 2020
Relief Requested
[1] The Applicant brings a motion requesting the following relief: a) an order striking out the Respondent’s pleadings; b) an order for spousal support in the amount of $4,000 per month retroactive to the date of separation; and c) an order that the spousal support payments be indexed annually on the anniversary date of the order by the percentage increase in the Consumer Price Index.
Background
[2] The parties were married on June 30, 1996 and separated September 22, 2017.
[3] There are two children of the marriage namely Kamruddin Abdur-Rashid born April 29, 1992 and Kareem Abdur-Rashid born July 7, 1998. Both are now adults and both are living independent of the parties.
[4] The Applicant worked throughout the marriage. At one time, she owned a butcher business and a jewellery business. These were prior to the couple relocating to Canada in 1997 and she worked as a factory worker in Canada.
[5] The Applicant is currently unemployed. She advances a lack of access to a vehicle and her knee surgery to explain why she has been unable to work. Insufficient medical information was provided to demonstrate that the Applicant is unable to perform any work. There is a summary of hospitalization dated June of 2019 where it is confirmed that knee replacement surgery occurred and indicated she did very well postoperatively. This is over a year ago and her current ability or inability to work, from a medical perspective, is unknown.
[6] The Respondent has a PhD in chemistry. Following his immigration to Canada, the Respondent had employment as a senior research associate at the University of Toronto and as a research associate at Wilfred Laurier University. In 2004 he became self-employed operating a series of businesses commencing with Kanata Chemical Technologies Inc., followed by KCT Energy Limited and finally, Kamal Pharamachem Inc.
[7] Kamal Pharmachem was founded with his brother. It is a chemical technology company specializing in the development of innovative catalyst technologies that provide pharmaceutical manufacturing solutions to clients.
Request to Strike Pleadings
[8] The Applicant requests an order that the Respondent’s pleadings be struck. The basis of the request is the lack of financial disclosure, the refusal to cooperate with the request by the Respondent for a Talaq; and because he has not obtained the civil divorce “forthwith” as set out in the endorsement of Jarvis J. dated January 10, 2020.
[9] Rule 1(8) of the Family Law Rules, O. Reg. 114/99, as amended, states:
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 application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;
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.
[10] It appears the Respondent is following a pattern of being obstinate. He has not provided complete disclosure, he has not complied with the order to obtain the civil divorce forthwith and he has not been cooperative in the Applicant’s efforts to obtain a Talaq.
[11] The Respondent has been cavalier in his approach to this litigation. Despite entitlement, three years post separation he has made no voluntary payments to the Applicant for her support.
[12] The Respondent has not obtained the divorce, he states, because he was waiting for the marriage certificate and then the courts closed. The courts did not close until more than two months after the consent order including the provision that he obtain the divorce forthwith. The court has been processing divorce applications for several weeks.
[13] The Applicant states that the Respondent is not cooperating with the Respondent’s request for a Talaq. In his submissions, the Respondent makes reference to a Muslim cleric, unnamed, that allegedly told him he was unable to provide the Talaq. No sworn affidavit was offered and the name of the cleric withheld.
[14] Orders are not recommendations and non-compliance with court orders have consequences.
[15] The Court of Appeal in Kovachis v. Kovashis, 2013 ONCA 663, held that on a motion to strike in a family case due to non-compliance with a court order, the court must consider whether the default is wilful and whether an order to strike is the only appropriate remedy (at para 33). Further, the Court in Kovachis held that if a party has made disclosure which is substantial in relation to the issues in the case, and although not entirely complete, the striking of pleadings is not the appropriate remedy (at para 28).
[16] I decline to strike the Respondent’s pleadings as this is a remedy of last resort. He will be given a further opportunity to obtain the civil divorce forthwith and to comply with all disclosure requests.
Spousal Support
[17] The Applicant makes a claim for compensatory and non-compensatory spousal support. She is requesting a temporary order of $4,000 per month in spousal support retroactive to the date of separation.
[18] Compensatory support arises from career dislocation; an economic disadvantage as a result of the roles adopted in the marriage; or when a spouse conferred a substantial career enhancement opportunity on the other spouse. The ultimate purpose of spousal support is to relieve any economic hardship that results from the marriage or its breakdown.
[19] Non-compensatory support arises whenever a lower income spouse experiences a significant drop in standard of living after the marriage breakdown resulting from the loss of access to the higher paying spouse’s income.
[20] Section 15.2 of the Divorce Act, R.S.C. 1985 c. 3 (2nd Supp), states:
Spousal support order
15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.
Interim order
(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1).
Terms and conditions
(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.
Factors
(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
Spousal misconduct
(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.
Objectives of spousal support order
(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. 1997, c. 1, s. 2.
[21] The general principles guiding the exercise of the court's discretion when dealing with support pending trial were summarized by Penny J. in Knowles v. Lindstrom[^1],
It is well-established that interim support motions are not intended to involve a detailed examination of the merits of the case. Nor is the court required to determine the extent to which either party suffered economic advantage or disadvantage as a result of the relationship or its breakdown. These tasks are for the trial judge. Orders for interim support are based on a triable or prima facie case. An order for interim support is in the nature of a “holding order” for the purpose of maintaining the accustomed lifestyle pending trial, Jarzebinski v. Jarzebinski, 2004 CarswellOnt 4600 (ONSC) at para. 36; Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689, 2012 CarswellOnt 14841 (ONSC) at para. 24.
[22] In Cassidy v. McNeil[^2], at para 68 the Ontario Court of Appeal stated that spousal support should be based not on a budget of expenses of the recipient but on income sharing. Further, in the absence of the opportunity to carry out an in-depth analysis of the parties’ circumstances, which is better left to trial, the court tries to achieve "rough justice".
[23] In assessing the Applicant’s entitlement, I note that this was a 26-year cohabitation with 21 years of marriage.
[24] The Applicant was the primary parent to the parties’ children.
[25] The Applicant worked at a factory following their immigration to Canada. She supported the Respondent who spent many years as a student obtaining a PhD in chemistry.
[26] The Applicant is not working.
[27] The Respondent is self-employed.
[28] I am satisfied that there is a prima facie entitlement to spousal support. In reviewing the Applicant’s financial statement, she notes no income. She resides with a daughter and does not list the payment of rent.
[29] When considering need, regard must be made to not just necessaries but to the lifestyle enjoyed during the relationship.
[30] The significant challenge is determining the Respondent’s income for the purpose of support.
[31] In his financial statement sworn February 18, 2019 the Respondent claims annual income of $6,666.72.
[32] By letter dated May 31, 2019 his brother, identified as a director of Kamal Pharmachem, claims the Respondent’s income to be $60,000 per annum effective June 1, 2019.
[33] By letter dated August 30, 2019 his brother, identified as a director of Kamal Pharmachem, claims the Respondent’s income to be $84,400 per annum effective September 1, 2019.
[34] In his affidavit sworn September 10, 2020 the Respondent claims income of $41,800.
[35] In a letter dated September 1, 2020, Darryl Irwin, a tax partner with Price Waterhouse Coopers, indicates the Respondent’s salary as
a) 2017 - Nil;
b) 2018 - $6,667
c) 2019 - $41,800 (with $25,000 deferred for a total: $66,800)
d) 2020 - $36,700 for the first 7 months of the year, prorated: $62,914.
[36] The Applicant states that the Respondent puts many personal expenses through the business.
[37] The Respondent is a shareholder and, in addition to his salary, may very well be entitled to dividends although no information was provided in this regard.
[38] The Applicant states that in addition to his salary, the Respondent has draws from the company.
[39] It is noteworthy that the Respondent has a home, two cars and eats out frequently.
[40] The Applicant requests that the court impute income to the Respondent in the amount of $186,000.
[41] I am not satisfied that the Respondent’s income is that high.
[42] For the purpose of a temporary order I have imputed income to the Respondent in the amount of $100,000. The basis for the imputation is the letter dated August 30, 2019 where his brother, identified as a director of Kamal Pharmachem, claimed the Respondent’s income to be $84,400 per annum effective September 1, 2019. When I consider this letter, his education with a PhD in chemistry, the non-taxable draws, the lifestyle and the lack of disclosure, I have determined that the Respondent’s income is in or about $100,000 and it is this income level I have used to determine spousal support.
[43] The Applicant has an obligation to become self-sufficient. She has not satisfied me that she is unable to work at any job. Medical information indicating her limitations to employment would have assisted the court. However, I am mindful that the Applicant had knee replacement surgery, has no vehicle, worked at low level factory jobs and is 59 years of age. I believe that she is able to make a contribution to her own needs. For these reasons I have imputed an annual income to her of $15,000.
[44] The mid range of spousal support at this income level is in or about $2,600.
[45] I have considered the request by the Applicant for an order of retroactive spousal support.
[46] The purpose of a temporary spousal support order is to make temporary provisions for the support of the Applicant.
[47] As stated, there is significant disagreement over the income of the Respondent.
[48] Disclosure is incomplete.
[49] An order for retroactive child and spousal support is best left to the trial judge when all information is available.
[50] However, this motion was delayed as a result of Covid-19.
[51] The Applicant should not have to suffer as a result of court delays. Accordingly, I am making an order retroactive to May 1, 2020 when the motion would likely have been heard.
Indexing Spousal Support
[52] This is a temporary order and, accordingly, I decline to make an order that the spousal support payments be indexed annually on the anniversary date of the order by the percentage increase in the Consumer Price Index.
Order
Commencing May 1, 2020 and on the fist of every month thereafter, the Respondent shall pay to the Applicant, temporary spousal support in the amount of $2,600.
The Respondent shall, forthwith, obtain the civil divorce at his own expense as was ordered by Jarvis J. on January 10, 2020.
The Respondent shall do everything he can to cooperate and facilitate the Applicant’s request for a Talaq.
SDO to issue.
If the parties cannot agree on the issue of costs of the herein motion, I shall consider the request for costs. The Applicant shall serve on the Respondent and file in the Continuing Record her written submissions, limited to three pages, exclusive of the Bill of Costs and Offers to Settle within 20 days of the date of this decision. The Respondent shall serve on the Applicant and file in the Continuing Record his written submissions, limited to three pages each, exclusive of the Bill of Costs and Offers to Settle within 15 days thereafter. If no submissions are received within the time period set out herein, an order will be made that there will be no costs.
Justice G.A. MacPherson
[^1]: Knowles v. Lindstrom, 2015 ONSC 1408
[^2]: 2010 ONCA 218, 2010 CarswellOnt 1637 (Ont C.A.)