Court File and Parties
COURT FILE NO: FC-13-191 DATE: 2020/03/30 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Fathia Omar Jumale, Applicant AND Abdillahi Duale Mahamed, Respondent
BEFORE: J. Mackinnon J.
COUNSEL: Thomas Hunter for the Applicant Respondent, Self-Represented
HEARD: March 30, 2020
Endorsement
[1] The respondent has commenced a Motion to Change with respect to the order of Blishen J dated December 21, 2018. That order was final as to child support, including arrears, but was temporary as to the respondent’s access to his children. A temporary restraining order was also granted.
[2] This endorsement addresses the respondent’s request for leave to bring an urgent motion pursuant to the Chief Justice’s Notice to the Profession which set out the criteria for urgency as part of this Court’s response to the COVID 19 crisis in Ontario.
[3] The request is denied as it pertains to access and the restraining order.
[4] First, given that those orders are temporary in nature, it is not open to the respondent to bring a Motion to Change. The trial must be completed before Blishen J who remains seized as the trial judge. A date for that continuation has been scheduled for June 15, 2020. Regardless of whether the trial is able to proceed at that time, a Motion to Change may not be commenced until there is a Final Order to be changed.
[5] Second, with respect to access, two further temporary orders addressing this issue have already been made by Engelking J, the latest of which was made on March 13, 2020. That order already addresses the change arising from the impact of the COVID 19 on the availability of supervised access through the Family Services in Ottawa.
[6] The urgency the respondent relies upon in relation to seeking a reduction in child support is that he has been in receipt of employment insurance since November 2019, when he lost his contract. The EI is $562 per week, said to be payable for 7 months only. The relief sought is to reduce child support to the table amount for the EI income only, commencing November 2019.
[7] I have reviewed all of the material delivered in support of the urgency request with respect to reducing child support and have determined that it too should be denied for the following reasons.
[8] The final order was based on an anticipated income of $34,200 for 2018 and was to be adjusted based on the respondent’s 2018 Notice of Assessment when available. The respondent’s actual income for 2018 was $47,574, however no adjustment upward was made to the child support being paid. And, whereas the existing order is based on the income of $34,200 there is no evidence before the court of what the respondent’s actual income in 2019 was. If it was 10/12 th of his actual 2018 income, then despite the loss of his contract in November he would be unable to establish a material in change in circumstances for any part of 2019.
[9] The respondent does not say why he lost his contract or what efforts he has taken to locate work since then. The respondent has been an IT consultant for several years during which time according to the applicant he has had work contracts of 6, 9 or 12 months, followed by periods of unemployment until he obtains another contract.
[10] Without that evidence, given his pattern of work it is unlikely his Motion could succeed prior to the commencement of the COVID 19 crisis and the response to it in Ontario. This coincides approximately with the issuance of the Motion to Change on March 23, 2020. The respondent relies on the COVID 19 restrictions in general, including on job availability in support of his claim for urgency.
[11] In general, the lay off of an employed person due to COVID 19 closures and that person’s receipt of Employment Insurance could well provide a compelling reason to temporarily reduce child support obligations. The respondent is not that person. His income has not gone down or been discontinued on account of COVID 19. Given his area of work as an IT Consultant it cannot simply be presumed that he has been and is unable to obtain any contract work now. Given that by his own evidence his EI will run out in May one would assume he is actively looking.
[12] In short, the respondent may have a case to claim urgency in reduction of his child support obligation on a temporary basis, but he has not presented a sufficient evidentiary foundation that he does. To do so would require him to establish his 2019 total income figure and to set out in detail all of his efforts to obtain replacement work since November 2019 and on an ongoing basis.
[13] In view of the fact that the respondent is a self-represented individual he may renew his request for an urgent hearing on the issue of child support when he is able to address the deficiencies I have noted.
[14] The applicant is entitled to costs of this hearing. I will decide the amount of costs by written submissions to me at SCJ.Assistants @ontario.ca. The applicant’s submission is due within one week from today and the respondent’s within one further week. These submissions should be brief and must be exchanged between the parties.
Dated at Ottawa this 30 March 2020 Justice J Mackinnon (This is my electronic signature)