Court File and Parties
COURT FILE NO.: FS-17-17883 DATE: 202006 02 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Tahira Khanum Applicant (Responding Party) – and – Jamil Ahmed Qureshi Respondent (Moving Party)
Counsel: Sarah Weisman, for the Applicant Richard M Gordner, for the Respondent
HEARD: June 2, 2020
THIS MOTION HAS BEEN BROUGHT PURSUANT TO THE PROTOCOL IN PLACE DURING SUSPENSION OF NORMAL COURT OPERATIONS DUE TO THE COVID-19 OUTBREAK.
ENDORSEMENT of triage justice
BONDY J.
1) Introduction
1The applicant, Tahira Khanum, and the respondent, Jamil Ahmed Qureshi, have four children. They are: Hasnain Ahmend born April 22, 1994 (“Hasnain”); Anas Ahmed Jamil born May 16, 1995 (“Anas”); Shahir Ahmed Jamil born January 16, 1999 (“Shahir”); and Ryan Zaheer Qureshi born August 15, 2004 (“Ryan”).
2After an undefended hearing, on December 15, 2017, Carey J. made an order granting custody of the four children to the applicant mother, a restraining order as against the respondent father in favour of the mother and the four children, and an order for a monthly payment equal to the ongoing household expenses in the amount of $1,743.30 per month to be credited against child and spousal support upon the determination of the respondent’s actual income.
3On March 23, 2018, Munroe J. ordered child support for the three youngest children in the amount of $909 per month based on the respondent’s income of $46,300 per year.
4A summary of the overarching relief sought by the respondent father is as follows:
- An order setting aside the custody and restraining order with respect to the three oldest children;
- A variation of child support.
5The respondent maintains that the court is without jurisdiction to grant custody or a restraining order pursuant to s. 46 of the Family Law Act, R.S.O. 1990, c. F.3, with respect to children who are 18 years of age or older and, accordingly, asked that it be set aside.
6The respondent also expresses a belief that the three older children have all finished school and are employed full time. The respondent owns his own truck. He maintains that his actual income was only $21,340 in 2018, $19,788 in 2019, and will be approximately the same in 2020. To be clear, the corporation through which he operates his truck also had additional income of $7,521 in 2018 and $2,999 in 2019. In other words, the respondent earns less than minimum wage driving his own truck. The respondent argues that, as a result, there should be a variation of child support.
2) Urgency
7This matter comes before the court during a time when the court has suspended its normal operations due to the global COVID-19 pandemic. At this time, the court is only hearing those motions that meet the definition of urgency set out in the Notice to the Profession of the Chief Justice of Ontario, available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/ (the Chief Justice’s notice). The Chief Justice’s notice includes the following:
Only urgent family law events as determined by the presiding justice, or events that are required to be heard by statute will be heard during this emergency period, including:
a) requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home);
b) urgent issues that must be determined relating to the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child;
c) dire issues regarding the parties’ financial circumstances including for example the need for a non-depletion order.
8A determination as to whether a matter meets the definition of urgency is intended to be simple and expeditious. It is not intended to be a motion in and of itself: see Onuoha v. Onuoha, 2020 ONSC 1815.
3) Conclusion
9I reiterate that the material filed by the respondent indicate that he does not have any communication with his children. The respondent also maintains that he is paying child support based upon significantly more income than he earns, and that child support should be reduced to reflect that only one of the four children remains a child of the marriage for purposes of child support.
10I conclude this matter meets the definition of urgency set out in the Chief Justice’s notice because it involves a restraining order, and potentially dire financial circumstances for the respondent, both of which are circumstances directly referred to in the Chief Justice’s notice.
11The motion shall be limited to the issue of the restraining order as it affects the three oldest children, the issue of ongoing child support, and the issue of arrears of child support.
12My determination on urgency is without prejudice to any position the parties may take before the motions judge. In addition, my determination on urgency is a preliminary determination only, and is subject to any ruling on the issue of urgency that may be made by the motions judge, who will have had the benefit of a review of the motion materials of both parties along with submissions of counsel.
4) Procedural Orders
13I make the following orders, all subject to further direction of the motions judge:
- The respondent (moving party) may serve and file his notice of motion and affidavit by email no later than Friday, June 5, 2020, at 4:00 p.m.
- The applicant (responding party) shall have until Wednesday, June 10, 2020, at 4:00 p.m. to serve and file a responding affidavit, also by email.
- The respondent (moving party) shall have until Friday, June 12, 2020, at 4:00 p.m. to serve and file his reply affidavit.
- The affidavits a) shall be limited to affidavits by the parties only, without leave of the court; b) shall not be longer than 10 pages, excluding exhibits; c) shall include only those exhibits relevant to the issues of the restraining order as it affects the three oldest children, the issue of ongoing child support, and the issue of arrears of child support. d) shall include as exhibits anything in the Continuing Record relied upon by the affiant, it being recognized that the judge does not have access to the Continuing Record; e) need not be sworn, so long as the parties are on the conference call during the motion and affirm their affidavits to the motions judge; f) shall when possible be sent as a single document including the affidavit and any exhibits to that affidavit in order to facilitate reading and/or downloading and/or printing of the affidavit and exhibits; g) shall be given a name which includes: the name of the affiant, and the date of execution; h) In the event the affidavit and exhibits cannot be sent as a single document then each exhibit shall be given a name which includes: the name of the document, and the name of the affiant where applicable, and the date of the document, and the letter of the exhibit where applicable.
- The respondent father shall also serve and file an up-to-date financial statement including 2018 and 2019 financial statements for his corporation, 2018 and 2019 income tax returns for both his corporation and himself personally, and 2018 and 2019 notices of assessment and reassessment, if any, for both the corporation and himself personally. He shall also serve and file a statement of gross revenues for his corporation for 2020.
- The motion shall be scheduled by trial coordination any time after Friday, June 12, 2020.
Christopher M. Bondy
Justice Released: June 2, 2020