Court File and Parties
NEWMARKET COURT FILE NO.: FC-11-37408-E002 DATE: 20200611 SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: Director, Family Responsibility Office For The Benefit Of: Sabaa Yasmine Shaikh, Applicant and Muhammad Ali, Respondent
BEFORE: The Honourable Mr. Justice G.A. MacPherson
COUNSEL: Azra Champsi, for the Applicant Omar Khan, for the Respondent
HEARD: In writing
Endorsement
Relief Requested
[1] The Respondent, Mr. Ali, brings a motion, on an urgent basis, requesting an order terminating the Warrant for Committal dated June 6, 2019.
[2] The Family Responsibility Office (hereinafter “FRO”) opposes the motion.
[3] FRO was served with the Respondent’s Notice of Motion by fax on May 11, 2020.
[4] In my endorsement dated May 12, 2020 I set out timelines for the filing of motion materials.
[5] On May 27, 2020 I made the following order: “The Warrant of Committal issued by MacPherson J. dated June 6, 2019 for the incarceration of Muhammad Naeem Ali for 118 days is suspended until further court order.”
[6] I noted in my endorsement dated May 27, 2020 the following: “Although provided an opportunity to respond to the motion as set out in my endorsement dated May 12, 2020, the FRO did not file materials.”
[7] As it turns out FRO was not served with my endorsement dated May 12, 2020 as anticipated. This error was an administrative court error. FRO did receive a copy of the endorsement dated May 27, 2020.
[8] Upon notification that FRO did not receive the endorsement dated May 12, 2020 setting out filing timelines, in my endorsement dated May 29, 2020 I permitted FRO to bring a motion pursuant to Rule 25 (19) of the Family Law Rules (hereinafter FLR).
[9] FRO brings a motion to set aside my May 27, 2020 order and to dismiss the motion made by the Respondent.
Background
[10] The parties entered into a separation agreement dated January 18, 2013. They agreed to fix an amount for child support. Child support, effective January 1, 2013 was fixed in the amount of $3,000 per month representing Mr. Ali’s table amount of child support. The parties also agreed that child support would be non-variable for a period of 5 years. Neither party was permitted a review until January 1, 2018. It was agreed that neither party would be required to provide financial disclosure.
[11] Mr. Ali immediately went into arrears.
[12] On February 25, 2016 a support enforcement order was made that required Mr. Ali to continue to pay ongoing child support of $3,000 per month and to also pay $1,500 per month towards the accumulating arrears.
[13] By May 2016 Mr. Ali, again, began accumulating further arrears. From May 2016 through June 2019, Mr. Ali made payments of $10,500. His obligation was $4,500 per month or $171,000 for the period.
[14] On June 6, 2019 a Warrant for Committal for 118 days was made by MacPherson J.
[15] Mr. Ali commenced a Motion to Change in June 2019. The Motion to Change sought to reduce his support obligation to $1,349 per month retroactive to January 1, 2018. If successful, he would reduce his arrears by $29,718. The status of the Motion to Change is unknown.
[16] On June 27, 2019 Mr. Ali brought a motion requesting an order that the Warrant for Committal be terminated. MacPherson J. dismissed the motion on the basis that even if the alleged cash payments were considered and even if the Motion to Change was successful, Mr. Ali would still owe in the area of $135,000 in support.
[17] On November 25, 2019 Mr. Ali brought another motion, this time by way of 14B, requesting an order that the Warrant for Committal be terminated. McDermot J. endorsed that the matter would need to proceed to a full hearing. Mr. Ali did not schedule the matter for a hearing so far as I am aware.
[18] This is the third request for a termination of the Warrant for Committal. The basis of the current request now includes concern as a result of the Covid-19 pandemic. Mr. Ali states: “In light of the current pandemic and the request of the Public Safety Minister Bill Blair quoted in CBC news to mitigate the impact of Covid-19 in jails including, ‘early release for certain offenders’ or to ‘depopulate federal penitentiaries’ ….I am seeking the Warrant of Committal is (sic) terminated.”
Urgency
[19] As a result of COVID-19, regular operations of the Superior Court of Justice are suspended at this time, as set out in the original Notice to the Profession dated March 15, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/.
[20] The court is prioritizing “urgent” matters. A supplemental Notice to the Profession dated April 2, 2020 sets out an expansion of the list of less urgent matters the court will attempt to deal with. A further Notice, effective May 19, 2020, expands matters being considered by the Court. The test of urgency is required for Motions.
[21] In Thomas v. Wohleber, 2020 ONSC 1965 the court found that the following factors are necessary in order to meet the requirement of urgency:
- The concern must be immediate; that is one that cannot await resolution at a later date;
- The concern must be serious in the sense that it significantly affects the health or safety or economic well-being of parties and/or their children;
- The concern must be a definite and material rather than a speculative one. It must relate to something tangible (a spouse or child’s health, welfare, or dire financial circumstances) rather than theoretical;
- It must be one that has been clearly particularized in evidence and examples that describes the manner in which the concern reaches the level of urgency.
[22] There is a global Covid-19 pandemic. The pandemic has, at the writing of this decision, resulted in over 96,000 infections and just shy of 8,000 deaths in Canada. Covid-19 is serious enough that it can significantly impact the health of individuals.
[23] Social isolation is required to stop the spread of the virus. Businesses are closed, impacting the finances of many citizens. For those fortunate enough to continue employment, many work from home or are required to follow strict government guidelines on personal protective equipment and / or social distancing.
[24] Enforcing the 118-day Warrant of Committal against Mr. Ali right now will increase his risk of exposure to Covid-19.
[25] For all of these reasons, I have determined the motion is urgent.
Warrant of Committal
[26] My order dated May 29, 2020 was made without adequate notice to FRO. FRO did not obtain a copy of the endorsement outlining filing deadlines and did not have evidence before the court when the order was made. FRO has now filed materials.
[27] Pursuant to Rule 25(19) of the FLR an order made without proper notice may be changed.
[28] Procedural fairness dictates that FRO should have an opportunity to file materials. They have now done so.
[29] Subrule 30(9) of the FLR states as follows:
ISSUING WARRANT OF COMMITTAL
If the recipient, on a motion with special service (subrule 6 (3)) on the payor, states by affidavit (or by oral evidence, with the court's permission) that the payor has not obeyed a condition that was imposed under subrule (8), the court may issue a warrant of committal against the payor, subject to subsection 41 (15) (power to change order) of the Family Responsibility and Support Arrears Enforcement Act, 1996. O. Reg. 114/99, r. 30 (9) ; O. Reg. 76/06, s. 8 (2).
[30] Subrule 30 (8) of the FLR states as follows:
CONDITIONAL IMPRISONMENT
The court may make an order under clause 41 (10) (h) or (i) of the Family Responsibility and Support Arrears Enforcement Act, 1996, suspending the payor's imprisonment on appropriate conditions. O. Reg. 114/99, r. 30 (8) ; O. Reg. 76/06, s. 8 (1).
[31] Clauses 41(10)(h) and (i) of the Family Responsibility and Support Arrears Enforcement Act 1996, states as follows:
Powers of court
(10) The court may, unless it is satisfied that the payor is unable for valid reasons to pay the arrears or to make subsequent payments under the order, order that the payor,
(h) be imprisoned continuously or intermittently until the period specified in the order, which shall not be more than 180 days, has expired, or until the arrears are paid, whichever is sooner; and
(i) on default in any payment ordered under this subsection, be imprisoned continuously or intermittently until the period specified in the order, which shall not be more than 180 days, has expired, or until the payment is made, whichever is sooner. 2005, c. 16, s. 24 .
[32] Section 41(15) of the Family Responsibility and Support Arrears Enforcement Act 1996, provides as follows:
The court that made an order under subsection (10) or (12) may change the order on motion if there is a material change in the payor’s or other person’s circumstances, as the case may be.
[33] The Respondent argues that Covid-19 is a material change in circumstances and quotes a March 31, 2020 CBC article that reported: “Minister Blair has asked both the Commissioner of the Correctional Service of Canada and the Chair of the Parole Board of Canada to determine whether there are measures that could be taken to facilitate early release for certain offenders.”
[34] In the same article, the Chief Public Health Officer, Dr. Theresa Tam, is quoted as saying that “infections in correctional facilities, nursing homes and Indigenous communities are very concerning because their potential to spread fast, with grave consequences.”
[35] For these reasons, the Respondent requests an order terminating the Warrant of Committal.
[36] FRO requests a dismissal of the Respondent’s motion stating that the request was made twice previously and is now res judicata. Further, FRO argues that the Solicitor General’s response to Covid-19 is to have all correctional institutions comply with healthcare policies and procedures and are taking actions to stop the transmission of Covid-19. Case Management Officer AnnMarie Connell states at paragraph 26 of her affidavit sworn June 3, 2020: “Compliance with the policies and availability of supplies are being monitored daily. Actions taken to stop the transmission of Covid-19 include screening of all individuals entering the institutions including a screening process for all staff, visitors and inmates.”
[37] FRO states that “As a result of the significant measures taken by the correctional institutions to protect against the transmission of Covid-19, the support payor faces minimal risk, if any, of exposure.”
[38] The Warrant of Committal was issued June 6, 2019. Over a year later the Respondent has not been incarcerated.
[39] As a result of the Covid-19 pandemic, the warrant for committal has quite a different complexion now than it had when issued one year ago.
[40] There is no doubt in my mind that incarceration, during the Covid-19 pandemic, will increase the risk the Respondent may become infected with or without underlying medical conditions.
[41] While it is imperative to the administration of justice that court orders are enforced, one has to be sensible. The Respondent is not a danger to society. He is in arrears of his support obligation.
[42] Businesses are closed. The court’s regular operations are suspended. The province is in a state of emergency. There are other methods of enforcement that do not require incarceration during a pandemic.
[43] It is anticipated that Covid-19 will, eventually, run its course. The timing of this occurrence is unknown.
[44] A year has passed since the Warrant of Committal was issued. The Respondent has not yet been incarcerated. Indeed, if he had already commenced his sentence, the circumstances might be very well be different.
[45] The Warrant of Committal will be enforced. It is not being terminated.
[46] However, suspension of the Warrant of Committal will protect the Respondent from the risk associated with Covid-19 and will permit FRO to use this enforcement tool when the circumstances regarding Covid-19 improve.
Order
[47] Based on the above I make the following order:
- My order of May 27, 2020 stands. The Warrant of Committal issued by MacPherson J. dated June 6, 2019 for the incarceration of Muhammad Naeem Ali for 118 days is suspended until further court order.
- FRO may bring a motion to lift the suspension as the risks associated with Covid-19 reduce and the Ontario government eases Covid-19 related restrictions.