Court File and Parties
COURT FILE NO.: FS-18-338-000 DATE: 2020 08 05
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Anett Sayad Applicant Farid S. Sayad Respondent
BEFORE: Bloom, J.
COUNSEL: Andrea Clarke, Counsel for the Applicant John D. Ekpenyong, Counsel for the Respondent
HEARD: 2020/08/04
ENDORSEMENT
I. INTRODUCTION
[1] The parties filed notices of motion; their claims were more defined in oral argument. The Applicant moves for orders for interim custody, interim child support including retroactive child support, and enforcement of the disclosure order of Justice Fowler Byrne of December 9, 2019. The Respondent moves for interim access to the children of the parties.
[2] The evidence before me was the affidavits of the Applicant dated February 21, 2020 and July 24, 2020; and the Respondent’s affidavit of July 31, 2020.
[3] Counsel for the Respondent today sent an e-mail to myself and counsel for the Applicant requesting relief relating to affidavit material filed by the Applicant. That matter was not argued before me; and I am not addressing it in this endorsement, save to say that I am not relying in my endorsement on any allegations of criminal charges faced by either party.
II. FACTS
[4] The parties were married on March 25, 2006 and separated on July 12, 2017.
[5] There are two children of the marriage, Soraya Sayad, born June 27, 2007, and Amir Sayad, born November 17, 2011.
[6] Proceedings were commenced by the Respondent, as Applicant, in the Ontario Court of Justice. They were transferred to this court, where the Applicant commenced the proceeding by a new Application, and the Respondent filed an Answer. Neither party has yet filed a pleading in this proceeding seeking a divorce.
[7] The two children live with the Applicant.
[8] The Respondent lives in a one bedroom basement apartment which has a living room, private bathroom, and kitchen. He is currently unemployed and collects government assistance. He has a Master of Science degree in biology and computer science.
III. ANALYSIS
A. Interim Orders for Custody and Access
[9] The Respondent does not contest the claim of the Applicant for an interim order for custody of the children and I make that order.
[10] However, in dispute is the access claim of the Respondent, which would include substantial overnight access.
[11] Soraya is now going through puberty. It would be inappropriate for her to share a bedroom with her brother as proposed by the Respondent in his access submissions. I am not satisfied for that reason and generally that overnight access for the Respondent is appropriate in his basement apartment; he has not convinced me on the evidence that overnight access there would be in the best interests of the children. It is, however, in their best interests that they have contact with their father to the maximum extent appropriate.
[12] Accordingly, I make an interim order that he have access to both children on alternate weekends on Saturday from 10:00 am to 6:00 pm and on Sunday from 10:00 am to 6:00 pm.; that access commences August 8, 2020. Further, he is to comply with these additional conditions: (1) he must comply with all applicable governmental protocols in relation to Covid-19 for both himself and the children; (2) he must pick up the children and drop them off by safe means at a public place such as a McDonald’s restaurant, to be agreed upon by the parties through counsel; (3) he must refrain from any non-medical use of drugs; and (4) he must not be impaired from the use of any substance while he has access.
B. Interim Order for Child Support
[13] The Applicant contends that the Respondent is capable of working and asks that he be imputed income of $65,000 annually for purposes of the calculation of interim child support.
[14] The Respondent argues that he cannot work for medical reasons, and for that reason opposes the imputation of income to him and child support being ordered against him.
[15] However, despite the order of Justice Fowler Byrne dated December 9, 2019, which called for production by him within 30 days of a letter from his treating physician explaining his health situation and how it impacted his ability to work, neither by disclosure to the Applicant or in evidence before this Court has such a letter been tendered by the Respondent.
[16] Accordingly, for purposes of an interim order for child support, based on s. 19 of the Child Support Guidelines, O. Reg. 391/97 and on the educational background of the Respondent and evidence before me of his experience in business and in the information technology field, I impute an annual income to him of $40,000. Further, based on that finding, I make an interim order that he pay child support for the two children in the amount of $597.00 monthly commencing August 14, 2020 and on the 14th of each month thereafter. In view of the state of the record and the interim nature of my order, it would be inappropriate to make a retroactive order for child support at this stage of the proceeding.
[17] This interim order for child support is reviewable at the instance of either party without a showing of change of circumstances, once the physician’s letter ordered by Justice Fowler Byrne has been produced to the Applicant.
[18] A Support Deduction Order and Information Form are to be prepared by the parties and filed with the appropriate court officials who are to have the Support Deduction Order signed, issued, entered, and sent for enforcement.
C. Enforcement of Disclosure Order of Justice Fowler Byrne
[19] The Respondent has not complied in full with paragraphs 3 and 4 of the order of Justice Fowler Byrne of December 9, 2019. I order that he do so within 15 days from release of these reasons, failing which the Applicant may move on proof of the said non-compliance, for any relief provided by law, and, in particular, for an order that the Respondent not be entitled to any further order of the court, unless the court orders otherwise. I make this order under FLR 1(8) of the Family Law Rules, O. Reg. 114/99.
IV. COSTS
[20] I will receive costs submissions from the parties in writing. They are to be no more than three pages, excluding a bill of costs. The Applicant is to serve and file her submissions by one e-mail to the Respondent and my assistant, Sara Stafford, at Sara.Stafford@ontario.ca within 14 days of release of this endorsement. The Respondent is to serve and file his submissions by one e-mail to the Applicant and Ms. Stafford within 14 days from service of the Applicant’s submissions. There is to be no reply.
Bloom, J.