COURT FILE NO.: FS-11-3163-00
DATE: 2020 09 30
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Tarek El Said Abdou Sabry
A. Bakaity, Counsel for the Applicant
Applicant
- and -
Barbara Monique Loeff
Self-represented
Respondent
HEARD: September 25th, 2020 by teleconference
REASONS FOR DECISION
LEMAY J
[1] The Applicant and the Respondent are subject to a final Order of the Court in relation to child support. On June 26th, 2020, the Applicant brought a Motion to Change the final Order on the basis that the Applicant’s financial circumstances have changed as a result of the COVID-19 pandemic.
[2] Shortly after serving his Motion to Change, the Applicant sought leave to bring an urgent motion to have the enforcement of the existing Order to pay child support suspended pending the outcome of his motion to change. That motion was originally granted as an urgent motion by Andre J on July 8th, 2020.
[3] The Respondent was not given the opportunity to participate in the motion on July 8th, 2020. As a result, she brought a motion before Fowler Byrne J. to set aside the Order of Andre J. Fowler Byrne J. granted that motion, but stated that the merits of the stay motion could be brought back on by the Applicant.
[4] The Applicant sought a further urgent appointment with the Court. The matter was assigned to me, and I provided the parties with scheduling directions that led to the matter being heard by teleconference on September 25th, 2020. At that time, I reserved my decision.
[5] For the reasons that follow, I have determined that the Order of Stribopoulous J. should be stayed for a six month period beginning July 1st, 2020. This determination is without prejudice to the Applicant seeking a further stay.
Background
a) The Underlying Litigation
[6] From the records filed by both sides, it is clear that this was a very contentious matter. It led to a final order of Stribopoulous J. on May 14th, 2019. This Order was made on consent, and contains the following provisions:
The Applicant/Father shall pay ongoing child support to the Respondent/Mother for the support of the child in the sum of one thousand seven hundred and fifty-nine dollars and fifty cents ($1,759.50) per month commencing June 1st, 2019 based on an agreed-upon imputed income of $213,750 and the Table amount for one child under the Child Support Guidelines. Support Deduction Order to issue.
The Table child support in paragraph 2 above shall be fixed and non-variable until the Child has completed high school. At that time, the parties shall determine, either on consent or by return to court by way of motion to change, what the new child support amount will be going forward. At no time shall either party ever be at liberty to seek child support from the other for an amount other than specified in paragraph 2 above from June 1, 2019 until the Child completes high school.
[7] The Affidavits filed by the parties contain a considerable amount of information about this past litigation. For the purposes of my decision, only the following points are relevant:
a) At the outset of the litigation, the Applicant was not forthcoming about his income or his business information.
b) The Child is currently ten years old and will turn eleven in November. As a result, the Child support amount is supposed to run for another eight (8) years.
c) There were no findings of fact made in the underlying litigation, at least that I am aware of.
d) The Respondent remains employed, and the COVID-19 pandemic has not affected her income.
[8] In any event, after the Order of Stribopoulous J., child support payments were made by the Applicant for a period of most of a year. I also understand that the arrears owing under the Order have been paid. The last payment at the ordered amount was made in March of 2020. Since that time, the Applicant has paid child support based on an income of $24,000.00, which produces a much lower monthly amount.
[9] The Applicant runs a soccer club, which appears to be his primary source of income. I do not know what the Applicant’s income is in a regular year, although his income was imputed at $213,750.00 per year for the purposes of the support award. It is clear, however, that his income from the soccer club has been either significantly reduced or eliminated for this calendar year. It is also clear from the materials that were filed that the closure of the soccer club was ordered by the Provincial government as part of the ongoing pandemic. The closure of the business is beyond the Applicant’s control.
[10] On that basis, the Applicant has brought this motion to change. The Applicant is bringing this motion to have the Order stayed because the Family Responsibility Office (“FRO”) has advised him that they will garnish his CERB benefits at a rate of 50%.
[11] The Applicant argues that he is in considerable debt and is unable to pay these amounts out of any savings. The Respondent argues that the Applicant has significant financial resources and can pay these amounts out of his savings. There is very little in the way of evidence before the Court to assist me in determining the truth of these allegations. However, for the purposes of this decision, I am assuming that the Applicant does have some assets with which to continue to pay child support.
b) The Procedural Issues
[12] The Motion to Change was served June 26th, 2020. It has not moved forward in any meaningful way because the Response has not been filed. The Court office was not accepting filings until September 14th, 2020. I understand that the Applicant had been seeking an urgent motion date with the Court for some time before the Motion to Change was served.
[13] The motion for a stay was forwarded by the triage judge to Andre J., who reviewed the material that had been filed by the Applicant and granted the motion by way of an endorsement dated July 3rd, 2020. However, Andre J. only stayed the Order for a period of five months.
[14] The Respondent brought a motion to have the Order of Andre J. set aside on the basis that the Order of Stribopoulous J. was not put before Andre J., and that the Respondent did not otherwise have the opportunity to make submissions to Andre J.
[15] Fowler Byrne J. granted the Respondent’s motion on the basis of Rule 25(19)(e) of the Family Law Rules. However, Fowler Byrne J.’s decision was without prejudice to the Applicant’s right to bring this motion on a regular motions day and with notice as provided under the Rules.
[16] The Applicant again sought an appointment to bring an urgent motion. The materials that the Applicant provided to the Court did not include reference to the specific provisions in the Order of Stribopoulous J. However, the practice directions in terms of what should be provided to the Court when an appointment for an urgent motion is sought only requires a letter to be written.
[17] The matter was referred to me for a review. I made a prima facie finding that the matter was urgent for a number of reasons. First, the change in the Applicant’s income appeared to be significant. Second, the next regular motions day that the Court could offer the Applicant was sometime in December and case conference dates are even further off. Third, the matter had already been considered urgent previously. I am of the view that the matter is the type of case that falls into the urgent category at this stage in the Court’s pandemic operations.
Law and Analysis
a) The Positions of the Parties
[18] The Applicant argued that the stay should be granted on the basis that his income has, at least temporarily, been significantly reduced. The Applicant argued that any issues relating to the interpretation of the order as being “fixed and non-variable” should be left to the judge hearing the motion to change. Finally, the Applicant argued that the child of the marriage would not be prejudiced by granting a stay, as the Respondent continues to earn a significant income.
[19] The Respondent argued that the order is “fixed and non-variable” and I should not grant the motion to stay at this stage. The Respondent further argued that the reason that the Order was fixed and non-variable was because of the Applicant’s significant failures to disclose his financial records and/or to pay the appropriate support. The support award took these failures into account and should not be reduced at this point. The Respondent was of the view that the Applicant was simply engaging in further attempts to evade his responsibilities to pay support. Finally, the Respondent argued that the Applicant had significant assets and should be able to pay the support even if he wasn’t earning income.
b) Analysis
[20] The Court will ultimately have the jurisdiction to consider the Applicant’s Motion to Change when this matter proceeds to a hearing on the merits. In the meantime, the Court has the jurisdiction to make an interim Order on terms.
[21] I start with the observation that it may be difficult for the Applicant to succeed in his Motion to Change. In particular, the phrase “fixed and non-variable” in the Order of Stribopoulous J. may present challenges. Certainly, the Respondent argues that the wording of the clause should preclude the Applicant from changing the amount of support he pays.
[22] However, it is not my role as a motions judge to determine the merits of the case. There may well be legal arguments that can be advanced by the Applicant to justify a change in his support amounts. In particular, I note the following:
a) A global pandemic of this nature was arguably not foreseeable when the Order was entered into.
b) The closure of the Applicant’s business was as a result of events beyond his control and was mandated by the government.
[23] As a result, there may be arguments that can be made by the Applicant in support of his Motion to Change. It is not the role of the Court at this stage to make a determination on the merits.
[24] This brings me to the Respondent’s next argument as to why the stay should not be granted. She argues that the Applicant has assets that he could pay the support amounts out of. It is possible that this is true. However, the Applicant has deposed that his only source of income at the moment is CERB, and that he is responsible for the care of his aged mother out of this amount. I also note that there is no indication as to specific assets that the Applicant has that could be used to pay this support. While the existence of assets is a factor that might justify a continuation of the support payments, it is not as relevant as the other issues raised by the Applicant.
[25] In that respect, I note the Respondent’s assertion that the Motion to Change is just another tactic by the Applicant to avoid paying support. This assertion is not supported on the record I have before me for the following reasons:
a) The Applicant did make payments until the end of March, 2020.
b) The closure of the Applicant’s business was as a result of events completely beyond his control.
c) Although the Applicant did unilaterally reduce his support amounts, he did not stop paying support. Instead, he paid support based on the amounts he was receiving from CERB. The Applicant also moved to vary the amount even though the Courts were closed to all but urgent matters.
[26] Finally, one key consideration is the effect that the non-payment of support for a limited period of time will have on the child of the marriage. In this case, the Respondent is continuing to work and earn a six-figure income. As a result, the negative effect on the child is limited. Indeed, this was an issue that the Respondent’s materials did not respond to in any detail.
[27] Therefore, when all of these factors are balanced, it is reasonable to stay the Order of Stribopoulous J. for a period of six months and I so order.
c) Conclusion
[28] For the foregoing reasons, I conclude that a stay should be granted. However, I am also of the view that the stay should be for a limited period of time, and that this action needs to proceed to a case conference and, if necessary a motion, as soon as possible. I will address the additional steps that I am requiring the parties to take in the next section.
The Underlying Action
[29] Given the very significant difference in the amount of support payable under the Order of Stribopoulous J. and the amount that the Applicant says he should be paying at this stage, this matter requires prompt adjudication.
[30] In the course of the submissions before me, the Respondent advised that she had been told that she did not have to file her Notice of Change, even though she had been served at the end of June. I was surprised to hear this, especially since the Respondent had been able to bring a motion to set aside the Order of Andre J.
[31] However, on further investigation, it is clear that the motion to change was caught by the suspension of all limitations and filing deadlines and that the Applicant was correct in her legal and factual position. That suspension has now been lifted.
[32] I am of the view that this matter should move forward promptly. To that end, I am directing as follows:
a) The Respondent is to file her Answer by no later than October 14th, 2020.
b) The Applicant’s Reply must be served and filed by no later than October 28th, 2020.
c) The parties are to proceed to a case conference on the first available date. To that end, I have contacted the Trial Office and they are holding three dates for this case conference, being February 9th, 10th and 11th, 2021. The parties are required to advise my judicial assistant of their availability for these dates by no later than Friday, October 2nd, 2020. The case conference will be proceeding before any judge of this Court, and I am not seized.
d) At that case conference, the parties are to attend with a plan to litigate this case if it cannot be resolved. It would appear to me that this case is, at most, a short trial.
[33] Given the significant time that has passed since this Notice to Change has been filed, these deadlines are peremptory on both sides.
Conclusion
[34] For the foregoing reasons, I order as follows
a) The Order of Stribopoulous J. dated May 14th, 2019 is stayed for a period of six months from July 1st, 2020 to December 31st, 2020.
b) The Respondent is to file her Answer by no later than October 14th, 2020.
c) The Applicant’s Reply must be served and filed by no later than October 28th, 2020.
d) The parties are to proceed to a case conference on the first available date. To that end, I have contacted the Trial Office and they are holding three dates for this case conference, being February 9th, 10th and 11th, 2021. The parties are required to advise my judicial assistant of their availability for these dates by no later than Friday, October 2nd, 2020. The case conference will be proceeding before any judge of this Court, and I am not seized.
e) At that case conference, the parties are to attend with a plan to litigate this case if it cannot be resolved. It would appear to me that this case is, at most, a short trial.
f) The dates in paragraphs b, c and d are peremptory to both parties.
[35] This brings me to the subject of costs. I am of the view that the costs of this motion should be left to the judge hearing the Motion to Change. Assessing the costs in this case cannot be done until the outcome is known. Either the motion to stay the order should not have been brought, or it should not have been opposed.
LEMAY J
Released: September 30, 2020
COURT FILE NO.: FS-11-3163-00
DATE: 2020 09 30
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Tarek El Said Abdou Sabry
Applicant
- and -
Barbara Monique Loeff
Respondent
REASONS FOR JUDGMENT
LEMAY J
Released: September 30, 2020