Overview

[1] The applicant brings a motion for interim child support, among other grounds of relief.

[2] The respondent asks that the motion be adjourned or, if the motion proceeds, that the relief sought by the applicant be denied.

[3] For the reasons that follow, I allow the applicant's motion to proceed, but decline to order interim child support. Instead, I direct that the parties complete certain tasks before attending at an urgent case conference.

Facts

[4] The parties are an unmarried couple who dated in the summer of 2020. The applicant alleges that she became pregnant with the parties’ child on September 14, 2020 when, contrary to her wishes, the parties had unprotected sex. The applicant gave birth to a child born on May 21, 2021.

[5] The paternity of the child is at issue as the respondent claims that the child may not be his.

[6] The respondent, who is in Canada on a visitor's visa, was charged criminally in respect of the unprotected sex and his criminal charges are pending. His criminal trial is scheduled for August 31, 2022. He states that, as a result of his visitor's visa and criminal charges, he is unable to work in any capacity in Canada and has no source of income.

[7] The applicant denies the respondent's claim of impecuniosity and alleges that the respondent has earned or is earning income "under the table" and was living a lifestyle consistent with a high income. She submits that the respondent should pay her $1,000 a month in child support based on an imputed income of $120,000 a year ($10,000 a month) since $10,000 is what the respondent was paid for a small job when the parties met.

Discussion

[8] The respondent asks that the motion be adjourned for the following reasons:

(a) His counsel, Mercedes Ibghi, was not able to attend on the motion, he advised the applicant of this, but the applicant proceeded with the motion anyway.

(b) The paternity of the child should be confirmed as belonging to the respondent before the support motion proceeds.

(c) The motion should be delayed until the respondent has had a fair opportunity to put together his financial information and provide it to the applicant.

(d) Proceeding with the motion as scheduled would not benefit any party as the respondent does not have a source of income given his visitor status in Canada, and the pending criminal charges.

[9] The applicant disagrees with adjourning and submits that she has had to chase down the respondent who initially "fled" the country to the United States, only to return to Canada and be arrested. Then, while she provided a number of dates for the hearing of the motion, the respondent continued to resist the motion being heard. Finally, the applicant submits that the child support motion is urgent as she is unable to work while she cares for the child and she has no source of income whatsoever.

[10] The adjournment request is dismissed. While it appears that the motion date was chosen without much consideration for Ms. Ibghi's schedule, it is also true that a number of dates were provided by applicant's counsel, and no date appeared satisfactory. It does not appear that Ms. Ibghi proposed an alternative date. Further, it appears, based on the limited motion material, that the respondent may be trying to defer the hearing of the motion to evade his child support responsibilities, if any.

[11] Once I ruled that the applicant's motion was proceeding, the next stumbling block was that both parties claimed that they did not have the funds to pay for a paternity test, which costs approximately $300. I directed the parties to pause the proceeding to see if they could resolve the matter without my ruling and, following the pause, the parties advised me that the respondent was prepared to pay for the costs of the paternity test, subject to him being refunded if the results indicate that he is not the child's father.

[12] The parties then proceeded to argue the merits of the applicant's interim child support motion.

[13] The applicant argues that:

(a) The respondent was not cooperative after she advised him that he is the father of the child.

(b) Upon seeking legal advice, the applicant realized that what had transpired between them was a crime and she reported the matter to the police who eventually pressed criminal charges against the respondent.

(d) The respondent consents to the applicant having sole decision making responsibility for the child but does not want to pay child support.

(e) The respondent has not provided full disclosure. The applicant believes that the respondent has significant income since he drives a very expensive truck that was registered to him, and his second last known address was a very high end condo in a brand new building.

(f) The respondent was paid $10,000 for a small job under the table at the time the parties met.

(g) She is 100% certain that the respondent is the father of the child including for the reason that the child's appearance resembles that of the respondent.

[14] In terms of the urgency for support, the applicant deposes that "I am in desperate need. I lack funds to purchase baby formula and cannot work while I care for our baby."

[15] The applicant claims that "[the respondent] is living a luxurious life while his own child lacks food."

[16] The respondent did not provide a responding affidavit in his own name in response to the applicant's support motion. Instead, the respondent filed an affidavit from a law clerk in his lawyer's office to explain the adjournment request, and to advise that the respondent's disclosure is being prepared. As well, the respondent filed a 14B motion seeking to adjourn the applicant's support motion to a date following the determination of paternity for the child. In his 14B motion, the respondent also sought leave of the court to serve and file his financial statement without his Notices of Assessment (NOAs) for the past three years, as he has not been resident in Canada that long.

Decision

[17] I find that it is premature to consider the applicant's support motion.

[18] First, logically, and given that only a week of further delay may be involved, the support motion should await the results of a paternity test.

[19] Second, even assuming that the respondent is the father of the child, I find that it is ill advised to base temporary support on the applicant's impressions of the respondent's lifestyle. This is particularly true when the alternative is to base the support ruling on the respondent's sworn financial information, which the respondent claims will be ready in approximately two weeks.

[20] In response to the alleged urgency of a court order, applicant’s counsel confirmed that the child is not going hungry and is being well cared for by the mother. In response to my query as to whether the circumstances warranted the involvement of the Children’s Aid Society, both parties submitted that the real issue is financial support for the child, and that the child is not in any kind of danger. The parties also agreed that the issue of CAS involvement can be discussed at the urgent Case Conference.

Order

[21] An Order shall go as follows:

(a) The respondent’s request that the applicant’s motion be adjourned is dismissed.

(b) The parties shall complete a paternity test by end of day on May 18, 2022.

(c) The respondent shall pay for the paternity test, however he shall be fully reimbursed if the results indicate that he is not the father of the child.

(d) The respondent is granted leave for late filing and service of his pleadings without this NOAs as he has not been present in Canada for the last 3 years.

(e) The parties shall exchange Requests for Information (RFI) by May 18, 2022 and such RFIs shall be answered by May 27, 2022.

(f) The parties shall attend an Urgent Case Conference on May 31, 2022 at 12:00 p.m.

(g) The timelines under the Family Law Rules for filing materials for Case Conferences shall be abridged, if necessary.

(h) Cost of the motion shall be determined by the Case Conference Judge or the next motion judge.

Pinto J.

Released: May 20, 2022

COURT FILE NO.: FS-21-25910

DATE: 20220520

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Samantha Irene Hays

Applicant

– and –

Jonathan Roberto Garza Melendez

Respondent

REASONS FOR DECISION

Pinto J.

Released: May 20, 2022

Hays v. Melendez , 2022 ONSC 3052

Case Summary

Overview

Facts

Discussion

Decision

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues