COURT FILE NO.: FS-21-22328
DATE: 2022-06-10
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Amna Tariq, Applicant AND: Zaid Rehman, Respondent
BEFORE: C. Horkins J.
COUNSEL: Jane Mukongolo, for the Applicant Sofia Ashraf, for the Respondent
HEARD at Toronto: May 31, 2022
REASONS FOR DECISION
Overview
[1] The respondent, Zaid Rehman (“the father”), brings a motion to set aside the final order of Justice Sharma dated January 24, 2022 (“the Sharma order”) pursuant to Family Law Rule 25(19). The Sharma order was made at an undefended trial.
[2] If relief is granted, the father seeks leave to extend the time to serve and file his Answer. The relief requested in paras. 3-5 of his notice of motion dated March 21, 2022 is withdrawn.
[3] The Sharma order provides as follows:
- The applicant, Amna Tariq (“the mother”), has sole decision-making responsibility for the two children who reside with her in Toronto and the right to travel with the children without the father’s consent.
- The father is ordered not to remove the children from Canada without the mother’s written consent or a court order.
- Based on an imputed income of $233,521, the father is ordered to pay child support of $3,079/month and 66.1% of the s. 7 expenses.
- The parties are ordered to exchange income disclosure yearly as required by the Child Support Guidelines.
- The father is ordered to pay the mother an equalization payment of $139,556.61.
- Their jointly held property at 300 Webb Drive Unit 504, Mississauga (“the Webb property”), is vested in the mother’s name, “such that the [father’s] 50% share in the property shall represent partial payment of his equalization payment obligation…leaving him with an equalization payment balance of $135,617.61”.
- The father is ordered to pay the mother the rental cash flow from the Webb property in the amount of $4,321.50.
- The father is ordered to pay the mother pre-judgment interest on the equalization payment and the rental cash flow in the amount of $2,877.56.
- The father is ordered to pay the mother costs of $25,000.
[4] The parties were married in March 2010. In July 2020, the family moved from Toronto to Pakistan. On August 25, 2020, the parties separated. The mother and children returned to Toronto on November 22, 2020. The parties are Chartered Professional accountants. The mother was a stay-at-home parent after the children were born. In November 2020, she returned to Toronto with the children to find work so she could provide for the children. The children are 8 and 6 years old.
[5] The father commenced a proceeding in Pakistan and obtained a divorce order on June 20, 2021.
Timeline of the Application
[6] The Application was issued on March 23, 2021. The father was served in person with the Application on March 24, 2021. This is confirmed in an affidavit dated March 30, 2021, from the process server. The father has never filed an Answer.
[7] The mother’s Application clearly set out the relief she requested: sole decision-making responsibility, the right to travel with the children and apply for the children’s passports and other government documents without the father’s consent, an order preventing the father from removing the children from Canada, child support and equalization. The mother’s pleading on the division of assets was detailed and clear. She pleaded that the father had intentionally or recklessly depleted their assets and she wanted an equalization payment in her favour.
[8] The Application warned the father that if he did not file his Answer within 30 days that the case would go ahead without him and the court could make orders against him and enforce such orders.
[9] From April 16, 2021 to August 25, 2021, counsel for the parties corresponded.
[10] In late May, counsel sent various emails to each other. The father wanted an hour of parenting time and wanted the parties to each pay 50% of the expenses for the Webb property. In an email dated May 25, 2021, the father’s counsel states: “my client advises that there may be a net loss upon sale of [the Webb property].”
[11] The mother’s counsel replied on May 26, 2021. In response to the request for parenting time, counsel reviewed the mother’s extensive efforts to provide the father with parenting time, the father’s lack of interest in seeing the children and his failure to cooperate in facilitating his parenting time. The mother offered parenting time if the father agreed to hire and pay for a third-party facilitator.
[12] The email states that the father had not “paid anything” for the children’s “basic necessities” when he is fully capable of doing so. This left the mother to support the children without his help since the date of separation.
[13] This email reviewed the mother’s position about their property issues and in particular the Webb property expenses. The email confirmed the fact that the father was receiving the rental payments from the Webb property and had full control of the family’s finances.
[14] The email asked the father to immediately share the Webb property rental income and pay the mother past child support of $10,899 ($1,211 for 9 months).
[15] Finally, mother’s counsel addressed the father’s failure to serve any responding materials as follows:
I note that your client has disregarded my client’s extension to file his materials by May 11, 2021. Please provide me with your client’s responding materials together with relevant disclosure so that the issues of equalization can be addressed immediately given the children’s and my client’s financial hardship which is being exacerbated by your client’s refusal to support his own children voluntarily.
[16] Mother’s counsel sent another email to the father’s counsel on June 3, 2021, that discussed the following. The mother had agreed to the father having virtual parenting time with a third party present. The father agreed to this third party, then refused to ensure that the third party was present. The father was still not paying any child support despite the mother’s needs, had not made any disclosure, and had withdrawn $10,000 from their joint bank account. The father was reminded again that he had “time and time again ignored the filing of his responding materials”.
[17] On June 20, 2021, the father commenced proceedings before the court in Pakistan to obtain a divorce.
[18] On September 7, 2021, the father’s counsel advised the mother’s counsel that he was no longer acting for the father.
[19] On September 21, 2021, the mother’s counsel served the father with the mother’s case conference brief by email. The case conference was “mutually scheduled” for October 1, 2021, at 3:30 pm
[20] On October 1, 2021, the case conference was held before Justice Lococo. The father did not attend and filed no material. The case conference proceeded without the father and the following temporary orders were made:
- The Respondent father having been provided notice in the case conference brief, temporary order to go as follows, on an interim basis:
(a) The Applicant mother shall have decision-making authority with respect to the children to the extent required to deal with service-providers and other third parties in relation to the children's medical, educational, spiritual, and other necessary needs and with respect to the issuance of government documentation in relation to the children.
(b) The Applicant will be solely responsible for management of the parties' jointly owned rental investment property at 504-300 Webb Drive, Mississauga.
(c) The Respondent shall continue to pay the expenses relating to the above rental investment property in excess of the amount of the rent received for the property.
(d) A preservation order will issue, restraining the Respondent from disposing of or otherwise depleting the Respondent's solely or jointly owned property except to incur day-to-day personal living expenses.
- Application adjourned to an uncontested trial on January 24, 2022 at 10:00 a.m. (est. 3 hours). Evidence provided in support of the application shall be by way of affidavit.
[21] A copy of Justice Lococo’s endorsement was emailed to the father by the Court and again by the mother’s counsel on October 7, 2021.
[22] The mother prepared her material for the undefended trial and served it on the father on January 12, 2022.
[23] The undefended trial proceeded before Justice Sharma on January 24, 2022.
Legal Framework
[24] The motion to set aside the order was brought pursuant to rule 25(19)(e) of the Family Law Rules, which provides that the court may, on motion, change an order that:
(e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.
[25] The test for deciding a motion to set aside a default judgment is set out in Mountain View Farms v. McQueen, 2014 ONCA 194, at paras. 48-49. There are five factors as follows:
(a) whether the motion was brought promptly after the defendant learned of the default judgment;
(b) whether there is a plausible excuse or explanation for the defendant's default in complying with the Rules;
(c) whether the facts establish that the defendant has an arguable defence on the merits.
(d) the potential prejudice to the moving party should the motion be dismissed, and the potential prejudice to the respondent should the motion be allowed; and
(e) the effect of any order the court might make on the overall integrity of the administration of justice.
[26] These factors are not rigid rules. The court must consider the facts and circumstances of each case. The Court of Appeal held, at para. 51, that the presence of an arguable defence on the merits may justify the court exercising its discretion to set aside the default judgment, even if the other factors are unsatisfied in whole or in part. The respondent need not show that the defence will inevitably succeed but must show that it has an air of reality.
[27] I will now consider these five factors to determine if the Sharma order should be set aside.
Analysis
Timeliness of the Motion to Set Aside the Sharma Order
[28] When the order of Justice Lococo was sent to the father on October 1 and again on October 7, 2021, the father was notified that the undefended trial was scheduled for January 24, 2022. On January 12, 2022, the trial record was served on the father. Once again, he was notified of the pending undefended trial.
[29] The father states that the Sharma order “came to my attention on January 26, 2022, by a mutual friend of mine and the Applicant’s, who asked me why the investment property jointly owned by the Applicant and I now belonged solely to the Applicant”.
[30] The father states that he was “confused by this question because [he] had not received any notice of any court proceedings, nor had [he] signed any documents releasing [his] interest in the property”.
[31] To state that he did not receive “any notice of any court proceedings” is false. At a minimum, he was personally served with the Application. His affidavit tries to suggest that service was not proper because he was served at his brothers-in-law’s home which is not his permanent address. The Application was properly served, and the affidavit of the process server confirms this fact.
[32] The friend who contacted the father is not identified. The father does not say if the friend called or emailed him. There is no evidence that this friend told the father about the undefended trial and/or the Sharma order. He does not say that the friend gave him a copy of the Sharma order.
[33] If, as the father states, he was unaware that an undefended trial was scheduled, this news from the friend on January 26, 2022 about the Webb property ought to have been a surprise. The father was obviously interested in the Webb property because his counsel’s email dated May 25, 2021 set out his concerns about the Webb property expenses. After receiving this news from the friend, the father did not email the mother to find out what was going on or take any other steps to find out what was going on with the Webb property.
[34] The father then states that he “eventually found a copy of the court order and additional court documents delivered to [his] spam email folder on January 26, 2022”.
[35] The father did not file this motion until March 14, 2022. He says that it took him another month to gather his evidence for the motion and that he retained counsel shortly after learning about the final order. In fact, the father learned about the order on January 26, 2022 and did not retain counsel until February 15, 2022. His counsel did not notify the mother’s counsel that he intended to bring this motion to set aside the Sharma order until March 10, 2022.
[36] Once he retained counsel, he started “gathering evidence and preparing [his] motion material”. He says that it took some time to gather his financial disclosure and obtain the letter from his therapist. He does not say when he requested the undated letter from the therapist, and it is unclear why the minimal disclosure that is attached to his first affidavit would take so long to obtain.
[37] A 1.5-month delay in bringing this motion is concerning.
[38] The father’s motion was scheduled to be heard on March 29, 2022. Justice Diamond adjourned the motion to May 31, 2022. He ordered that the mother file her responding material by April 29, 2022 and allowed the father to file a reply affidavit by May 16, 2022. Pending this motion, Justice Diamond ordered that the mother was at liberty “to rent or sell” the Webb property. Any proceeds of sale are to be held in trust and any rental income must be used to “cover the carrying costs” of the Webb property.
Plausible Explanation/ Excuse for Failure to Respond and Default in Complying with the Family Law Rules
[39] The father’s explanation is not plausible. He says that he was “completely unaware” that the mother was proceeding to an uncontested trial on January 24, 2022. The father received Justice Lococo’s endorsement by email. While he says that it went into his junk/spam email, this is not an excuse. It is his obligation to regularly check his spam or junk folder and there is no evidence that he ever did so.
[40] The evidence shows that the father was fully aware of the mother’s Application. The communications between counsel made it clear that the mother was pursuing her application and was repeatedly asking the father to file his Answer and comply with his disclosure obligations under the Family Law Rules. After he was no longer represented by counsel, it was his obligation to familiarize himself with the Family Law Rules and follow them.
[41] The father states that since he was personally served with the Application, he anticipated that he would be personally served with critical court documents if the mother took any further steps in the Application. This assumption is contrary to the Family Law Rules. Service of an order by email is permitted under Family Law Rule 6(2)(e).
[42] On December 2, 2021, the father reached out to the mother through a mutual friend and offered to settle the dispute about the Webb property. The mother refused. The fact that he sent this email confirms that he continued to be aware of the mother’s Application.
[43] The father also seeks to explain his default by saying that he was “dealing with mental health issues due to stress from events post-separation and lack of contact with the children, for which [he] sought treatment”. There are numerous problems with this explanation.
[44] To support his explanation, the father attached to his affidavit a brief undated letter from Zarmin Tariq, a “Consultant Clinical Psychologist”. This letter states that Zarmin Tariq is the father’s therapist, and that the father came to the “centre with complaints of low mood, lack of attention, sleep disturbance, feelings of helplessness and hopelessness in April 2021”. The therapist states that the father’s “mental health was continuously deteriorating… due to the mental and emotional torture by his spouse (separated)” and that the condition was “aggravated in the month of June 2021” because his children would not speak to him. He presented with “PTSD and Depression”. The therapist suggested that he not have “any contact with his spouse” so he could avoid “stress aggravating events”.
[45] Finally, the therapist states “Hence based on my recommendation, [the father] chose not to involve or indulge in anything related to his spouse, including Family Law Proceedings”. This statement is false. During the months noted by the therapist, April and June 2021, the father was represented by counsel. The father was negotiating with the mother through counsel during this time period.
[46] In fact, he had counsel until August 25, 2021. His counsel was communicating with the mother’s counsel. The father did not have to communicate with the mother and in fact ignored her. While the therapist states that the father’s mental health was deteriorating because of “emotional torture by his spouse”, there is no evidence to support this statement.
[47] As noted above, the father made an offer to settle the Webb property issue in December 2021. While he claims that he was ignoring the mother and the litigation, this offer to settle shows otherwise.
[48] The letter from the therapist is undated. It is not known when or how often he saw the father or when he was asked to write this letter. The father has not provided any evidence such as a resume or CV to show that the therapist is qualified to make such findings about his mental health. Furthermore, by attaching this letter to his own affidavit, the father is relying on hearsay and is shielding the therapist from cross-examination.
[49] Family Law Rule 14(18) states that an affidavit for use on a motion shall, as much as possible, contain only information within the personal knowledge of the person signing the affidavit. Rule 14(19) further provides that:
The affidavit may also contain information that the person learned from someone else, but only if,
(a) the source of the information is identified by name and the affidavit states that the person signing it believes the information is true; and
(b) in addition, if the motion is a contempt motion under rule 31, the information is not likely to be disputed.
[50] As the court explained in Lucreziano v. Lucreziano 2021 ONSC 4106, at para 49 Rule 14(19) allows for hearsay only in restricted conditions and there are potential issues with the admissibility of doctors’ letters that are attached to a party’s affidavit:
…In some cases, courts have rejected unsworn doctor’s letters as inadmissible because the letters contained no evidence as to the doctor’s qualifications and there was no opportunity to cross-examine the doctor. While a doctor’s letter or report will not be excluded solely because it is not in the form of an Affidavit, the Court must be satisfied of the truth of the facts contained in the letter or report: Ceho v. Ceho, 2015 ONSC 5285, Kozak v. Kozak, 2018 ONSC 690.
[51] Based on the evidence that I have reviewed, I am not satisfied the hearsay evidence of the therapist is reliable and should be accepted for the truth of its contents.
[52] The father claims he was stressed because his children would not speak to him. However, the mother agreed around March 3, 2021 to facilitate his contact with the children. For 2-3 weeks, the father never called the children. The mother sent a message to the father that the children wanted to see him and offered to drop them off and pick them up. The father never responded. The mother had the children waiting for the father’s virtual call on five occasions and he never connected.
[53] In May, the video parenting time started, and the father unilaterally removed the third-party supervisor.
[54] The father’s actions brought this parenting time to an end.
[55] In June 2021, through her counsel, the mother suggested that they attend co-parenting counseling sessions and she offered to pay. The father never replied.
[56] In June 2021, the mother learned from pictures that the father posted on social media that he was away on vacation. On June 12, 2021, the mother messaged the father directly to notify him of a health scare with their son involving COVID. He never replied.
[57] The father was in Canada for most of the first half of 2021. He participated in a cricket league. He never asked for parenting time until April 19, 2022, when his counsel presented some time that was only three days away. They could not agree on terms. The mother offered April 24, 2021 in a public place and the father did not show up.
[58] Finally on June 20, 2021, the father started his own divorce proceeding before the courts in Pakistan.
[59] Based on this evidence, the father’s mental health explanation is not plausible or credible. Nor do I accept his excuse that Justice Lococo’s endorsement went into his spam email. He was served with the mother’s case conference brief before the case conference, Justice Lococo’s endorsement (twice) and the trial record on January 12, 2022. At a minimum, he should have been checking his email including the spam email. He also should have connected with the mother’s counsel and should have taken steps to promptly cure his default.
Arguable Defence on the Merits
[60] As noted, the father need not show that the defence will inevitably succeed. He must show that he has an arguable defence on the merits that has an air of reality. He has not done so.
Equalization
[61] The equalization order was based on clear evidence. The mother filed a Net Family Property statement with proof and her affidavit that explained the items. This involved the mother’s evidence tracing the money from the sale of the matrimonial home, where this money went, the purchase of the Webb property and how it was funded.
[62] In his submissions the father states that he “suspects that the equalization amount in the Order is inaccurate”. In his affidavit he states “[w]hile I do not have all the details on how this amount was calculated, I believe this amount is grossly inflated”.
[63] The father expresses concern about the sale of the Webb property, but Justice Diamond has already ordered that the mother may sell it.
[64] The mother explained in her trial affidavit how her requested NFP payment was calculated. All the details were provided. While the father says that the equalization payment is grossly inflated, this is not supported by evidence. The mother clearly documented her NFP claim, and the order was based on this evidence.
[65] The father disputes several amounts in the mother’s NFP. As explained below, his evidence does not raise an arguable defence. More is required than self-serving statements devoid of evidence to support key assertions. Much of what he alleges does not have an air of reality.
The HBL Account
[66] In the mother’s NFP (part 4 bank accounts), she lists $36,204. This is described as the father’s sole chequing account at HBL in Pakistan. This is the value on the date of separation. The account number is included. On this motion, the father states that he does not have a HBL bank account. He relies on the financial statement that he swore for this motion. Once he obtains the disclosure from his various financial institutions, he says that he will be able to demonstrate that he did not have such account.
[67] The family returned to Pakistan in July 2020. That is where they resided on the date of separation. The father continues to live in Pakistan and as noted, has returned to Toronto for periods of time. In his financial statement, he does not list a single bank account in Pakistan, even though this is where he resides. If as he claims he does not have an HBL account in Pakistan, then he has had ample time to obtain proof from this bank.
Sale Proceeds from Matrimonial Home
[68] Under part 4(g) of the mother’s NFP, she attributes $129,477 to the father. In her evidence she explained in detail why this amount was attributed to the father.
[69] The parties sold their matrimonial home on 944 Dice Way in Milton in February 2020 before returning to Pakistan.
[70] On this motion, the father states that it is unclear to him how the mother has accounted for the funds. He says that he has requested disclosure from his financial institutions and will be able to show that he did not have the sale proceeds in his account on the date of separation.
[71] On the father’s own evidence, he was notified about the Sharma order on January 26, 2022. He has had ample time to obtain any bank records or other documents that he requires to respond to this motion.
[72] On January 26, 2022, the father says that he also found the “additional court documents” in his spam email. This means that he has had the mother’s detailed NFP statement and all other evidence since that date.
[73] His response on this motion is vague and lacks any basic corroborating evidence.
The Father’s Property in Pakistan
[74] On the date of separation, the father owned two pieces of vacant land in Pakistan. The mother’s NFP statement reflects a valuation for each property with supporting evidence.
[75] There is no dispute that the father owned these properties on the date of separation. He purchased the land from the developer called the Defence Housing Authority (DHA). In the absence of any disclosure from the father, the mother obtained the best information available. She relied on the values listed by the DHA and other real estate websites. The property in Multan was valued at $35,951 and the property in the city of Gujranwala was valued at $30,557.
[76] On this motion, the father states that the valuations are exaggerated. He says that he sold the properties shortly after separation. One was sold on September 17, 2020, and the other was sold in February 2021. The father has provided a copy of the sale agreements with exchange rates. The Multan property was sold for $15,076 and the Gujranwala property sold for $15,854.
[77] The mother states that these agreements are “inconclusive”. They do not prove that the sale occurred or the actual sale price. The documents are missing the signatures of witnesses and there are no documents to show that title was transferred. As well, the father has not provided a copy of his bank records to corroborate his receipt of sale proceeds and to show that he was paid the same amount noted in the agreements of sale. It is the mother’s evidence that in Pakistan it is common practice to understate the sale price in the agreement of purchase and sale for tax purposes.
[78] The burden of proof on this motion rests on the father. He filed a responding affidavit and could have easily attached a copy of his bank record to show that the money paid on closing was the same as the amount in the sale agreements. He says that he is not opposed to cooperating if anything is required from him about these sales.
[79] The father ought to have addressed this concern and he did not.
The Toyota Vehicle
[80] The mother’s NFP statement attributes $23,547.88 to the father for the Toyota that he owned on the date of separation. She provided proof that he owned this car on the date of separation. When she searched the car registry in Pakistan on December 24, 2021, this car was still registered under the father’s name. Her NFP includes details about the valuation of this car.
[81] The father says that he did not own the car on the date of separation and that he will “try” and obtain proof. There is no evidence other than his bald unsupported statement.
Child Support and Section 7 Expenses
[82] Justice Sharma ordered the father to pay child support based on an imputed income of $233,521. Justice Sharma states that this income is based on the [father’s] “2019 T4 showing $167,031 plus a 2019 T5 showing a dividend received by the [mother] from the [father’s] company Al-Barkat Group inc. for $66,500”.
[83] The mother filed an affidavit for the undefended trial and explained the father’s employment. Before they moved to Pakistan in July 2020, the father was employed as the Regional Director of Finance at the Dilawri Group of Companies, one of the largest dealership groups in Canada. He was the head of finance and accounting for 18 dealerships in Ontario. Before that, he was the Controller for Atlantic Group of Companies. While he worked for these companies, he also earned income from his company, Al-Barkat Group Ltd. The father used to pay the mother a dividend from Al-Barkat Group Ltd. to benefit from income splitting. The money was declared on the mother’s income tax return. The money was deposited into their joint account and used to pay family expenses.
[84] In 2019, $66,500 was paid to the mother for income splitting purposes. She did not work for Al-Barkat Group Inc. Justice Sharma was satisfied that this was a reasonable estimation of dividends that the father would have been entitled to receive from his company.
[85] The father’s imputed income of $233,521 was based on the best available documentary evidence, which was his 2019 income of $167,031.83, documented in a Notice of Assessment and a 2019 T5 issued to the mother by Al-Barkat Group Ltd.
[86] On this motion, the father states that the child support order is based on an imputed income “that has no basis in reality”.
[87] In November 2019, he states that he was laid off from his employment at Dilawri Group of Companies where [he] earned $167,031 and he did not find fulltime employment until January 2021 at Envolta Inc where he earned $73,500. His employment at Envolta was terminated without cause on March 14, 2022.
[88] In his first affidavit, the father says that if the Sharma order is not set aside, it will “devastate [him] financially”. He then found a new job. As of April 18, 2022, the father is employed with Deloitte as a manager and earns an annual salary of $120,000. His position is that he is paying child support on a higher income that he does not earn. He says he should be paying $1,716 a month. He cannot pay $3,079 a month.
[89] The father denies that he owns Al-Barkat Group Inc. and denies that he has earned income from this company. In para. 39 of his March 14, 2022 affidavit, he states:
In the endorsement dated January 24, 2022, there is a reference to a corporation by the name of Al-Barkat Group Inc., for purposes of establishing my income for support purposes. I do not own this corporation. This corporation was owned by the Applicant. While there was a T5 dividend issued to the Applicant in the amount $66,500 in 2019 from this corporation, this was never paid out and the T5 was cancelled as the corporation did not have the ability to pay the dividend.
[90] There is no air of reality to this evidence. The business registration for Al-Barkat Group Inc. states that it is owned by the father and is still active. The mother’s name is not mentioned in this corporate record. If as the father states he did not own this company, how does he know that the T5 was cancelled and where is the proof? Further, if the T5 was cancelled and the mother owned the company, why would she declare the $66,500 on her 2019 income tax return.
[91] Justice Sharma made his decision on the evidence. As the mother’s evidence explained, historically the father has had two streams of income: employment and self- employment. His company A&Z CPA Professional Corporation is still an active company. On this motion, the father has not produced corporate income tax returns for this company.
[92] Based on the above analysis, there is no air of reality to the father’s position. He does not have an arguable defence on the merits on this income issue. There was ample evidence to support the imputation of $233,521 for the father’s income effective August 1, 2020.
[93] The Sharma order was made on clear evidence of the father’s 2019 income. No mistakes were made. This was the best evidence available.
[94] The parties have been ordered to exchange updated income disclosure each year for as long as child support is payable. This is to be done within 30 days of the Sharma order dated January 24, 2022. Typically, this exchange and adjustment to Guideline child support and sharing of s. 7 expenses happens after filing income tax returns in April and no later than June 30 each year. If as the father maintains, his income has dropped, then he can address this with the mother next year and request that child support be adjusted in 2023. This, however, will require full disclosure of all income tax returns and sources of income.
Parenting Issues
[95] The Sharma order does not include parenting time for the father. The order is silent on this issue.
[96] The father stopped seeking parenting time as of June 2021. By then he had returned to Pakistan.
[97] On this motion, the father does not challenge the orders made that give the mother sole decision-making authority regarding the children who live with her. He is concerned that the order does not address parenting time.
[98] The mother states that the order is silent because there was no evidence upon which to make a parenting time order. The father had moved to Pakistan and had stopped all virtual visits with the children. For this reason, she says that there is no reason to set aside the Sharma order. If the father wishes parenting time, it should be pursued in a different court process such as a motion to change.
[99] Recently the parties have been negotiating parenting time for the father. It remains to be seen if they can reach an agreement.
[100] I agree that the issue of the father’s parenting time was not addressed at the trial. However, setting aside the Sharma order is not the solution. If the parties cannot resolve parenting time, then it will be open to the father to seek relief in this court for parenting time. It is in the best interests of the children that the father be granted leave to seek parenting time. His default in this proceeding should not prevent this issue from being decided.
[101] I have made orders to facilitate the parenting time issue.
Potential Prejudice
[102] The father states that if the Sharma order is not set aside, it will “devastate [him] financially”. As I have explained, there is no arguable defence to the Sharma order that imputed income to the father.
[103] If going forward there is a change in circumstances, a motion to change child support can be brought under s. 17 of the Divorce Act, R.S.C. 1985, c. 4 (2nd Supp.). As well, the parties are required each year to adjust support based on income.
[104] Any prejudice to the father is a direct result of his own failure to provide disclosure and participate in the process. "When a party does not participate in the process, things tend not to go well": Hilton v. Hilton, 2021 ONCA 29, at para. 10.
[105] The mother has spent significant time and money to comply with her obligations in the proceeding. She is understandably concerned that if the Sharma Order is set aside, the litigation will essentially be starting afresh. The prejudice to her supports a dismissal of the father’s motion.
Integrity of the Administration of Justice
[106] This Court has stated many times that the most basic obligations in family law are the duties to make prompt and complete financial disclosure and to comply with court Orders. If a party repeatedly fails to do so, the Court must exercise its jurisdiction to police its own case management process and protect the administration of justice as a whole: Manchanda v. Thethi, 2016 ONSC 3776, at para. 14 and Granofsky v. Lambersky, 2019 ONSC 3251, at para. 23.
[107] The father has not proven that he has an arguable defence and his excuse for his delay does not have an air of reality. Maintaining the integrity of the administration of justice favours the dismissal of the father’s motion.
Conclusion
[108] I make the following orders:
- The respondent’s motion dated March 21, 2022, is dismissed.
- If the parties cannot agree on costs, they shall exchange costs submission (15 pages maximum including bills of costs) and file them with the court by June 27, 2022.
- If the respondent wishes to seek parenting time, he shall have leave to serve and file an Answer dealing only with the issue of parenting time. Such Answer shall be served and filed in 30 days from this order. The applicant may file a reply pursuant to the Family Law Rules. If the parenting time issue is not settled within 30 days of the pleadings being exchanged, the parties shall schedule a case conference to deal with the parenting time issue.
C. Horkins J.
Date: June 10, 2022
COURT FILE NO.: FS-21-22328
DATE: 2022-06-10
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Amna Tariq Applicant
– and –
Zaid Rehman Defendant
REASONS FOR DECISION
C. Horkins J.
Released: June 10, 2022