SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Ahmed Walid Sidiqi, Applicant
AND
Hosna Ahmadzai, Respondent
BEFORE: Justice Engelking
COUNSEL: Alexei Durgali, for the Applicant
Ronald Paritzky, for the Respondent
HEARD: November 29, 2021 – December 10, 2021
REASONS for DECISION
1This is a Motion to Change the Final Order of Justice MacLeod dated July 11, 2017, brought by the Respondent Mother, Ms. Ahmadzai, seeking the following relief:
Sole decision-making authority over and primary residence of the parties’ child, Mi., born in October of 2012;
Permission to relocate the child to Richmond Hill, Ontario;
Specified parenting time for the Applicant Father, Mr. Sidiqi with Mi.; and,
Retroactive and on-going child support for Mi.
2Mr. Sidiqi seeks to maintain joint decision-making authority and shared parenting, but on a slightly revised schedule. He opposes Ms. Ahmadzai’s request for retroactive child support, and if on-going child support is ordered on a set-off basis, he seeks for income to be imputed to Ms. Ahmadzai.
3For the following reasons, there shall be an order that Ms. Ahmadzai shall have primary residence of Mi. and she shall be permitted to relocate with the child to the Greater Toronto Area. Mr. Sidiqi shall have parenting time with Mi. every second weekend as well as for six weeks over the summer, one half of Mi.’s school break at Christmas and every March Break unless agreed otherwise. No retroactive child support shall be payable, but on-going child support on a set-off basis shall be payable from the date of the MTC to June 30, 2022, based on Mr. Sidiqi’s actual annual incomes and an annual income of $40,000 imputed to Ms. Ahmadzai. Straight table child support shall be payable by Mr. Sidiqi commencing July 1, 2022, less $200 per month to account for the increased cost associated with exercising his parenting time.
Background Facts
4Both parties are from Kabul, Afghanistan. Although Ms. Ahmadzai indicates that she was born in 1992, her Afghan birth certificate states she was born in 1990. Similarly, while Mr. Sidiqi was born in 1980, his Afghan birth certificate states that he was born in 1982.
5Ms. Ahmadzai’s family came to Canada in 1996; Mr. Sidiqi’s came in 2000. Both are members of the Sunni branch of the Muslim faith.
6Ms. Ahmadzai and Mr. Sidiqi met in March of 2008 through the latter’s sister. Ms. Ahmadzai was living with her mother and brothers in Toronto and Mr. Sidiqi was living with his parents, brother and two sisters in Ottawa. According to their customs, several steps were to occur for their courtship/engagement to be consolidated. First, Mr. Sidiqi’s mother contacted Ms. Ahmadzai’s mother. Next, Mr. Sidiqi came to Ms. Ahmadzai’s family for her hand and received a “verbal yes” on April 24, 2008. Two weeks later, in May of 2008, Ms. Ahmadzai’s uncle gave an “official yes”. In other words, the parties were engaged within 2 months of meeting each other.
7Customarily, they were to be engaged for four years before a marriage ceremony would take place, for the purpose of getting to know each other and each other’s respective families. However, Ms. Ahmadzai had applied and been accepted in to the law program at Carleton University in Ottawa, and the decision was made for their engagement party to be in October of 2008 and their wedding to be in the summer of 2009 so that Ms. Ahmadzai could start school at Carleton in September of 2009. They married in a religious ceremony on July 3, 2009.
8Ms. Ahmadzai then immediately moved in with Mr. Sidiqi and his family in Ottawa, with whom she lived for approximately four years. This proved very difficult for Ms. Ahmadzai, as according to her, during their engagement she and Mr. Sidiqi had discussed living with his family for one year to save and then move into their own home.
9Ms. Ahmadzai became pregnant in January of 2012, and Mi. was born in November of 2012. Ms. Ahmadzai returned to work in February of 2013, indicating that she felt pressured by Mr. Sidiqi’s family to do so to contribute to the family’s finances.
10Ms. Ahmadzai found the environment in the home of Mr. Sidiqi’s parents to be very oppressive, and in May of 2013, when Mi. was about seven months old, she found an apartment very near by and moved out with Mi. and a garbage bag of her and Mi.’s belongings. She fully expected Mr. Sidiqi to join her, but he did not immediately do so. Rather, after three days of her and Mi. sleeping on the floor, her mother came from Toronto and fully furnished and supplied the apartment. Mr. Sidiqi did join her some days later, and they lived there together until their first separation in October of 2013.
11Ms. Ahmadzai went to live in Toronto with Mi. from November of 2013 to August of 2014. Mi. commenced daycare in Toronto in January of 2014 and Ms. Ahmadzai found her a new doctor there. Mr. Sidiqi came to Toronto two or three times over this period to visit. In February of 2014, there was an incident during which she alleged that Mr. Sidiqi’s brother, Nawid, attempted to punch her but missed. According to her, Mr. Sidiqi, his brother and mother came to see her and to tell her to stay in Ottawa and fix her marriage. Ms. Ahmadzai reported this incident to the police, not for the purpose of having Nawid charged but to have it documented.
12Mr. Sidiqi did not pay any child support to Ms. Ahmadzai during this period. Mr. Sidiqi came to Toronto in June of 2014 for his sister’s wedding and begged Ms. Ahmadzai to resume their relationship. She agreed on the conditions that there would be no interference in their marriage from his family and that they would have their own house, and in August of 2014, the parties reconciled. They moved into a home at 2235 Esprit Drive in Orleans, which Mr. Sidiqi indicated that he was buying. However, Ms. Ahmadzai later discovered that the house had been transferred into the name of Mr. Sidiqi’s brother.
13During this time, Mr. Sidiqi was working at a car dealership six days a week with only Sundays off. Upon her return to Ottawa, Ms. Ahmadzai worked at JP Morgan Chase for a time and also took classes online. Mi. attended daycare during the week.
14At the end of October of 2015, Ms. Ahmadzai spent a week in Cuba with Mi. and knew after her return that she would not remain in the relationship with Mr. Sidiqi. During this time, Mr. Sidiqi also learned that Ms. Ahmadzai had been in a relationship with her current husband, Mohammed Somji, while they were apart in 2013/14.
15In November of 2015, Ms. Ahmadzai got a job at Rogers. She intended to relocate to Toronto as soon as her training with Rogers was done, as she could work for Rogers there. Although Ms. Ahmadzai indicated that Mr. Sidiqi knew of her intentions, he shocked her with service of a court application, along with a motion requesting an order that she be prevented from relocating Mi. to Toronto. An urgent motion was held, and Ms. Ahmadzai consented to a 2/2/3 parenting schedule with Mi. and the appointment of the Office of the Children’s Lawyer (OCL) to conduct a clinical investigation. Ultimately, the parties settled the litigation that was commenced in 2016 with the Consent Order of Justice MacLeod dated July 11, 2017, which provided for joint custody (with final decision making by Ms. Ahmadzai) and a 2/2/3 parenting schedule on a permanent basis. The Order also provided that neither parent was to move Mi.’s permanent residence from Ottawa without written consent or a further court order.
16Mr. Sidiqi had moved back to his parents’ home on Jobin Crescent at the time of the original motion and Ms. Ahmadzai moved to a home owned by her mother. Ms. Ahmadzai cancelled her request with Rogers to work in Toronto and worked for them in Ottawa. Mi. was in daycare in Ottawa until September of 2016 and then started school and attended daycare before and after school.
17Although the Court Order contained a provision for the right of first refusal if one of the parents was not available to provide care during his or her parenting time, Ms. Ahmadzai and Mr. Sidiqi were getting along reasonably well between July of 2017 and December of 2018 and the schedule remained somewhat flexible, based mainly on Mr. Sidiqi’s work schedule. However, after Ms. Ahmadzai asked Mr. Sidiqi to have Mi. on Thursday evenings while she was attending school at Algonquin College and he refused, Ms. Ahmadzai began to insist on compliance with the right of first refusal contained in the Order.
18As indicated above, during her separation from Mr. Sidiqi from October of 2013 to June/July of 2014, Ms. Ahmadzai was involved in a relationship with her now husband, Mohammed Hassan Somji. Ms. Ahmadzai has known Mr. Somji since she was 13 years old, as he was/is a friend of her older brother. They started communicating in October of 2013 and began a relationship. In June of 2014, after Ms. Ahmadzai made the decision to reconcile with Mr. Sidiqi, Mr. Somji was very hurt, and they did not reconnect again until late 2015. Mr. Somji came to live in Ottawa for most of 2016, during which period he drove for UBER and did a couple of construction jobs.
19Mr. Somji returned to work at his father’s importation and distribution company, Five Star Enterprise of Canada Ltd., in the GTA in or around late 2016, and it is the intention of both him and his father that he take over the business someday. He and Ms. Ahmadzai entered a “Mutah” or verbal marriage in October of 2017, and a “Nikah” or official marriage in March of 2019. Their first child together, Ma., was born in July of 2019. At the time of the trial, they were expecting their second child, with a due date of March 10, 2022.
20Mr. Somji lives in the home of his parents in Richmond Hill, Ontario during the week but spends his weekends in Ottawa with Ms. Ahmadzai and the children at 346 Sweetclover Way, a home Mr. Somji and Ms. Ahmadzai are in the process of buying from Ms. Ahmadzai’s mother. Mr. Somji is very involved with the care of both girls (and presumably now the new baby) when he is home with them.
21If Ms. Ahmadzai is permitted to relocate Mi. to the GTA, the home on Sweetclover Way will be sold. Ms. Ahmadzai and Mr. Somji’s plan is to live in the five-bedroom Somji family home in Richmond Hill. Mr. Somji’s parents intend to leave the home at some point soon and move, along with their one daughter remaining at home, to a smaller place with less upkeep. Ms. Ahmadzai wants to be permitted to move to Richmond Hill with Mi. to live as a family with Mr. Somji, Ma. and their new child.
22Mr. Sidiqi continues to live in the home of his parents in Ottawa, along with one of his sisters and her young son. He seeks to have Mi. remain in Ottawa and to continue to have shared parenting of her.
Updated Report of the OCL dated October 26, 2020
23The parties agreed to an update being conducted by the OCL, which, of course, had been involved in the 2016 litigation.
24The update was completed by Kristina Dunin, who has a Master of Social Work and has been a social work clinician for 16 years. She has been doing assessments for the OCL for over seven years.
25Ms. Dunin met with the parents several times, interviewed Mi., conducted observations in each parent’s home and included information from collaterals. She held a disclosure meeting with the parents and their counsel on September 24, 2020 and released her report on October 26, 2020.1
26With respect to Mi.’s “Familial Relationships”, Ms. Dunin indicated at page 14 of her report:
Mi. stated that she is treated lik a “princess” in both of her parent’s households. Mi. appears to have a supportive, positive relationship with both her mother and her father. Mi. has indicated that her parents are the most important people in her life and she loves them both. Mr. Sidiqi and Ms Ahmadzai indicated that Mi’s best interest is their primary concern and her well-being and happiness ar their main focus. Both parents also discussed a desire to achieve an amicable relationship with each other.
During the observation visits, Mr. appeared to have a close relationship with both her mother and her father. Mi. was observed to interact positively and affectionately with her parents. Mi. actively engaged with her parents and it was apparent that she enjoys spending time with them. She appeared at ease and comfortable in their presence and was the centre of attention in both households. Both parents interacted with Mi. in a loving, supportive, affectionate manner and Mi. appeared to eagerly welcome the attention given to her by her mother and her father. During the observation visits, Mi. also exhibited a positive relationship with her paternal family members as well as her stepfather.
27Regarding Mi.’s views and preferences, Ms. Dunin indicated the Mi. “remained consistent in her view that she would like to move to Toronto with her mother”.2 While she found that Mi.’s request to move to Toronto was “reasonable and sounded independent, and sincere”3, she was of the view that Mi.’s expectations about how moving to Toronto may affect her were not realistic. Ms. Dunin stated: “It appears that Mi. has formed an idealistic viewpoint of moving to Toronto and may not truly appreciate the reality of moving to a new city and away from her immediate family members.”4
28Ms. Dunin indicated that Mi.’s secondary request, if she could not move to Toronto, would be to have primary residence with her mother, which desire Ms. Dunin found was the “result of her own independent experiences.”5 The current access schedule of 2/2/3 is not working for Mi.; she feels confused leaving school as to whose home she is going and/or who is picking her up. Ms. Dunin indicated: “She expressed a clear preference to have her mother’s home as her primary residence and it appeared that Mi. felt more comfortable in the care of her mother.”
29Regarding her time with Mr. Sidiqi, Mi. stated to Ms. Dunin that she “barely” saw Mr. Sidiqi during his parenting time, and that she is cared for by her grandmother. At the time of her clinical investigation, Mr. Sidiqi had recently changed his employment and Ms. Dunin stated: “It is hopeful that with this change of employment Mr. Sidiqi will be able to increase the amount of time he spends with Mi. when she is in his care.”
30Ms. Dunin made the following recommendations:
That Ms. Ahmadzai have sole custody (decision-making authority);
That neither parent be permitted to relocate Mi. without the consent of the other parent;
That Mi. have her primary residence with Ms. Ahmadzai and parenting time with Mr. Sidiqi every second weekend from Friday after school to Monday at school and every Wednesday evening to Thursday morning;
That transfers occur as much as possible at school and that the parents use an on-line communication tool;
That the parents not expose Mi. to conflict or adult discussions; and,
That Mi. receive counselling support to assist her with any distressing emotions arising from her exposure to the custody matter or conflict.
Material Change of Circumstances
31Ms. Ahmadzai filed her Motion to Change in April of 2019. There is little doubt that there had been a material change in circumstances by that date from the date of the July 2017 Final Order.
32First, in October of 2017, Ms. Ahmadzai became betrothed to Mr. Somji, who was by that time back working for his father in Toronto. They married via a religious ceremony in March of 2019.
33Second, Mr. Somji and Ms. Ahmadzai had a child together in July of 2019. They have since had a second child together. Mi. has two siblings who have a father, along with another family, to whom they are connected in the GTA. The evidence established that Mi. is very connected to Ma. and there is no reason to think she would not be as connected to the new child.
34Mr. Sidiqi argues that nothing changed, in that Ms. Ahmadzai was already in a relationship with Mr. Somji when the July 17, 2017, Order was made. Mr. Somji traveled from Toronto to Ottawa at the time to be with Ms. Ahmadzai and Mi. and he continues to do so to be with her and the children to this day. However, the evidence also established that Mr. Somji’ s work requires him to be in Toronto on a fulltime basis, and it is not unreasonable for the couple to want to reside together with the children as a family fulltime. I find that Ms. Ahmadzai’s circumstances have significantly changed since she consented to the Final Order of July 11, 2017.
Relocation
35The parties’ respective claims have been pled pursuant to the Children’s Law Reform Act, R.S.O. 1990, c.C.12, as am. and the Family Law Act, R.S.O. 1990, c.F.3, as am. Section 39.4 of the recently amended Children’s Law Reform Act governs a situation where a person intends to relocate a child and it provides:
Authorization of relocation
39.4 (1) In this section, “family arbitration award” has the same meaning as in the Arbitration Act, 1991.
Same
(2) A person who has given notice of a proposed relocation in accordance with section 39.3 and who intends to relocate a child may do so as of the date referred to in the notice if,
(a) The relocation is authorized by a court; or
(b) No objection to the relocation is made in accordance with subsection 39.3(5) and there is no order prohibiting the relocation.
Best Interests of the child
(3) In determining whether to authorize the relocation of a child, the court shall take into account the best interests of the child in accordance with section 24, as well as,
(a) The reasons for the relocation;
(b) The impact of the relocation on the child;
(c) The amount of time spent with the child by each person who has parenting time or is an applicant for a parenting order with respect to the child, and the level of involvement in the child’s life of each of those persons;
(d) Whether the person who intends to relocate the child has complied with any applicable notice requirement under section 39.3 and any applicable Act, regulation, order, family arbitration award and agreement;
(e) The existence of an order, family arbitration award or agreement that specifies the geographic area in which the child is to reside;
(f) The reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of decision-making responsibility, parenting time or contact, taking into consideration, among other things, the location of the new residence and the travel expenses; and
(g) whether each person who has decision-making responsibility or parenting time or is an applicant for a parenting order with respect to the child has complied with their obligations under any applicable Act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance.
Factor not to be considered
(4) In determining whether to authorize a relocation of the child, the court shall not consider whether, if the child’s relocation were to be prohibited, the person who intends to relocate the child would relocate without the child or not relocate.
Burden of proof
(5) If the parties to the proceeding substantially comply with an order, family arbitration award or agreement that provides that a child spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interest of the child.
Same
(6) If the parties to the proceeding substantially comply with an order, family arbitration award or agreement that provides that a child spend the vast majority of time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interest of the child.
Same
(7) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interest of the child.
Burden of proof, exception
(8) If an order referred to in subsection (5) or (6) is an interim order, the court may determine that the subsection does not apply.
Costs of relocation
(9) If a court authorizes the relocation of a child, it may provide for the apportionment of costs relating to the exercise of parenting time by a person who is not relocating between that person and the person who is relocating the child.
36Ms. Ahmadzai effectively gave notice of her intention to relocate Mi. via her Motion to Change, which predated the amendments to the CLRA. Given the shared parenting in effect, however, pursuant to Section 39.4(5) of the now amended CLRA, the burden of proving that the relocation would be in the best interests of Mi. belongs to Ms. Ahmadzai.
(a) Reasons for the Relocation
37As indicated, the reason for the requested relocation is because Ms. Ahmadzai wants to live as a family unit with her husband and three children in the GTA, where Mr. Somji is required to be for his work.
38Ms. Ahmadzai moved to Ottawa from Toronto to wed Mr. Sidiqi. Her mother, her two brothers and her father all live in Toronto. Her elder brother, who has physical disabilities, lives with her mother. Her younger brother is finishing university and will also live in Toronto upon its completion. Her father, from whom her mother has been divorced for many years, has mental health issues and lives in a supported living environment in Toronto. Her stepfather is a psychiatrist, with whom her mother went to medical school in Afghanistan; he currently lives in Edmonton but is relocating to join his wife in Toronto. Ms. Ahmadzai is close to all of them. Mi. is also very close to her maternal grandmother.
39Ms. Ahmadzai and Mi. are also close to Mr. Somji’s family in Toronto. This includes Ms. Ahmadzai’s parents-in-law and her sister-in-law, who also reside in the family home in Richmond Hill. Another sister lives abroad but is closely connected to her family in Toronto.
40Ms. Ahmadzai has no ties to Ottawa. She is not currently employed, nor has she been since approximately 2018. She is entirely dependent on Mr. Somji, who provides for the family. Both Mr. Somji and his father, Muslim Somji, testified as to the nature of his employment and the requirement that he be present in Toronto to fulfill it. Muslim Somji describes Mr. Somji as his “right-hand-man”, who is currently responsible for taking care of 80-90% of the business. Muslim Somji is in the process of retiring and he fully expects that Mr. Somji will take over the business from him.
41But for Mi.’s father and paternal family being in Ottawa, and the existing Court Order, Ms. Ahmadzai would have no reason to be here.
42Ms. Ahmadzai has also been accepted into a two-year program at the University of Ontario, after which she hopes to become a teacher.
43Ms. Ahmadzai’s plan is to live with Mr. Somji and the children in the Richmond Hill home owned by his parents, and to place Mi. in a nearby school, Adrian Clarkson, in a French immersion program. It is also to involve Mi. in the Islamic community at the nearby Jafari Community Centre, which runs many programs for children and conducts many celebrations for the community. Ms. Ahmadzai supports Mr. Sidiqi having frequent and protracted parenting time whenever possible. She is, additionally, prepared to assist with any transportation required to make his parenting time possible.
(b) The Impact of the Relocation on the Child
44The biggest impact of the proposed relocation on Mi. would, of course, be to her relationship with her father and paternal family members. Mi. spends a great deal of time with her paternal grandmother, as well as her aunts and with her cousin who also lives in the home. Mr. Sidiqi indicates that the family speaks English and Dari in the home. As such, Mi. benefits form hearing the Dari language. The family also belongs to the Sunni branch of Islam, and although Ms. Ahmadzai is also Sunni, Mr. Somji’s family are Shia. Mr. Sidiqi worries that Mi.’s exposure to the Dari language and to Sunni Islam will be impacted by any lessening of his parenting time.
45Additionally, Mi. has always attended school in Ottawa. She has friends from school and in each of her parents’ neighbourhoods, and Mr. Sidiqi submits that a change of school will impact Mi., as will the loss of her existing friendships.
46Ms. Dunin explored this latter issue with Mi., and while she was clearly happy at her current school, Mi. also expressed being happy to attend a school in Toronto (Richmond Hill) and thought she could both maintain relationships with her current friends when visiting Ottawa and make new friends in Toronto. Ms. Ahmadzai also thinks that Mi. will easily make new friends and will seamlessly be able to integrate into a new school. She is noted by all adults involved to be a bright, capable and friendly child. I do not see that a change to a new school to be particularly difficult for Mi., especially as it will occur at the beginning of a new school year, if she moves to Toronto. At her age, and with her personality and capacity, I would anticipate that Mi. could smoothly make the transition.
47The bigger issues are the loss of exposure to the Dari language and to Sunni Islam. However, as I have indicated, Ms. Ahmadzai proposes frequent and protracted parenting of Mi. with Mr. Sidiqi, and, while not as frequently as it currently occurs, her exposure can continue through his parenting time. Additionally, her father can continue to assist her in her Islamic studies, either in person or virtually.
(c) Time Spent With a Child by Each Parent
48This is perhaps the most significant factor which persuades me that a relocation to Toronto by Mi. is in her best interests. Ms. Ahmadzai submitted, and was able to demonstrate through her use of calendars outlining parenting time, her own observations and those of others, that Mr. Sidiqi spent a great deal of his shared parenting time at work. Mr. Sidiqi admitted that he often had evening shifts and was at times required to work one day of the weekend. However, he disputed that he did not spend significant time with Mi. or suggested that such claim is exaggerated. Interestingly, Mr. Sidiqi indicated that he was not working for a period of several months early in the pandemic; however, this did not change Mi.’s impression of the time he spent with her, even though the OCL investigation was conducted over this period and the report was released in October of 2020.6
49Mr. Sidiqi indicated that he has since changed jobs (as of the fall of 2021) to that of a real estate agent and will now have more flexibility and more time to spend with Mi. It is, of course, unknown if he has actually done so since the conclusion of the trial, but from the date of separation until at least the late fall of 2021, Mi. clearly spent most of her time while “with” Mr. Sidiqi in the care of her paternal grandmother and/or her paternal aunt. There is undoubtedly great value to this, particularly in traditional or collective cultures. However, while Mr. Sidiqi has a very warm and positive relationship with Mi., the degree to which he has spent time with her is not particularly expansive.
50In relation to her interview with Mi., Ms. Dunin noted in her report at page 11:
Mi. stated that her father is not usually home when she is at his house and she is usually with her grandparents. Mi. stated that she does not really see her father when she is staying at his home. She explained that her father is mostly at work and her grandmother looks after her. She explained that she only sees her father in the mornings when she wakes up and then he leaves the home and comes home late at night. Mi. stated that when her father is home he is also on the phone a lot. Mi. would like to spend more time with her father when she is at his home.
51At page 12, Ms. Dunin notes that while describing her paternal grandfather yelling at her paternal grandmother, Mi. incidated that “her father is not there and usually at work”.
52At page 13, while ascertaining Mi.’s views and preferences, Ms. Dunin noted:
Mi. stated that the main reason she would like to go to Toronto is to spend more time with her stepfather as her stepfather spends more time with her than her father. Mi. stated that she would not miss her father or extended paternal family if she moved to Toronto. Mi. stated that she barely sees her father now so “how will I miss him”. (Emphasis added).
53Further on page 13, Ms. Dunin noted: “Mi. stated that she would like to live primarily with her mother because her father does not spend time with her or comes home late, her grandfather yells in the home and she gets confused about which home she is going to after school.” (Emphasis added).
54On page 14, while discussing Mi.’s views and preferences, Ms. Dunin indicated:
Regarding moving away from her father, Mi. indicated that while she loves her father, she was not concerned as she “barely” sees her father now. Mi. stated that when she is supposed to be with her father he is largely absent from the family home and it is her grandmother who cares for her. Mi. stated that she could see her father during holidays or during the summer and indicated that her mother said she could contact her father whenever she would like.
55Regardless of whether it is entirely accurate or not, it is significant, in my view, that Mi. has the impression that she spends more time with Mr. Somji than she does with Mr. Sidiqi, when Mr. Somji usually only comes on weekends, and she is subject to a shared parenting regime with Mr. Sidiqi. It is equally significant that Mi.’s preference would be to be in the primary care of her mother and not in the existing shared parenting regime, even if she is to remain in Ottawa.
56On paper, Mr. Sidiqi and Ms. Ahmadzai have a shared parenting regime. In reality, however, I find that Mr. Sidiqi’s mother has been Mi.’s primary parent while in the care of Mr. Sidiqi.
(d) Applicable Notice Requirement
57This factor is not relevant, given that Ms. Ahmadzai’s MTC predates the amendments to the CLRA regarding notice.
(e) Existence of Order
58As indicated, there is an order in existence which prevents Mi. from relocating from the jurisdiction of Ottawa absent consent or a further court order. Indeed, it is this Final Order of July 11, 2017, which Ms. Ahmadzai seeks to change. The existence of this Order renders the onus hers. As I have stated above, I am of the view that Ms. Ahmadzai has been able to demonstrate that there has been a material change in circumstances affecting the child since the Order was made. I am also of the view that Ms. Ahmadzai has met the onus of demonstrating that it is in the best interests of Mi. to relocate to Toronto with her and the two other children to live as a family with Mr. Somji.
59First, it is Mi.’s expressed view and preference that she do so. While Ms. Dunin was concerned that Mi. “may not have realistic expectations about moving to Toronto or how this may affect her”, I do not share that concern. I do not find that Mi.’s viewpoint is idealistic. On the contrary, she knows that she will leave her school and friends, and that she will have to go to a new school and make new friends. She also knows that she will be apart from her father and her paternal family; however, she wishes to live primarily with her mother in any event, even if it is in Ottawa. She does not spend the kind of time with her father currently that would warrant preventing her from living primarily with her mother, be it in Ottawa or Toronto. By this time, Mi. is extremely familiar with what her situation in Toronto would be. She visits the Somji home frequently during Ms. Ahmadzai’s parenting time with her; she knows her maternal grandmother very well, and looks forward to spending time with her, including by visiting her pool. Mi. is aware that she will be visiting with her father, her grandparents, her aunts and her cousin, and she is, in my view, realistic about that.
60Mr. Sidiqi’s position is that Mi. has been alienated from him or unduly influenced by Ms. Ahmadzai, however, this is not born out by the evidence. Undoubtedly, Mi. has been influenced by Ms. Ahmadzai’s desire and her positive portrayal of a life in Toronto, but I see no evidence which would support that Mi. has been pressured to take a position about that by Ms. Ahmadzai or Mr. Somji. On the contrary, some evidence was led that Mi. has been negatively influenced about the move by one of her paternal aunts. Nevertheless, Ms. Dunin felt that Mi.’s views were independent and genuine. I have not been convinced otherwise.
61Second, Ms. Ahmadzai has made a reasonable proposal for Mr. Sidiqi’s continued parenting time, more about which I will speak below.
62Third, it is clear from the evidence that while the parties currently share decision-making authority, Ms. Ahmadzai has been the parent most involved in Mi.’s care, be that educational, medical, emotional or social. Ms. Ahmadzai arranged for Mi.’s daycare, communicates regularly with her school authorities, and arranges and takes Mi. to medical and dental appointments. While Mr. Sidiqi did at times participate in appointments for Mi., he did not really dispute this evidence. Indeed, Mr. Sidiqi appeared in his evidence to be quite content for Ms. Ahmadzai to be the main protagonist in meeting Mi’s such needs.
(f) Reasonableness of the Proposal to Relocate
63Ms. Ahmadzai’s proposal for Mr. Sidiqi’s parenting time, should she move to Toronto, includes every second weekend in Ottawa, with the transportation to be shared, much of the summer, a majority of Mi.’s time off from school at Christmas, and all March Breaks. Mr. Sidiqi would also be welcome to have Mi. anytime he is in Toronto, with minimal or even same-day notice. With respect to transportation, Ms. Ahmadzai proposes that the exchange take place at an agreed upon point approximately halfway between Toronto and Ottawa, though she and Mr. Somji would also be willing to bring Mi. to Ottawa, if necessary, from time to time. Ms. Ahmadzai submits that if Mr. Sidiqi actually spent the time proposed with Mi., it would amount to more than he does now in a shared parenting regime. I find that Ms. Ahmadzai’s proposal is beyond reasonable and her commitment to ensure that Mr. Sidiqi continues to play a major role in Mi.’s life genuine.
(g) Compliance with Obligations
64Ms. Ahmadzai submits that Mr. Sidiqi has failed to comply with his obligations in three areas: 1) to pay child support for Mi.; 2) to follow the right of first refusal for care of Mi. in the July 2017 Order; and 3) to consent to counselling for Mi.
65With respect to the second one, I have already concluded that Mr. Sidiqi’s mother was Mi.’s primary caregiver during most of the Mr. Sidiqi’s parenting time, and I do not intend to revisit that issue. Paragraphs 11 and 12 of Justice MacLeod’s Order provide:
Mi. shall be permitted to continue in a relationship wither paternal grandparents. The paternal grandparents shall be allowed to exercise access if the Applicant is unavailable to care for Mi. during his scheduled time, subject to Paragraph 12 below.
Notwithstanding Paragraph 11, if a parent with whom Mi. is scheduled to be according to the schedule cannot care for her for a period longer than 2 (two) consecutive hours, that parent shall notify the other party and give the other party the opportunity to do so.
66Given my above findings, and notwithstanding Ms. Ahmadzai’s requests after December of 2018, there is little doubt that Mr. Sidiqi did not comply with Paragraph 12 of the Final Order. Had he done so, Mi. would have spent little parenting time indeed with Mr. Sidiqi.
67Regarding consent to counselling, Ms. Ahmadzai submitted that Mr. Sidiqi did not comply with the recommendations of Mi.’s family physician nor with the CAS to have her participate in counselling to assist her with the issues of her parent’ separation and conflict. However, there was no court order requiring him to do so, and as a parent, he was under no legal obligation to agree to counselling, if he did not think it was necessary or would be of benefit to Mi. In any event, the issue is moot, because by the time of the trial, Mi. was engaged in counselling with the consent and participation of both her parents.
68With respect to the issue of child support, every parent is under a legal obligation to contribute to the support of his or her child.
69Paragraph 18 of the July 11, 2017, Order of Justice MacLeod provides:
- The Applicant shall pay child support to the Respondent in the monthly amount of $400.00, commencing May 1, 2017. This amount is more than the Table amount of child support to reflect the Respondent’s greater living costs, and the fact that the Applicant resides with his parents, and as a consequence, his cost of living is significantly less than that of the Respondent.
70Pursuant to Paragraph 20, section 7 contributions were to be proportional to income so long as child support was being paid. If no child support was being paid, the parents were to share such expenses on a 50/50 basis. Ms. Ahmadzai was to annually provide Mr. Sidiqi proof of the cost of after-school care, net of tax credits and subsidies, which he was to pay as per Paragraph 20 of the Order. The parties were to exchange income information annually by June 1 and adjust child support as of July 1, if warranted.
71Paragraph 24 of the Order provides that: “In addition to a yearly review, either party may seek a change in child support if there is a material change in the condition, means, needs or other circumstances of the Applicant, the Respondent, or Mi., that would affect child support.” If they were unable to resolve any dispute over child support, they were to attempt to do so “via the dispute resolution provisions found below”, however no such provisions are found below in the Final Order.
72Mr. Sidiqi paid child support of $400 per month to Ms. Ahmadzai until January of 2018, after which he stopped. Ms. Ahmadzai did not agree with Mr. Sidiqi stopping to pay child support. In a text message exchange, which she identified as taking place on January 29, 2018, Mr. Sidiqi stated in response to her suggestion that the Family Responsibility Office would “come to you”: “Sure. I will wait for them to call me cause as per court papers it clearly says that I am helping u cause u r alone and I am with family and u put that condition saying u need help cause u have no body here but now as u said last time that u don’t need the help anymore cause u r with that guy back s”.
73In response to a request of Ms. Ahmadzai, Mr. Sidiqi sent an email to her dated June 21, 2018, as follows:
Hi, Hosna.
As per our conversation on the phone, I am sending you this email regarding Exchange of notice of assessment for child tax purposes. As we agreed that we don’t need to do this as we will not be giving any kind of child support now and in future. It doesn’t matter how much you make or I make as an income we will never ask for child support. I think this is what you wanted me to email you and if you want to make any changes please do so.
Walid Sidiqi
74Ms. Ahmadzai’s evidence is that she did not respond to this email as she didn’t agree with it and instead, she contacted the Family Responsibility Office, only to come to understand that the Final Order had not be registered with FRO, as pursuant to Paragraph 19 of the Order, Mr. Sidiqi was to pay Ms. Ahmadzai directly.
75Ms. Ahmadzai states that from February 2018 to April 2019, when she filed her MTC, Mr. Sidiqi missed 15 months of payment of $400 per month for a total of $6000. In her MTC, Ms. Ahmadzai seeks to have child support arrears for that period fixed at $6000. She also seeks to have table child support payable on a go forward basis.
76Mr. Sidiqi evidence is that he and Ms. Ahmadzai agreed in June of 2018 that neither required child support from the other and his email of June 21, 2018, was to confirm this. He stated that Ms. Ahmadzai was, in fact, making almost double of what he was making at that time ($40,000 to $45,000 versus his $25,000), and on a straight set-off method, child support would have been payable by her to him. He indicated that child support was then not an issue until Ms. Ahmadzai filed her MTC in April of 2019. Mr. Sidiqi claims, additionally, that in the shared parenting regime they have had since the 2017 Order, the court must consider changes to the needs, means and circumstances of the child and the parents. His position is that after Ms. Ahmadzai became dependent on Mr. Somji, her means and Mi.’s needs were very well attended to and set-off child support was neither required nor warranted.
77While it is clear that Mr. Sidiqi did not comply with Paragraph 18 of the Final Order of Justice MacLeod dated July 11, 2017, after January of 2018, it is less clear as to whether he ought to have, particularly after June of 2018. I accept his evidence that his email of June 21, 2018, reflected an agreement reached by the parties. My reason for preferring his evidence over that of Ms. Ahmadzai in this regard is because it makes sense based on her income being higher than his at the time and based on the 2/2/3 parenting schedule. Additionally, Ms. Ahmadzai does not appear to have further pursued this issue prior to filing her MTC.
Subsection 24(3) Best Interest Factors
78As indicated, in the case of a relocation request, I am instructed by subsection 39.4 (3) of the Children’ Law Reform Act to consider both the best interests factors outlined therein as well as those outlined in subsection 24(3) of the Act, which are:
(a) The child’s needs, given the child’s age and stage of development, such as the child’s need for stability.
(b) The nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life.
(c) Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent.
(d) The history of care of the child.
(e) The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained.
(f) The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage.
(g) Any plans for the child’s care.
(h) The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child.
(i) The ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child.
(j) Any family violence and its impact on a person’s ability to meet the child’s needs or the appropriateness of an order which would require cooperation.
(k) Any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.
79Most, if not all, of these factors have been attended to above. Thankfully, (j) is not a factor in this case, nor is (k).
80Both of these parents are willing and able to meet the needs of Mi. They are also capable of communicating and co-operating on matters affecting the child. Indeed, when left to their own devices, Mr. Sidiqi and Ms. Ahmadzai seem to do well in terms of making decisions for Mi. overall. They simply do not agree on Ms. Ahmadzai’s proposed plan to move to Toronto with Mi. However, they have been able to make decisions together about her education and medical/dental care since separation, even if Ms. Ahmadzai may have been more involved in the executions of those decisions than Mr. Sidiqi. In my view, there has been no material change in circumstances which would cause me to vary the existing decision-making authority for Mi.
81Mr. Sidiqi does not dispute that Ms. Ahmadzai is very good at meeting Mi.’s needs. His issue it that he sees Ms. Ahmadzai as highly manipulative in her efforts to obtain her stated goal of being able to move to Toronto with Mi. In her manipulation, Mr. Sidiqi includes her involvement of the CAS and the police at different times in their relationship. In particular, he submits that it is very telling that Ms. Ahmadzai involved those entities only when there has been an active application before the court, namely between January of 2016 and July of 2017 and again since April of 2019.
82I accept that Ms. Ahmadzai has made reports to the CAS and to the police which at times appear to have been intended to assist her in her quest. However, they have not been of such assistance. In fact, in the case of the CAS at least, they may have had the opposite effect. While they cannot be ignored or condoned, they also cannot detract the court from its paramount obligation, which is to determine what outcome is in the best interests of Mi.
83As I have indicated, Mi., whose views and preferences can be ascertained, and have been noted by Ms. Dunin to be genuine and independent, wishes to move to Toronto with her mother and live with her siblings and stepfather as a family unit. Those views and preferences must be given weight appropriate to Mi.’s age and level of maturity. I have already stated that I do not find her expectations in this regard to be unrealistic.
84Both Ms. Ahmadzai and Mr. Sidiqi are capable of and willing to support the development and maintenance of Mi.’s relationship with the other parent and have done so since separation. At certain times, this has occurred more seamlessly than at others, but it has always occurred. Ms. Ahmadzai has a proposed plan for Mr. Sidiqi to continue to have frequent and protracted parenting time with Mr. Sidiqi, which I find to be reasonable.
85With respect to Mi.’s cultural, linguistic and religious upbringing, both parents are Sunni Muslims, and both bear the responsibility to ensure Mi. is exposed to her religion accordingly. Mr. Sidiqi indicated that he participates in major festivals within the Muslim community six or seven times a year, and that he assisted Mi. in her teachings regarding the Koran, which were virtual at the time. As I have stated, he may continue to do so virtually, if he wishes. He may also coordinate with Ms. Ahmadzai to have Mi. in his care for some, if not all, of the religious occasions which are important to him. Ms. Ahmadzai, for her part, intends to have Mi. participate in programming and celebrations at the local Islamic Community Centre in Richmond Hill, which caters to all sects of Islam. Additionally, although Mr. Sidiqi speaks to Mi. in English, she will continue to be exposed to and hear Dari while in the care of her father in her grandparents’ home.
86For all the reasons stated, I find that it is in Mi.’s best interests to be in the primary care of her mother, Ms. Ahmadzai, and to relocate with her to Toronto so that she can live as a family unit with her siblings and stepfather. It is also in her best interests that Mi. have frequent and protracted parenting time with her father, Mr. Sidiqi, through whom she can also maintain her relationships with her paternal family members.
Child Support
87In her MTC, Ms. Ahmadzai has made a claim for retroactive and on-going child support. As I have indicated, she seeks to have child support arrears payable by Mr. Sidiqi for the period of February 2018 to April 2019 fixed at $6000. She additionally seeks an order for child support from the time of her MTC and for on-going child support based on Mi. being in her primary care.
88Mr. Sidiqi’s position is that no child support should be payable, either retroactively or during the shared parenting regime. He submits that in the very least, a Contino analysis would be required to determine what Mi.’s needs are, and that Ms. Ahmadzai has not provided the information or disclosure necessary to properly determine those, including information at to Mr. Somji’s means and contributions or a budget for Mi. In the alternative, Mr. Sidiqi’s position is that if child support is payable on a set-off basis, then an income of $50,000 should be imputed to Ms. Ahmadzai.
89I have indicated above that I believe that the parties did agree in June of 2018 that no child support would be payable for Mi.at that time. While it is trite to say that a party is not free to waive child support as it belongs to the child and not the parent, the parties were in a shared parenting arrangement, Ms. Ahmadzai’s income was higher that Mr. Sidiqi’s the previous year, and Ms. Ahmadzai had indeed recoupled such that her means and Mi.’s needs and circumstances had changed. I do not propose to revisit that agreement up to the date of Ms. Ahmadzai’s MTC. However, at the point that Ms. Ahmadzai served and filed her MTC, a new claim for child support was being made.
90It is also trite to state that every parent has a responsibility to support his or her children to the extent that they are capable.
91Mr. Sidiqi’s income in 2018 was $63,349; Ms. Ahmadzai’s was $14,500.
92In 2019, Mr. Sidiqi’s income was $101,159 (as it included some capital gains); Ms. Ahmadzai’s was zero.
93In 2020, Mr. Sidiqi’s income was $91,108.12 (it also included capital gains of $22,291); Ms. Ahmadzai’s was zero. Mr. Sidiqi’s employment income, including commissions, was $78,470.
94The court did not receive complete income information for 2021 up to the time of trial, however, his final paystub from Barrhaven Mazda, at which he ceased to work in September of 2021, indicated his year-to-date income as of September 15, 2021, to be 38,147.49. Mr. Sidiqi obtained his Real Estate licence in 2021 and became an independent contractor with Remax as of July 26, 2021. He was not able to provide income information from September 15 to the date of the trial. I, therefore, rely on his previous year’s employment income of $78,470. However, Mr. Sidiqi will be required to provide his 2021 Income Tax Return and Notice of Assessment to Ms. Ahmadzai and to adjust his child support payments for 2022 accordingly.
95Ms. Ahmadzai was last employed in July of 2018. From September to May of 2019, she attended school. In July of 2019, she gave birth to her second child and remained as a stay-at-home mother supported by Mr. Somji thereafter. Ms. Ahmadzai gave birth to her third child in March of 2022. Her income for the last year in which she was employed fulltime (2017) was $45.617.
96Section 3(1) of the Federal Child Support Guidelines provides that “the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought”, along with possible section 7 contributions, is the “presumptive rule”. Section 9 provides that in a shared custody situation, the amount of child support ordered should take into account the applicable table amounts, the increased cost of shared custody arrangements, and the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.
97Mr. Sidiqi benefits from living in his extended family’s household, and I heard no evidence about any increased cost to him of the shared custody arrangement. It is, additionally, true that any proper Contino analysis would require more information. However, it would be required from both parties in this case, given the shared parenting arrangement and Mr. Sidiqi’s living arrangement. For example, in addition to understanding Mr. Somji’ s contribution to Mi.’s circumstances while in the care of Ms. Ahmadzai, the court would also need to understand the contributions of the additional income earning members of Mr. Sidiqi’s household. I do not have that information, and so I default to the presumptive rule. I can, in fact, see no basis to deviate from it.
98Mr. Sidiqi seeks to have income of $50,000 imputed to Ms. Ahmadzai for the years in question because she made $45,000 in the last year in which she was employed fulltime.
99Section 19 of the Ontario Child Support Guidelines, o. Reg. 391\97, as am. [“Guidelines”] provides that the court may impute such amount of income to a spouse as it considers appropriate in the circumstances, including where it appears income has been diverted or a spouse has failed to provide income information when under a legal obligation to do so.
100In Smith v. Smith (2012), [2012 CarswellOnt 3113] Justice Chappel outlined the relevant factors for determining whether to impute income as follows:
(a) The onus is on the party seeking to impute income to establish an evidentiary basis upon which to establish that the other party is intentionally unemployed or underemployed;
(b) It is not necessary to establish bad faith or an attempt to thwart support obligations before imputing income. A payor is intentionally underemployed if they earn less than they are capable of earning having regard for all of the circumstances. In determining whether to impute income on this basis, the court must consider what is reasonable in the circumstances. The factors that the court should consider include the age, education, skills and health of the party, the party’s past earning history and the amount of income the party could reasonably earn if they had worked to capacity;
(c) There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their dependents;
(d) The court will not excuse a party from their support obligations or reduce these obligations where the party has persisted in un-remunerative employment, or where they have pursued unrealistic or unproductive career aspirations. A self -induced reduction of income is not a basis upon which to avoid or reduce support payments;
(e) If a party chooses to pursue self-employment, the court will examine whether this choice was a reasonable one in all of the circumstances and may impute an income if it determines that the decision was not appropriate having regard for the parties support obligations;
(f) Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them; and,
(g) The amount of income that the court imputes to a party is a matter of discretion. The only limitation on the discretion of the court in this regard is that there must be some basis in the evidence for the amount that the court has chosen to impute.” (See Meissner v. Meissner, 2013 ONSC 5621, paragraph 37).
101Ms. Ahmadzai has chosen to be a stay-at-home parent. She has been fortunate to have the support of Mr. Somji to do so. While there have been periods where Ms. Ahmadzai would be unemployed to meet the needs of a child, if she worked prior to having the child, she would be entitled to some benefits and therefore in receipt of some income. It is, additionally, not incumbent on Mr. Sidiqi to subsidize Ms. Ahmadzai’s non-employment due to children that are not his. Nor is he required to subsidize her choice of going to school. I, therefore, find it reasonable to impute income to Ms. Ahmadzai, but I would do so taking into account maternity leaves and/or a reduced ability to work fulltime because of the needs of the children. I, therefore, find that it is reasonable to impute an annual income of $40,000 to Ms. Ahmadzai for the years 2018 onwards.
Order
102For all of the reasons given, there shall be a final order as follows:
a. Paragraph 1 of the Final Order of Justice MacLeod dated July 11, 2017, is varied by removing subparagraphs a) and b);
b. Paragraph 7 of the Final Order of Justice MacLeod dated July 11, 2017, is varied to indicate: The Respondent shall have primary residence of Mi. and she shall be permitted to relocate to the Greater Toronto Area with the child;
c. Subparagraphs a) and b) shall be replaced with: The Applicant shall have parenting time as follows:
i. Every second weekend in Ottawa, Ontario, from Friday to Sunday, to be extended on Thursday or Monday, should it fall on a PD Day or holiday;
ii. For a minimum of six weeks in the summer, with the weeks to be agreed upon by the parties;
iii. For a minimum of one half of Mi’s school vacation at Christmas, the dates to be agreed upon by the parties;
iv. For every March Break, unless otherwise consented to in writing by the Applicant;
v. Transportation to be shared between the parties by the parent or their designate either meeting at an agreed upon location half way between Ottawa and Toronto, or by each driving one way;
vi. On any occasion that the Applicant wishes to visit with Mi. in Toronto on reasonable notice to the Respondent; and,
vii. Frequent and liberal telephone or video visits as agreed upon by the parties.
d. Paragraph 9, subparagraphs a), d), g) and h) of the Final Order of Justice MacLeod dated July 11, 2017, are deleted.
e. Paragraph 11 of the Final Order of Justice MacLeod dated July 11, 2017, shall be varied to read: Mi. shall be permitted to continue a relationship with her paternal grandparents during the Applicant’s parenting time.
f. Paragraph 12 of the Final Order of Justice MacLeod dated July 11, 2017, is deleted.
g. Paragraph 13 and 14 of the Final Order of Justice MacLeod dated July 11, 2017, are deleted.
h. Paragraph 18 is varied to read as follows:
i. Commencing May 1, 2019, Mr. Sidiqi shall pay to Ms. Ahmadzai $588 per month on an annual income of $63,300, and Ms. Ahmadzai shall pay to Mr. Sidiqi $359 per month on an annual income of $40,000, the result being that Mr. Sidiqi shall pay to Ms. Ahmadzai $229 per month. Outstanding child support payable by Mr. Sidiqi for 2019 is $1832 ($229 x 8);
ii. Commencing January 1, 2020, Mr. Sidiqi shall pay to Ms. Ahmadzai $922 per month on an annual income of $101,100, and Ms. Ahmadzai shall pay to Mr. Sidiqi $359 per month on an annual income of $40,000, the result being that Mr. Sidiqi shall pay to Ms. Ahmadzai $563 per month. Outstanding child support payable by Mr. Sidiqi for 2020 is $6756 ($563 x 12);
iii. Commencing January 1, 2021, Mr. Sidiqi shall pay to Ms. Ahmadzai $841 per month on an annual income of $91,100, and Ms. Ahmadzai shall pay to Mr. Sidiqi $359 per month on an annual income of $40,000, the result being that Mr. Sidiqi shall pay to Ms. Ahmadzai $482 per month. Outstanding child support payable by Mr. Sidiqi for 2021 is $5784 ($482 x 12);
iv. Commencing January 1, 2022, Mr. Sidiqi shall pay to Ms. Ahmadzai $731 per month on an annual income of $78,400, and Ms. Ahmadzai shall pay to Mr. Sidiqi $359 per month on an annual income of $40,000, the result being that Mr. Sidiqi shall pay to Ms. Ahmadzai $372 per month. Outstanding child support payable by Mr. Sidiqi from January 1 to June 30, 2022 is $2,232 ($372 x 6);
v. Commencing July 1, 2022, Mr. Sidiqi shall pay to Ms. Ahmadzai the FCSG table amount $731 per month for one child on an annual income of $78,400, less $200 for the increased cost of exercising his parenting time. He shall, therefore, pay Ms. Ahmadzai $531 per month in support of Mi.;
vi. Mr. Sidiqi shall forthwith provide Ms. Ahmadzai with his ITR and Notice of Assessment for 2021 and adjust his set-off child support payments for January to June, 2021 and his table amount of support commencing in July of 2021 accordingly.
vii. For the purposes of section 7 contributions pursuant to the Final Order of Justice MacLeod dated July 11, 2017, Ms. Ahmadzai’s income for future years shall be the higher of an imputed income of $40,000 or her actual income.
i. The remainder of the Final Order of Justice MacLeod dated July 11, 2017, shall remain in full force and effect, unless the parties agree in writing to any further deviation therefrom.
Costs
103If the parties are unable to agree on costs, I will accept written submissions not exceeding three (3) pages (double spaced, 12-point font), in addition to Bill of Costs and Offers to Settle, in accordance with the following timelines:
The Respondent Mother to serve and file her submissions by July 15, 2022;
The Applicant Father to serve and file his submissions by July 29, 2022; and,
The Respondent Mother to serve and file her reply, if any, by August 5, 2022.
COURT FILE NO.: FC-16-83-1
DATE: 2022/06/28
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Ahmed Walid Sidiqi, Applicant
AND
Hosna Ahmadzai, Respondent
BEFORE: Justice Engelking
COUNSEL: Alexei Durgali, for the Applicant
Ronald Paritzky, for the Respondent
REASONS FOR DECISION
Engelking J.
Released: June 28, 2022