COURT FILE NO.: FS-18-00091891-0000
DATE: 2022-09-01
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
SAIMA SAEED
Self-represented Applicant
- and -
SHERAZ KHALID
K. Deol, for the Respondent
HEARD: June 29, 2022
MOTION TO SET ASIDE COURT ORDER
Dennison J.
Introduction
[1] On February 11, 2020, after an uncontested trial, I granted Ms. Saeed, the mother (“mother”) sole custody of the parties’ two daughters. The court ordered that Mr. Khalid, the father (“father”), have supervised access with the children at the mother’s discretion. I also ordered the father pay child support for the children in the amount of $4,302 CAD per month based on an imputed income of $335,400 CAD.
[2] The father brought a motion to set aside my judgment on the basis that he was not able to attend, and the mother acted fraudulently and misled the court at the uncontested trial.
Background
[3] The background facts are set out in greater detail in my decision from the uncontested trial at 2020 ONSC 939. Briefly, the parties had a religious ceremony in 2009. The marriage certificate is dated 2012. They have two daughters, born in 2010 and 2012. The family resided in the United States for most of their marriage.
[4] The parties separated in December 2016. The parties dispute whether the mother went to Pakistan with their daughters on her own volition or at the behest of the father. Regardless, the mother and children were denied re-entry into the United States because her green card expired. There is also a dispute between the parties as to who was responsible for the expired green card. The mother eventually returned to Canada with her daughters. She stated that the father came to visit her in January 2016 and then he returned to the United States.
[5] The mother discovered that the father remarried in a religious ceremony in Pakistan in September 2016. The mother stated that she was not given notice that the father applied for and obtained a divorce in December 2016. A curator represented the mother as an absent party after notices were published in the newspaper. The mother presented emails at the uncontested trial that the father had her email address in September and October 2016.
[6] On March 27, 2018, the mother brought an application for custody of their two daughters, child support and spousal support. She served the father with the material, but he did not file an Answer. There were some correspondences between the mother’s counsel and father’s counsel. The father’s counsel stated that the father earned $60,000 but provided no documentation to support that assertion.
[7] The father was advised that the case conference would take place on January 31, 2019. The father failed to attend and he was noted in default. The court ordered the father to provide financial disclosure by February 28, 2019 that was to include:
- Contracts for the leases of gas stations he operated in person or through any corporation
- Documents of incorporation which he held an interest in
- Financial statements for the business, including revenue and expenses and profit and loss statements
- Personal and corporate income tax returns
- Employment contracts
- Bank statements for all bank accounts from January 1, 2014 to present
- All applications for credit
- Financial statement (form 13.1)
[8] On February 28, 2019, the mother’s counsel emailed the father and reminded him of all of the documents he was to provide and noted that he had not provided any documentation.
[9] Later that day, the father provided ten pieces of paper, but nothing of substance. The documents included;
- A handwritten note of his assets and debts. His assets included his home $250,000, bank account $254.31 and personal vehicle $2,000. His debts included real estate loan of $120,000 and credit card debt of $5,300.
- Handwritten list of a business which included SS ASMA LLC, lease terminated. He attached an email that stated the lease was terminated.
- SOHO Fastrip: he stated this business closed in December 2017.
- Myiesh ASMA LLC: stated that business closed.
- His letter also stated that he could not make his mortgage payments which the mother was responsible for 50%.
- He also stated he had a debt of $43,000.
- A bank statement from Chase Bank in his name from January to February 2019.
[10] The father provided no further disclosure. I heard the uncontested trial on October 7, 2019. There is no evidence that the father provided any