COURT FILE NO.: FS-20-00020853-0000
DATE: 20221123
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Gail M. Jones
Applicant
– and –
Ahsan Iqbal
Respondent
Cheryl A. Hodgkin, for the Applicant
No one appearing for the Respondent
HEARD: November 18, 2022
JUDGMENT
BONDY J.
A. OVERVIEW
1) Introduction
[1] This is a judgment and reasons for judgment after hearing two special motions brought by the applicant mother.
[2] The respondent father who is self-represented did not appear. He had actual notice of the hearing date through the endorsement of Howard J. dated September 23, 2022, and again from trial coordination by email. At my request, trial coordination called the respondent’s phone number and sent an email when the motion was to be heard. The phone call was unanswered, and trial coordination left a voicemail which was not responded to. Similarly, the email was not responded to.
[3] I found this to be part of an overall pattern of the respondent frustrating this process, and accordingly proceeded in his absence. The conduct of the respondent is more fully canvassed below.
[4] A summary of the most prominent substantive relief sought by the applicant mother in the motions filed February 8, 2022, and September 13, 2022, includes amendment of the application, primary parenting time, sole decision-making, a lump-sum, ongoing, and retroactive child support, section 7 expenses, and security for those expenses.
[5] Counsel for the Office of the Children’s Lawyer (“OCL”) was present but did not make submissions or submit evidence.
2) Background information
[6] The applicant, Gail M. Jones (“Ms. Jones” or “the applicant”) is 51 years of age. The respondent Ahsan Iqbal (“Mr. Iqbal” or “the respondent”) is 58 years of age. They began living together in March 2000 and separated in March 2010. They have one child, April Mehak Joan Iqbal (“April”), born April 20, 2005.
[7] The issues between the parties were originally resolved by a separation agreement signed in May 2013 (“the agreement”). That agreement provided for “joint shared custody” on an alternate weekly basis. The agreement also made the following provisions regarding child support at section 17 of that document:
Given the sharing arrangement between the parties in the incomes of the parties there shall be no child support payable and each party shall pay for their own child care expenses and each party shall pay equally the cost of the child’s activities, and school supplies and costs.
[8] The parties more or less followed that arrangement until September 14, 2020, when the then 16 ½ year old April decided to move in with her mother full time. She has had little or no contact with her father since that time.
3) The respondent father’s position
[9] The respondent’s materials filed in support of this motion do not address the issue of parenting time. The respondent has not filed a Form35.1 or a 35.1A affidavit pursuant to the Family Law Rules, O. Reg. 114/99 (“Family Law Rules”).
[10] As for child support, one of the respondent’s two affidavits sworn September 19, 2022 states: “I do not owe the applicant any child support as per the separation agreement.” The affidavit also states that full financial disclosure was given prior to entering into the separation agreement, and accordingly, the respondent does not have any further obligation in that regard.
[11] In other words, it is the respondent’s position that child support is the applicant mother’s right and she bargained it away in the separation agreement, and that the purported release of child support by the applicant ended the respondent’s obligation to make financial disclosure.
[12] Finally, the respondent maintains that the court is without jurisdiction to hear this matter because it ought to have been constituted as a motion to change a final order or agreement pursuant to r. 15 of the Family Law Rules.
[13] For the reasons that follow, I reject all the propositions put forth by the respondent. I also found it appropriate to grant much but not all the relief requested by the applicant.
B. ANALYSIS
1) Does the court have jurisdiction to hear the motion as constituted?
[14] I conclude that the court does have jurisdiction for the following reasons.
[15] The application of r. 15 is limited on its face to a “final order” or “an agreement for support” filed under s. 35 of the Family Law Act, R.S.O. 1990, c F.3 (“Family Law Act”).
[16] Section 35 of the Family Law Act provides that a domestic contract may be filed with the clerk of the Ontario Court of Justice or of the Family Court of the Superior Court of Justice, and that upon doing so it can essentially be enforced as if it were a court order.
[17] There was nothing in the materials before me to suggest that anyone filed the agreement with the court. There was also no evidence of any other final court order. As a result, I conclude that the provisions of r. 15 do not apply, and that the application and motion are properly constituted.
2) The request to amend the application
[18] The respondent father refused to consent to an order to amend the application.
[19] Rule 11(3) of the Family Law Rules provides as follows:
Amending application or answer with court’s permission
On motion, the court shall give permission to a party to amend an application, answer or reply, unless the amendment would disadvantage another party in a way for which costs or an adjournment could not compensate.
[20] The respondent maintains that he will be disadvantaged by the requested amendments because they will allow the applicant to float court orders and the separation agreement which will change the outcome of the case in the applicant’s favour. With the greatest of respect, that is not the kind of disadvantage that the rule is directed at. There was nothing in the materials before me to suggest that the respondent would be disadvantaged in the manner anticipated by the rule in a way for which costs for an adjournment could not compensate.
[21] Rather, as said, I found the respondent father’s refusal to consent to the amendment part of an overall strategy designed to frustrate the court system. I also found it appropriate to amend the application for the following reasons.
[22] The original application sought only orders regarding parenting time. The dynamics between the parties have however significantly shifted since that time in ways that could not have been reasonably anticipated at the time of the original application. There is no way that applicant’s counsel could have anticipated the unreasonable positions taken by the respondent father as to child support and financial disclosure. That is why the applicant seeks to amend the application.
[23] In conclusion, the additional relief requested includes without limitation financial disclosure, arrears of ongoing child support and section 7 expenses, and security for payment for those amounts. That relief is all intended to ensure that the respondent father honours his obligations as to child support and accordingly, as a result, I find appropriate.
3) Parenting time
[24] I reiterate that April has lived with her mother since September 14, 2020 and has had little contact with her father since that time. April appears to be thriving in this environment. There is nothing in the record before me to suggest otherwise.
[25] April is now 17½ years of age and seems to be a mature 17½ year old. Accordingly, I gave a great deal of weight to her decision to move in with her mother full time.
[26] According to the applicant, the OCL “supported parenting time to be consistent with April’s wishes.” Again, there was no evidence before me to suggest that assertion was not true. On the other hand, this was hearsay. The evidence was given weight in accordance with those observations. Said another way, I would have benefited by an affidavit from someone at the OCL with knowledge of the situation.
[27] Finally, I reiterate the respondent father failed to file a Form 35.1 affidavit (and a Form 35.1A affidavit if applicable).
[28] The respondent father does not dispute that April has decided to live with her mother. However, he takes the position that as a result of that decision, April “has withdrawn from parental control under s. 65 of the Children’s Law Reform Act”. The respondent asserts that as a result of that withdrawal, he has no further obligation for child support or financial disclosure. With the greatest of respect, withdrawal from parental control requires withdrawal from the control of both parents and not just one.
[29] In summary, the record before me strongly supports parenting time with the applicant mother and does little to support parenting time with the respondent father. Further, I am without jurisdiction to grant parenting time to the respondent father given his failure to comply with the provisions of r. 35.1 of the Family Law Rules. It seems to me that if the respondent father was truly interested in parenting time with his daughter, he would have filed the necessary forms in that regard.
[30] Consequently, I find it appropriate that April’s parenting time be with her mother, and that no order be made regarding parenting time with the respondent father at this time.
4) Decision-making
[31] For the reasons immediately above, I find it appropriate that the applicant mother be April’s sole decision maker.
5) Is the separation agreement a bar to child support and financial disclosure?
[32] I reiterate, the father takes the position that the separation agreement is a binding document in which the applicant mother bargained away her child support entitlement and any right to future financial disclosure.
[33] I disagree with those propositions.
[34] The law is well established that child support is the right of the child and not the parent seeking support on behalf of the child: see Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269 (“Kerr”), at para. 208; D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231 (“D.B.S.”), at para. 131; s. 33(7)(a) of the Family Law Act. It follows that the entitlement to child support is “automatic”: see Kerr, at para. 208. In other words, it should be a child’s certainty that the support they are entitled to will not be wrongly withheld as it is in the present case: see D.B.S., at para. 167. It again follows that separation agreements should receive no deference where the right of the child to support has purportedly been compromised: see C.(N.) v. S.(E.), 2014 NBQB 272, [2014] N.B.J. No. 327, at para. 27.
[35] In addition, s.56(1.1) of the Family Law Act, provides as follows:
Contracts subject to child support guidelines
In the determination of a matter respecting the support of a child, the court may disregard any provision of a domestic contract pertaining to the matter where the provision is unreasonable having regard to the child support guidelines, as well as to any other provision relating to support of the child in the contract.
[36] In conclusion, the existence of a separation agreement is not a bar to the child receiving support.
[37] Further, I find this case particularly egregious.
[38] The respondent father has not only withheld child support, but persistently and continuously frustrated the process by failing to provide financial disclosure as is required by s. 21(2) of the Child Support Guidelines, O. Reg 391/97 (“Child Support Guidelines”). In his affidavit sworn September 19, 2022, the respondent defiantly states “there is no court order compelling me to give financial disclosure” in reference to a motion for financial disclosure from the respondent’s employer.
[39] Even presuming for a moment that the respondent held an honest but mistaken belief that there was no obligation to make financial disclosure, the endorsement of Howard J., dated September 23, 2022, makes that obligation abundantly clear. Howard J. explained that the obligation to make financial disclosure in this case arises in the context of the current application and not the separation agreement. He also reminded the respondent that “the courts have repeatedly said that the obligation to make financial disclosure is one of the most basic obligations in family proceedings.”
[40] Howard J. then made an order for financial disclosure.
[41] Although the respondent ultimately prepared a financial statement dated October 4, 2022, he failed to file it with the court. He served a copy of it on counsel for the applicant who included it with her motion confirmation. As a result, it was before the court during the special motions.
[42] The cover letter to the applicant’s counsel was also filed with that document and causes me concern. It reads as follows:
Please find attached below the Financial Disclosure unlawfully ordered by Justice Paul Howard. Justice Howard’s ruling on 23 Sep 2022, does not comply with the Family Law Act and the Family Law Rules. I am being forced against the Laws of Ontario to supply you with my private and personal information as is my workplace. There is a legally binding Separation Agreement in place which is being ignored by the court due to your client’s position in the City of Windsor and her connections with the Judiciary and I am asking the authorities to investigate the Superior Court in Windsor due to the overwhelming evidence of bias in this matter.
[43] In other words, the respondent expresses a continuing belief that he has no obligation to support his child or to provide up-to-date financial information from time to time. The impact of this belief on these proceedings is further considered below.
6) What are the incomes of the parties for child support purposes?
a) The applicant’s income
[44] For reasons that were not entirely clear, the applicant failed to file an up-to-date financial statement prior to the motion date as is required by r. 13(12.2)(3).
[45] The applicant’s financial statements disclosed her line 15000 income for 2020 and 2021. There was no information for 2022. As a result, I found it appropriate to impute her 2021 income for 2022. I find her income during the relevant timeframe was as follows:
i. 2020 - $106,925 (per notice of assessment) ii. 2021 - $112,855.41 (per paystub) iii. 2022 - $112,855.41 (imputed)
b) The respondent’s income
[46] The applicant’s financial statements disclosed his line 15000 income for 2020 and 2021. Although his financial statement included pay stubs for 2022, they were unreadable. As a result, I also found it appropriate to impute his 2021 income for 2022. I find his income during the relevant timeframe was as follows:
i. 2020 - $88,209 (per notice of assessment) ii. 2021 - $94,997 (per notice of assessment) iii. 2022 - $94,997 (imputed)
[47] As of the date of the hearing, it was not clear whether the respondent continues to work or whether he is no longer employed, and if so, whether that is as a result of him leaving the country. The respondent has that information but failed to share it with the court. In these unique circumstances, I find it appropriate to continue to impute income of $94,997 per year to the respondent going forward.
c) Conclusions as to the incomes of the parties
[48] In summary, I find the incomes of the parties during the relevant time frame to be as follows:
| Year | Applicant’s Income | Respondent’s Income |
|---|---|---|
| 2020 | $106,925 | $88,209 |
| 2021 | $112,855.41 | $94,997 |
| 2022 | $112,855.41 | $94,997 |
7) Arrears of child support
[49] April began to reside exclusively with the applicant as of September 14, 2020. It follows that child support ought to have been paid from then until now. I calculate that to be 25.5 months up to and including October 31, 2022.
[50] I find the arrears of child support to be as follows:
| Year | Income | Monthly guideline support | Number of months | Total arrears |
|---|---|---|---|---|
| 2020 | $88,209 | $820 | 3.5 | $ 2,870 |
| 2021 | $94,997 | $871 | 12 | $10,452 |
| 2022 | $94,997 | $871 | 10 | $ 8,710 |
| Total | $22,032 |
[51] In summary, I find that the arrears of child support are $22,032 as of October 31, 2022.
8) Ongoing child support
[52] The Child Support Guidelines provide that child support for a payor with annual income of $94,997 and one child is $871 per month. Consequently, I find ongoing child support payable by the respondent at $871 per month commencing November 1, 2022.
9) Arrears of section 7 expenses
a) What are the allowable section 7 expenses?
[53] The only past section 7 expenses which were quantified in the applicant’s materials are those for April’s counselling appointments. They are as follows:
- 2020 – $1,500
- 2021 – $3,500
- 2022 – $1,100 (there was no evidence of any payments between September 10, 2022 and the date of the hearing).
b) In what proportion should those expenses be shared?
[54] Section 7 expenses are to be shared by the parents or spouses in proportion to their respective incomes: see s. 7(2) of the Child Support Guidelines.
[55] I calculate the proportionate shares as follows for each of the relevant years:
| Year | Applicant’s Income | Respondent’s Income | Applicant’s share of s. 7’s | Respondent’s share of s. 7’s |
|---|---|---|---|---|
| 2020 | $106,925 | $88,209 | 55% | 45% |
| 2021 | $112,855.41 | $94,997 | 55% | 45% |
| 2022 | $112,855.41 | $94,997 | 55% | 45% |
c) What are the arrears owing by the respondent up to and including October 31, 2022?
[56] I reiterate that the child is entitled to section 7 expenses for counselling for the 25.5 months up to and including October 31, 2022.
| Year | Counselling expense | Respondent’s share | Respondents’ arrears |
|---|---|---|---|
| 2020 | $1,500 | 45% | $ 675 |
| 2021 | $3,500 | 45% | $1,575 |
| 2022 | $1,100 | 45% | $ 495 |
| Total | $2,745 |
[57] In summary, I find the total arrears of section 7 expenses are $2,745 as of October 31, 2022.
10) Ongoing section 7 expenses
a) What are the allowable section 7 expenses?
[58] I have no difficulty with the applicant’s request that April’s counselling expenses of $100 per session be shared by the parties in accordance with their respective incomes.
[59] I also have no difficulty with the usual section 7 expenses such as medical, dental etc., being shared by the parties going forward.
b) In what proportion should future section 7 expenses be shared?
[60] For the reasons above, I find the respondent’s share of those expenses to be 45 percent going forward.
11) Should an order be made for lump sum retroactive and ongoing child support and section 7 expenses?
a) Introduction
[61] The jurisdiction to award lump-sum support payments is found at s. 34 of the Family Law Act. That jurisdiction is, however, subject to some limitations.
[62] For example, lump sum orders are available for retroactive child support: see Taillon v. Taillon, [2005] O.J. No. 1116 (S.C.) (QL), 2005 CanLII 8688 (ON SC).
[63] On the other hand, there are some limitations to order lump sum support pursuant to s. 11 of the Child Support Guidelines for children under 18 years of age. That is because of the presumptive rule under s. 3(1) of the Child Support Guidelines which provides for monthly payments according to the applicable table. One exception to that general limitation is where there is a history of non-payment in cases such as this. I reiterate that the respondent has never paid any child support and has deliberately and persistently refused to provide the statutorily required financial disclosure: see Duhnych v. Duhnych (2004), 2004 CanLII 11777 (ON SC), 4 R.F.L. (6th) 278 (ON SC), at paras. 59 and 60; Valenti v. Valenti (1996), 1996 CanLII 8082 (ON SC), O.J. No. 522 (S.C.), at para. 65.
[64] There is also jurisdiction for a lump sum order for ongoing child support for a child over the age of majority because those orders are made pursuant to s. 3(2)(b) of the Child Support Guidelines which permit the court some discretion: see Finlay v. Finlay, 2004 NBQB 138, [2004] N.B.J. No. 448 (QL) (“Finlay”); Hillock v. Hillock Estate (2001), 2001 CanLII 28148 (ON SC), 21 R.F.L. (5th) 295, [2001] O.J. No. 3837 (S.C.) (QL) (“Hillock”).
[65] As to section 7 expenses, there is jurisdiction to make a lump sum order for children under the age of majority: see C.L.C v. J.C.W., 2005 BCSC 1495, [2005] B.C.J. No. 2353; Burnett v. Burnett (1999), 1999 CanLII 14996 (ON SC), 50 R.F.L. (4th) 223, [1999] O.J. No. 3063 (S.C.); Willie v. Willie, 2000 SKQB 482, [2000] S.J. No. 750 (Q.B.). There is also jurisdiction for a lump sum order for section 7 expenses for a child over the age of majority pursuant to s. 3(2)(b) of the Child Support Guidelines: see Finlay; Hillock.
b) Conclusions as to a lump sum for retroactive child support and section 7 up to and including October 31, 2022
[66] Given the respondent’s history of a failure to pay any child support whatsoever, I find it appropriate to exercise my jurisdiction to order lump sum payments for retroactive child support and retroactive section 7 expenses that I have found owing up to and including October 31, 2022.
c) Conclusions as to a lump sum for ongoing child support and section 7 expenses from November 1, 2022 onwards
i. Introduction
[67] I similarly find it appropriate to make a lump sum order regarding some but not all the ongoing child support and section 7 expenses going forward, but only until April 2023 when April turns 18 years of age.
[68] Prior to discussing amounts, I find it necessary to state that I am aware that the present value of future section 7 expenses should generally be established with the aid of actuarial evidence: see Scorgie v. Scorgie, [2006] O.J. No. 225 (S.C.) (QL). I am also aware that the applicant has not provided any such actuarial evidence. That said, given the short time frame between now and April’s 18th birthday, I find the potential cost of actuarial evidence disproportionate to any discount that may result from such evidence and, accordingly, I found it appropriate to proceed without that evidence.
ii. Ongoing child support
[69] As to ongoing child support, I find it appropriate to make an order for child support which will be incurred between November 1, 2022, and April 20, 2023, when April turns 18 years of age. That is because those amounts are quantifiable, and it is more likely than not that they will be incurred. I calculate that to be 5.66 months at $871 per month, or $4,929.86 total.
[70] However, I have some difficulty providing a lump sum payment for child support beyond April 20, 2023. That is because of the frailty of evidence regarding April’s intentions as to post-secondary education. In other words, it is not clear on the record before me that April will attend post-secondary education and accordingly continue to be entitled to child support or section 7 expenses after her birthday. The frailty of that evidence is discussed both immediately below and further below.
iii. Ongoing section 7 expenses
[71] As to April’s continued counselling, I also find it appropriate to make an order between now and the child’s 18th birthday next April, but not beyond that for the same reasons.
[72] As to the quantum for future counselling, 2021 was the only full year for which I was given information. In that year, April attended 35 sessions over 52 weeks. That is an average of about three sessions or about $300 per month. Based on the record before me, I find it more likely than not that those expenses will continue at that rate into the future. I calculate the respondent’s share of the counselling expenses to be 45 percent of $300 per month for 5.66 months, or $764.10 total.
[73] As to post-secondary education, I reiterate the evidence as to April’s intentions is quite frail. In addition, there is no evidence at all as to the cost of post-secondary education. It follows that even assuming April does attend post-secondary education, I am unable to ascertain what the education costs would be, and whether they would exceed the RESP’s currently available to her on the record before me. While an order for sharing of those expenses would be appropriate if incurred, any lump sum payment at this time would be speculative. This issue is more fully considered below.
[74] As to any ongoing section 7 expenses other than counselling and postsecondary education, I was not given any meaningful evidence to suggest any will be incurred in the foreseeable future. Again, while I find an order for those expenses if incurred appropriate, any lump sum payment would be speculative based upon the record before me.
12) Should those lump sum payments be secured, and if so, how?
a) Introduction
[75] The applicant seeks security of those payments by the transfer of the respondent’s interest in 3106 Erindale, Windsor, Ontario (the “property”), and/or designation of the child, April, as a beneficiary of the respondent’s pension plan, and/or securing a payment by a charge on the property.
[76] The relevant provisions of Family Law Act are as follows:
Powers of court
34 (1) In an application under section 33, the court may make an interim or final order,
(c) requiring that property be transferred to or in trust for or vested in the dependant, whether absolutely, for life or for a term of years;
(j) requiring that a spouse who has an interest in a pension plan or other benefit plan designate the other spouse or a child as beneficiary under the plan and not change that designation; and
(k) requiring the securing of payment under the order, by a charge on property or otherwise.
[77] The relevant provisions of the Child Support Guidelines, are as follows:
Security
- The court may require in the order for the support of a child that the amount payable under the order be paid or secured, or paid and secured, in the manner specified in the order.
[78] In order to obtain an order securing payment by a charge on property, the onus is on the applicant to establish three things:
- Liability for payment;
- The amount of that liability;
- That the previous conduct of the person obliged to pay, and his or her reasonably anticipated future behaviour, indicate that the payment order will not likely be complied with in the absence of more intrusive provisions.
See Lynch v. Segal (2006), 2006 CanLII 42240 (ON CA), 277 D.L.R. (4th) 36 , 82 O.R. (3d) 641 (C.A.), at paras. 32 and 38; Kennedy v. Sinclair (2001), 2001 CanLII 28208 (ON SC), 18 R.F.L. (5th) 91 (S.C.), affirmed (2003), 2003 CanLII 57393 (ON CA), 42 R.F.L. (5th) 46 (C.A.); Rostek v. Rostek, [1994] O.J. No. 1606 (Gen. Div.), 1994 CanLII 18195 (ON SC), 6 R.F.L. (4th) 140; Alldred v. Alldred, [1998] O.J. No. 3606 (Gen. Div.).
[79] In this case, I have found liability for child support.
[80] As to the second requirement, while I have made findings quantifying most amounts owing up to April’s 18th birthday on April 20, 2023, the evidence available at the hearing was for the most part insufficient to make the necessary findings of amounts owing after that time.
[81] As to the third requirement, I conclude the applicant has met her onus. I reiterate the respondent maintains the separation agreement relieves him of child support obligations, notwithstanding very clear and cogent advice to the contrary in the endorsement of Howard J. dated September 23, 2022.
[82] Based upon that proposition, he continues to refuse to pay child support.
[83] He has also refused to make any financial disclosure whatsoever until ordered to do so by Howard J. As said above, his compliance with that order was under protest. He maintains the order was without jurisdiction and that the separation agreement disposed of any requirement for him to pay child support or provide ongoing financial disclosure.
[84] In addition, the applicant deposed that the respondent has plans to leave the country once the property is sold. The respondent and his current partner have ties with both Australia and South Africa. There was nothing in the respondent’s materials to suggest that he is not planning to leave the jurisdiction in order to frustrate his child support obligations. While I am aware that the onus in this motion is upon the applicant, I did draw an adverse inference from the respondent’s failure to offer evidence to the contrary. While in isolation and far from determinative, I did consider that adverse inference as part of the overall factual matrix.
[85] Moreover, it was the applicant’s evidence that the respondent has threatened on several occasions that he would never give her “a penny”, and that he would risk everything to ensure that the applicant “got nothing”. Again, this evidence was uncontradicted.
[86] Finally, I reiterate the respondent failed to attend the hearing and gave no notice of that intention.
[87] As a result, I conclude that the payment order will not likely be complied with in the absence of more intrusive provisions.
b) Conclusions as to lump sum payments and security
[88] For the above reasons, I find lump sum payments for the reasonably quantifiable retroactive and ongoing child support and section 7 payments appropriate. I also find it appropriate to secure those payments.
[89] The applicant seeks security in the amount of $300,000. I do not find it appropriate to grant security beyond the quantifiable child support, section 7 expenses, and costs. There are four overarching reasons.
[90] The first reason is that the issue as to whether child support will be paid after April 20, 2023 remains speculative given the lack of evidence as to investigation into, or applications to, post-secondary education institutions by April. She is now in grade 12. Her post-secondary education, if any, would presumably commence in September 2023. That is only a little over nine months from now. While applicant’s counsel reported to make submissions in that regard, there is nothing in the evidence to suggest she has commenced the process of investigating or applying to post-secondary institutions. In other words, the evidence falls short of demonstrating that April will pursue a post-secondary education.
[91] The second reason is that the request is also speculative as to the quantum of post-secondary expenses. There was no evidence whatsoever in that regard.
[92] The third reason is that there are currently three RESPs, totaling a little over $45,000 that are to be used for April’s post-secondary education. Again, for the reasons above, even presuming April pursues post-secondary education, I have no way of ascertaining whether any further funds will be required for that education once the RESPs are applied to those costs.
[93] The fourth reason is that I find $300,000 would be disproportionate given the known child support obligations discussed above and below.
[94] In conclusion, I find it appropriate to grant security, but for only those amounts which are reasonably ascertainable and not those which remain speculative on the record before me.
c) Conclusions as to the form of security
[95] There were a number of suggestions made by applicant’s counsel and in her argument. They include the following three propositions.
i. Transfer of the property or security of payment by a charge on the property
[96] Unfortunately, the property has recently been sold and accordingly these remedies are no longer available.
ii. Designation of April as an irrevocable beneficiary on the respondent’s employment pension plan
[97] Section 65 of the Pension Benefits Act, R.S.O. 1990, c. P.8 (“Pension Benefits Act”), provides that “every transaction that purports to assign, charge, anticipate or give as security money payable under a pension plan is void.” Similarly, s. 66(1) provides that “money payable under a pension plan is exempt from execution, seizure or attachment.”
[98] However, ss. 66(4)(4) and 66(5) of the Pension Benefits Act provides an exception from that general rule for transfers of a lump sum for support orders enforceable in Ontario. In other words, it appears that a lump sum payment may be available under that legislation.
[99] Although applicant’s counsel provided a factum, it does not contain any case law on this or any other issues.
[100] In Belton v. Belton, [2010] O.J. No. 1691 (S.C.), the court found that such pensions are available on account of support claims. Similar conclusions were reached in Thompson v. Gilchrist, (2012) 2012 ONSC 4137, 27 R.F.L. (7th) 83, and Trick v. Trick (2006), 2006 CanLII 22926 (ON CA), 271 D.L.R. (4th) 700, 81 O.R. (3d) 241 (C.A.).
[101] Section 66(4) of the Pension Benefits Act limits the amount available to one half.
[102] In any event, the issue is moot at this point in time. On September 23, 2022, Howard J. made an endorsement that the respondent’s employer, TRQSS, provide information including any pension plan that the company offers. The order has not yet been taken out and served upon TRQSS. As a result, details of any pension plans are currently unknown.
[103] I am not prepared to make a speculative order. That is without prejudice to the applicant returning on a further motion and requesting an order for security against a pension plan if one exists, and if the order is necessary given my findings below as to the respondent’s RRSP.
[104] If brought, the motion materials should include sufficient information to adequately identify the pension plan and its administrator, along with legislation and case law as to the issue of jurisdiction to grant an order for security or transfer of sums from the pension plan, if any.
iii. Securing of payment as against RRSPs
[105] According to the financial statement dated October 4, 2022, the respondent has the following RRSPs:
a) Manulife RRSP in the approximate amount of $242,000; b) Tangerine RRSP in the amount of approximately $38,200.
[106] The courts have found that there is jurisdiction pursuant to s. 12 of the Child Support Guidelines to order that an amount under a support order be paid or secured from an RRSP: see Maimone v. Maimone, 2009 CanLII 25981 (ON SC), [2009] O.J. No. 2140 (S.C.)(QL), at para. 61; Kimberly Rose Kelly v. Michael Lawrence Kelly, 2013 ONSC 6733 (“Kelly”), at paras. 39 and 40; Dickinson v. Dickinson, [1998] O.J. No. 4815 (Gen. Div.), at para. 43.
[107] I conclude a total of $30,470.96 ought to be withdrawn from one or both RRSPs and that the respondent should be liable for the tax on those withdrawals. That total is made up of the following:
a) Retroactive lump sum child support to and including October 31, 2022, in the amount of $22,032; b) Lump sum ongoing child support from November 1, 2022, to and including April 20, 2023, in the amount of $4,929.86; c) Retroactive lump sum section 7 expenses to and including October 31, 2022, in the amount of $2,745; d) Lump sum ongoing section 7 expenses for counselling only from November 1, 2022, to and including April 20, 2023, in the amount of $764.10.
[108] In cases like this, the transfer is often done by spousal rollover. The ultimate tax responsibility is on the receiving spouse and not the payor spouse. In such cases the credit to the payor is generally reduced by the amount of income tax payable: see Kelly, at para. 38.
[109] However, in this case the parties are not married and, accordingly, it appears that a rollover is not available. It follows that the amounts are to be payable by way of withdrawal from the RRSPs rather than rollover. It further follows that a gross up would not be appropriate.
[110] However, a withdrawal will be required in addition to the sum of $30,470.96 payable to the applicant in a sufficient amount to pay the withholding tax generated by the withdrawal. That withholding tax must be remitted to the Canada Revenue Agency on behalf of the respondent.
[111] In addition, the costs of this hearing once determined are to be withdrawn from one and/or both of those RRSPs. That will be the subject of another order, at a later date.
13) Should any interest of the respondent in the RESPs be transferred to the applicant?
[112] The applicant states that there is a total of three RESPs for the benefit of April.
[113] There were two RESPs required by the separation agreement:
- The RESP pursuant to the terms of paragraph 9(1)(i) of the separation agreement creating a RESP in both parents’ names. That provision requires the respondent to pay the sum of $10,000 by way of payments totaling $1,000 a year.
- The RESP pursuant to the terms of paragraph 9(6) of the separation agreement creating what appears to be a second RESP in both parents’ names. That provision requires the applicant to contribute $150 per month and the respondent is required to contribute $125 per month to that RESP.
[114] The applicant deposed that the RESP required by s. 9(1)(i) of the separation agreement was set up. The requirements of paragraph 9(6) were satisfied by each party setting up their own separate RESP. As a result, there are a total of three RESPs for the benefit of April. They are as follows:
- The RESP pursuant to the terms of paragraph 9(1)(i) of the separation agreement which is in the name of both parties (the “joint RESP”). That RESP is with CIBC and currently has a balance of approximately $12,209.
- The RESP in the name of the applicant only (the “applicant’s RESP”). That RESP is with Royal Bank and currently has a balance of approximately $18,674.39.
- The RESP in the name of the respondent only (the “respondent’s RESP”). That RESP is with CIBC and currently has a balance of approximately $14,443.
[115] The applicant seeks an order that all three of these RESP accounts be signed over to her as trustee for the child.
[116] Paragraphs 9(1)(i) and 9(6) of the separation agreement which creates these obligations both provide that this money is intended for the child, and that if it is not used for April’s education it will be transferred to an RRSP for her benefit. Given my observations above as to the respondent’s conduct, I have good reason to believe that he will not comply with that obligation.
[117] As a result, I find it appropriate to have the respondent’s interest in the joint RESP and the respondent’s RESP transferred to the applicant in trust for April.
14) Life insurance
[118] I can think of no reason the child April should not be included on any life insurance available through the respondent’s employer.
15) Health benefits
[119] I can think of no reason the child April should not be included on any health benefits available through the respondent’s employer.
C. ORDERS
[120] For all the above reasons, final orders to go pursuant to the Family Law Act and Children’s Law Reform Act, R.S.O. 1990, c. C.12 as follows:
1) The Amendment of the Application
The application shall be amended in accordance with the relief sought in the applicant’s motion.
2) Parenting Time
a) The Applicant’s Parenting Time
The applicant Gail M. Jones shall have primary parenting time with the child April Mehak Joan Iqbal, born April 20, 2005.
b) The Respondent’s Parenting Time
There shall be no order for the respondent Ahsan Iqbal to have parenting time with the child April Mehak Joan Iqbal, born April 20, 2005, because he failed to file the requisite Form 35.1 (and Form 35.1A, if applicable) affidavits. This order is without prejudice to a future request for parenting time based upon an appropriate record.
3) Decision-making
The applicant Gail M. Jones shall have sole decision-making authority for the child April Mehak Joan Iqbal, born April 20, 2005.
4) Retroactive Child Support
Retroactive child support payable by the respondent to the applicant is fixed at $22,032 as of October 31, 2022. That amount is payable as a lump sum immediately.
5) Ongoing Child Support
Commencing November 1, 2022, the respondent Ahsan Iqbal shall pay the applicant Gail M. Jones child support for the child April Mehak Joan Iqbal, born April 20, 2005, in the amount of $871 per month based upon imputed income of $94,997.
A lump sum for ongoing child support for the 5.66 months commencing November 1, 2022, and ending April 20, 2023, in the amount of $4,929.86 is payable by the respondent to the applicant immediately.
Thereafter, monthly payments shall be made by the respondent to the applicant on the first of each month commencing April 21, 2023, provided the child April Mehak Joan Iqbal, born April 20, 2005, is enrolled in, or in the process of being enrolled in, full-time post-secondary education.
6) Retroactive Section 7 Expenses
Retroactive section 7 expenses are fixed at $2,745 as of October 31, 2022, payable by the respondent Ahsan Iqbal to the applicant Gail M. Jones for the child April Mehak Joan Iqbal, born April 20, 2005. That amount is payable as a lump sum immediately.
7) Ongoing Section 7 Expenses
Commencing November 1, 2022, the respondent Ahsan Iqbal shall pay to the applicant Gail M. Jones 45 percent of the section 7 expenses incurred by the respondent for the benefit of the child April Mehak Joan Iqbal, born April 20, 2005, as follows:
a) A lump sum of $764.10 is payable immediately for April’s counselling expenses at $300 per month for the 5.66 months commencing November 1, 2022 and ending April 20, 2023.
b) Other section 7 expenses shall become payable as incurred so long as April is a child of the marriage including without limitation:
i. April’s counselling expenses in the amount of $100 per session on or after April 21, 2023; ii. That portion of the medical and dental insurance premiums attributable to April which are incurred on or after November 1, 2022; iii. That portion of health-related expenses incurred on or after November 1, 2022, that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; iv. Expenses for post-secondary education incurred on or after November 1, 2022, and which exceed the total value of the RESPs; and v. Extraordinary expenses for extracurricular activities incurred on or after November 1, 2022.
8) Payment out of RRSPs
Payment in the amount of $30,470.96 is to be made to the applicant Gail M. Jones by way of withdrawal by the respondent from one or both of the following RRSPs:
a) Manulife RRSP in the approximate amount of $242,000; b) Tangerine RRSP in the amount of approximately $38,200;
Provided that the total amount withdrawn from either plan shall not exceed 50 percent of the money payable pursuant to that RRSP.
That amount is the total of the following:
a) Lump sum retroactive child support to and including October 31, 2022, in the amount of $22,032; b) Lump sum ongoing child support from November 1, 2022, to and including April 20, 2023, in the amount of $4,929.86; c) Lump sum retroactive section 7 expenses to and including October 31, 2022, in the amount of $2,745; d) Lump sum ongoing section 7 expenses for counselling only from November 1, 2022, to and including April 20, 2023, in the amount of $764.10.
The funds are not to be rolled over to the applicant but treated as a withdrawal by the respondent. Accordingly, the tax on those withdrawals shall be the responsibility of the respondent Ahsan Iqbal and not the applicant. The required withholding tax shall be satisfied by a withdrawal of an amount necessary to pay both the $30,470.96 and the requisite withholding tax on the entire withdrawal. The withholding tax shall be remitted to the Canada Revenue Agency to the credit of the respondent Ahsan Iqbal.
The respondent’s signature will not be necessary to give effect to this order.
9) Collection of Child Support and Section 7 Expenses
Unless the support order is withdrawn from the Office of the Director of Family Responsibility Office, it shall be enforced by the Director and amounts owing under the support order shall be paid to the Director, who shall pay them to the person to whom they are owed.
10) RESPs
Any interest that the respondent Ahsan Iqbal has in the following RESPs is vested in the applicant Gail M. Jones in trust for April Mehak Joan Iqbal, born April 20, 2005. The respondent’s signature will not be necessary to affect those transfers:
a) The RESP with CIBC with a current balance of approximately $12,209 b) The RESP with Royal Bank with a current balance of approximately $18,674.39 c) The RESP with CIBC with a current balance of approximately $14,443
11) Health Benefits
The respondent Ahsan Iqbal shall maintain the child April Mehak Joan Iqbal born April 20, 2005, on any health benefit packages available now or in the future through his employment. The child shall be maintained on any such package until she no longer qualifies as a child of the marriage. In the event the respondent fails to do so, he shall be liable for 100 percent of any expenses that would have been covered.
12) Life Insurance
The respondent Ahsan Iqbal shall maintain the child April Mehak Joan Iqbal, born April 20, 2005, on any life insurance available now or in the future through his employment. The child shall be maintained on any such life insurance until she no longer qualifies as a child of the marriage.
13) The Respondent’s Estate to be Bound
The respondent’s estate is bound by the obligations in this order.
14) Income Information
On or before June 1 each year, the respondent and the applicant shall provide each other with a copy of their respective income tax returns (together with all attachments thereto) and notices of assessment/reassessment for the previous taxation year any corporate tax returns for any companies in which either party is a shareholder.
15) Costs
Applicant’s counsel shall on or before November 25, 2022, file a "Cost Outline" as provided for in Rule 57.01(6) (using Form 57(b)) no more than five (5) pages in length. The costs submission shall be double-spaced and use a "Times New Roman" font no smaller than 12 pitch. All references to the length of submissions exclude Bills of Costs and Costs Outlines and any Offers to Settle. Once determined those costs are determined they shall also be paid out of the respondent’s RRSPs. Applicant’s counsel to file a draft order in that regard with her costs submissions. Given the respondents lack of participation in the hearing, I will not hear from him on this issue.
16) The Judgment
The Judgment shall be drafted by applicant’s counsel and submitted to me through the Registrar’s Office for signature along with any ancillary documents requiring a judicial signature. There shall be no requirement for approval of the draft order by the respondent given his past conduct. The judgment shall also contain any additional information that may be required to properly identify the RESPs in order to give effect to these orders.
17) Retention of Jurisdiction
The court will retain jurisdiction to give directions or issue ancillary orders necessary to give effect to the above orders.
18) Interest
This order shall bear post judgment interest at 4 percent in accordance with the s. 29 of the Courts of Justice Act, R.S.O. 1990 c. C.43.
Original signed by Justice Christopher M. Bondy
Christopher M. Bondy
Justice
Released: November 23, 2022
COURT FILE NO.: FS-20-00020853-0000
DATE: 20221123
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Gail M. Jones
Applicant
– and –
Ahsan Iqbal
Respondent
JUDGMENT
Bondy J.
Released: November 23, 2022-