Court File and Parties

Court File No.: FS-22-30537 Date: 2023-11-22 Ontario Superior Court of Justice

Re: Penny Alalouf, Applicant (Responding Party on Motion) And: Anwar Sumar, Respondent (Moving Party) And: Family Responsibility Office (Responding Party on Motion)

Before: Kristjanson, J.

Counsel: Penny Alalouf, Self-Represented Anwar Sumar, Self-Represented Momal Mansoor, Counsel for Family Responsibility Office

Heard: At Toronto by videoconference November 14, 2023

Endorsement

Kristjanson, J.

[1] The Respondent support payor, Mr. Sumar, brought a Motion to Change in June 2022. He now seeks an interim order staying the enforcement of his support obligations by the Family Responsibility Office, and staying the underlying final support order of Justice Madsen dated May 26, 2017. The stay sought is for two months, for health reasons. The support order issued following a nine-day trial, reported at Alalouf v. Sumar, 2017 ONSC 3043. The trial judgment was upheld on appeal: Alalouf v. Sumar, 2019 ONCA 611.

Final Support Order and Arrears

[2] The Director is enforcing the final support order requiring Mr. Sumar to pay support to the Applicant, Ms. Alalouf in the amount of $985.00 per month for spousal support and $1,866.00 per month for child support for two children. The final support order is based on imputed income to the Respondent of $137,314.

[3] The Respondent owes arrears of $74,124.55, of which $835.00 are FRO fees. FRO is garnishing $2,884 per month, of which $2,851 is for current support payments, and $33 per month is being applied to arrears. FRO is garnishing 50 percent of the payor’s net income.

Statutory Scheme

[4] The Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 ("FRSAEA") is a statutory code for the enforcement of support orders in Ontario. By FRSAEA subsection 20(6), the operation or enforcement of a support deduction order is not affected by a stay of enforcement unless the underlying support order is also stayed.

[5] A payor may seek relief regarding the amount that is being deducted for arrears under a support deduction order: FRSAEA subsection 27(1)(c). The combined effect of FRSAEA subsections 20(6) and 27(1)(c) is that the Director may consent only to a stay of the amount deducted for arrears. To obtain a full stay of enforcement, the support payor must not only obtain a stay of enforcement against the Director, FRO, but also a stay of the underlying support order against the support recipient.

[6] The support recipient is the proper party to respond to a request for a stay of the support order, while the Director responds to enforcement issues, including a stay of deductions for arrears.

[7] In Garneau v. Ontario (Director, Family Responsibility Office), 2010 ONSC 2804, the moving party sought an order suspending the enforcement of spousal support obligations. Justice Quinlan summarized the statutory scheme at paras. 31-33:

[31] The Director has a duty to enforce support orders filed with her office and the authority to determine by what means her duties are to be carried out. An order staying the Director’s enforcement power would preclude FRO from exercising its legislative mandate.

[32] The Director is required to enforce a support deduction order that is filed in her office until the related support order is terminated and there are no arrears owing or until the support order and support deduction orders are withdrawn.

[33] A support deduction order is not affected by an order staying the enforcement of the related support order unless the support order is also stayed. Proceedings to stay an ongoing support obligation raise issues of entitlement as the support payor is seeking to vary, albeit temporarily, support payments agreed to between the payor and the recipient. The Director is not a party to such proceedings.

[8] The Respondent has also sought an Order staying or suspending the underlying support order, discussed below.

Suspending or Varying a Support Order

[9] FRO enforcement cannot be stayed unless the underlying support order is stayed or suspended under s. 17(1) of the Divorce Act. But s. 17(4)(child support) and s. 17(4.1) (spousal support) provide that an order under s. 17(1) can be made only if there is a qualifying change in circumstances.

[10] The test for interim variation of a final order, which applies here, was set out by the Divisional Court in S.H. v. D.K, 2022 ONSC 1203. The Divisional Court described the test for granting a temporary variation of a final order to be "stringent", requiring any supporting evidentiary basis to be quite "compelling". That was a case about interim variation of a parenting order. The court cited with approval the decision of Kurz J. in Berta v. Berta, 2019 ONSC 505. Kurz J. held at para. 40 that interim variation, including a stay, of a final support order requires the support payor to demonstrate:

(a) A strong prima facie case; (b) A clear case of hardship; (c) Urgency; and (d) That the moving party has come to court with “clean hands.”

Respondent’s Arguments

[11] The Respondent launched a Motion to Change in June 2022, seeking to retroactively reduce spousal and child support from January 1, 2018 based on his actual income, and to adjust support prospectively as well.

[12] On this motion, the Respondent seeks to stay/suspend support payments and FRO enforcement for November and December, and reinstate them in January. Mr. Sumar states he is looking to take November and December 2023 off to complete his testing (prostate screenings). In his reply affidavit he states: “10. All I am asking for is a short break so I can concentrate on my health issues and then resume payments in January 2024 when I expect to return to work.”

[13] Although he did not file an affidavit of a doctor, he appends his doctor’s notes to his affidavits. The September 25, 2023 doctor’s note was prepared for a work leave, and is bald and conclusory. The doctor states: “I am writing this letter to request a medical leave of absence for my patient. Due to ongoing health issues, Mr. Sumar requires time off work to focus on his recovery and well-being,” and:

It is my professional opinion that Mr. Sumar should be granted a two-month leave of absence from October 30, 2023 to January 1, 2023 to fully address his health concerns and undergo necessary tests and treatment. Due to the nature of my patient's condition, it is essential that they prioritize their recovery and dedicate the appropriate time to seek proper treatment. During this period, he will not be able to perform his job duties effectively.

[14] I do not admit a screenshot of what is described as a doctor’s typed notes, attached to the reply affidavit. It is not proper reply, most of it appears based on self-reporting, and does not contain an opinion or set out a compelling reason for a two-month leave.

[15] These types of notes, appended to affidavits, are of little help to the court. Family Law Rule 14(19) allows for hearsay in limited circumstances. In some cases, unsworn doctor’s letters have been held to be inadmissible because the letters contained no evidence about the doctor’s qualifications and there was no opportunity to cross-examine the doctor. While a doctor’s letter or report will not be excluded only because it is not in the form of an affidavit, the court must be satisfied of the truth of the facts contained in the letter or report: see Nakonechny, J. in Lucreziano v. Lucreziano, 2021 ONSC 4106, at para. 49.

[16] As Myers J. states in Forward Signs Inc v. Philcan Group Inc., 2022 ONSC 5593 at para. 68:

The court is balancing the rights of two parties and needs to ensure a fair process to all. The doctor, by contrast, is a fiduciary with a singular focus on the health of the patient.

[17] That a doctor provides a broadly stated opinion that a patient should not work – without any analysis of the nature of the illness, or any accommodations that could be offered – is of little help. The doctor does not describe the diagnosis or the prognosis, what tests and treatment are required, whether the tests or treatment are so debilitating that a day, or a week, or a month, would be needed to recover, or accommodations that would allow the Respondent to work. All parties in litigation are under stress. A support recipient suddenly stripped of her income for two months would be under enormous stress.

[18] The doctor does not have to balance the rights of the support recipient to receive court-ordered upport with the interests of the support payor in not working. Since there was no affidavit, the doctor may not even know that the patient would use the work leave letter to seek to suspend his child and spousal support payments. The doctor focuses only on his patient’s interests – the support payor. But the Court must do justice between the parties, based on the evidence.

[19] The Applicant also attaches what appear to be lab print outs of blood test results, with his evidence about what the results mean. There is no medical evidence to support the nature and importance of the results, and I place no weight on the lab print outs.

Applicant’s Arguments

[20] The Applicant argues that support should not be stayed for two months. Not only is support in arrears, but the Respondent has failed to pay the equalization ordered at trial. The Respondent has failed to pay costs awarded by the Court of Appeal in Mr. Sumar’s failed appeal from the trial decision.

[21] The Applicant notes that income was imputed to Mr. Sumar in 2017 because the trial judge held that he was underemployed within the meaning of section 19 of the Child Support Guidelines. On the evidence at trial, the trial judge imputed income of $137,914, an average of his incomes in 2013, 2014, and 2015, which the trial judge found to be a fair representation of his earning capacity. The Applicant questions Mr. Sumar’s income claims.

[22] The Applicant submits that Mr. Sumar has failed to provide annual financial disclosure as required by the final support order, and has not made the required disclosure in the Motion to Change. The Applicant argues that Mr. Sumar failed to serve and file an updated financial statement for the motion (the only financial statement is dated June 2022), and has not provided his full income tax returns (with information slips and schedules). This failure to make disclosure is consistent, she argues, with Mr. Sumar’s conduct at the trial. The trial judge found at para. 2:

Unfortunately this case was marked by two issues which plague the effective resolution of many family law cases: the failure to make full, frank, and timely disclosure; and a failure to comply with temporary Court Orders. This case was also marked by a lack of candor on the part of the Respondent on numerous issues. All of these factors necessitated a trial where one should not have been required.

[23] The Applicant submits that the trial judge found Mr. Sumar to lack credibility, particularly on financial issues, and those findings should follow Mr. Sumar here. As summarized by the Court of Appeal in Alalouf v. Sumar, 2019 ONCA 611 at para. 4:

The trial judge listed examples, including: (1) she strongly suspected that the father altered the date on a Scotiabank Line of Credit statement (at para. 8); (2) she did not accept the father's evidence concerning how the balance of this line of credit was retired upon the sale of the matrimonial home (at paras. 9-10); and (3) she found that the father's February 7, 2015 sworn financial statement was "not accurate" in relation to a newly acquired job (at para. 11) and that he "misstated his income" in his updated financial statement sworn on January 7, 2017 (at para. 12). After citing other examples, the trial judge concluded that, "[i]t appears that on a range of issues Mr. Sumar has not been forthright with Ms. Alalouf, or with the Court": at para. 18. This led the trial judge to conclude that, "where the testimony of Ms. Alalouf and Mr. Sumar differs, I find the testimony of Ms. Alalouf more credible": at para. 5.

[24] The Applicant points to the dearth of medical and financial evidence filed by the Respondent to argue that there is not a prima facie case for an change in the support order, nor is this matter urgent.

[25] The Applicant has been laid off from her most recent employment and has been on a sick leave since May 2023. Her sick leaves ends in December when she will have to find new employment, and one daughter continues at university. Suspending support for two months would create hardship to the Applicant.

Decision

[26] I find that the Respondent has failed to establish that support should be stayed or suspended for two months. The Respondent has failed to establish, (a) a strong prima facie case; (b) a clear case of hardship; (c) urgency; and (d) that the moving party has come to court with "clean hands".

[27] The Respondent is essentially seeking two months in which he should not pay child and spousal support, without any compelling medical evidence. The request is to stay support so the Respondent can attend (an unnamed number of) appointments and tests, with no expert evidence of the specific diagnosis or prognosis, so he can “concentrate” on his health issues. This is not urgent. This is not a change so significant, long-lasting, and material that it must be immediately implemented.

[28] The Respondent has not established hardship. Since the Respondent failed to provide full financial disclosure (including failing to provide an updated Form 13 Financial Statement as required by the Rules), it is impossible for the court to determine his financial resources, and if there is hardship.

[29] The Respondent has not come to court with “clean hands.” He failed to pay the equalization owed. He has outstanding costs awards, including the Court of Appeal costs award. He has failed to make full financial disclosure on this motion. He is in significant arrears of child and spousal support – over $70,000.00.

[30] This leads me to exercise my discretion to refuse to stay or suspend the support order and, as a result, to refuse the stay of FRO enforcement.

[31] The Respondent’s motion is dismissed, with costs. FRO did not ask for costs, appropriately in my view, although the Factum and the submissions were very helpful.

[32] The Applicant has been successful on the motion, and is presumptively entitled to costs. The Applicant is to serve and file costs submissions (limited to six pages double-space, 12-point font, plus Costs Outline, plus Offer to Settle if any) by December 5, 2023. Submissions are to be sent through the Family Portal with a request that they be brought to my attention.

[33] The Respondent is to serve and file costs submissions (limited to six pages double-space, 12-point font, plus Costs Outline, plus Offer to Settle if any) by December 19, 2023. Submissions are to be sent through the Family Portal with a request that they be brought to my attention.

[34] The court, of its own motion, dealt with two more issues, child support for a child no longer in post-secondary education, and disclosure.

Other Issues: Child Support Terminating for J.S.

[35] The parties agree that J.S. is no longer in post-secondary education, and not entitled to child support. I find that child support for J.S. should be terminated, with an appropriate transition period. This is based on a loss of eligibility for support, giving effect to the intent that the original order would only continue for so long as entitlement existed (Erskine v. Erskine, 2011 CarswellBC 1888 (S.C.)). J.S. has not been in full-time post-secondary since at least September 2023. Perhaps J.S. ceased being entitled to support earlier than December 31, 2023. That issue will be dealt with on the Motion to Change.

[36] But given that both parties agree that J.S. is not entitled to support on a prospective basis (without ruling on whether she may reestablish entitlement), I vary the support order by terminating support for J.S., allowing a period of transition to December 31, 2023.

[37] I vary paragraph 8 of the Order of Justice Madsen on an interim, without prejudice basis commencing January 1, 2024, to provide that child support is payable for the child A.S., commencing January 1, 2024, in the amount of $1,203.00 per month based on the Respondent’s imputed income of $137,314, and terminating support for J.S. as of December 31, 2023. A support deduction order is to issue.

Other Issues: Disclosure

[38] It is important that the parties complete all disclosure required for the Motion to Change before the Settlement Conference being held in February. The Respondent must make disclosure in accordance with Rule 13 of the Family Law Rules and section 21 of the Child Support Guidelines for each year he seeks adjustment of support.

[39] I make disclosure orders designed to ensure that disclosure is complete well before the February 12 Settlement Conference, to allow the parties to prepare their briefs and obtain orders that may be required. If the parties seek other information, they may serve Form 20 Requests for Information by December 8, with responses to be provided by January 12.

ORDER

1. The Respondent’s motion is dismissed, with costs.
2. Paragraph 8 of the Order of Justice Madsen dated May 26, 2017 is varied on an interim, without prejudice basis commencing January 1, 2024, to provide that child support is payable for the child A.S., commencing January 1, 2024, in the amount of $1,203.00 per month based on the Respondent’s imputed income of $137,314, and terminating support for J.S. as of December 31, 2023.
3. A support deduction Order is to issue.
4. By January 5, 2024, the Respondent must produce: (a) An update Form 13 Financial Statement, with all supporting documents (b) Full income tax returns, with all information slips and schedules, for all tax years 2018 to date (c) Year-end pay stub December 2023 (d) For self-employment income from January 1, 2018, to present: (i) the financial statements of Mr. Sumar’s business or professional practice (ii) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the spouse does not deal at arm’s length (e) From January 1, 2018 to the present, monthly banks account, investment account, line of credit, and credit card statements for all accounts held by Mr. Sumar, whether sole or joint (f) Evidence of all loans borrowed from family, including the terms of the loan, the identity of the lender, the dates the money was advanced (with corresponding bank statement showing amount advanced and deposit to an account held by Mr. Sumar), and repayment if any (showing repayment by etransfer, cheque, and so on from account held by Mr. Sumar) (g) All expenses paid by Mr. Sumar for the cottage since January 1, 2018, with receipts/invoices and proof of payment from an account owned by Mr. Sumar (h) Rental agreement for apartment (i) Equifax credit report
5. By January 5, 2024, the Applicant must produce: (a) Proof of enrolment of J.S. and A.S. in full-time post-secondary education, from 2020 to present (b) Section 7 expenses for which reimbursement is claimed in the Response to Motion to Change (tuition, and so forth), if any, from January 1, 2018 to present, with supporting documentation, including (if post-secondary expenses are claimed), evidence of OSAP grants/loans assumed by J.S. and A.S. for each year, to present (c) Income tax returns, with all information slips and schedules, for tax years 2018 to present, and year end paystub 2023

“Justice Kristjanson”

Released: November 22, 2023