COURT FILE NO.: FS-21-00100522-0000
DATE: 2023 11 09
SUPERIOR COURT OF JUSTICE – ONTARIO
7755 Hurontario Street, Brampton ON L6W 4T6
RE:
TAHERA NASSER, Applicant
AND:
MUSTAFA MUHAMMAD TAKI NASSER, Respondent
BEFORE:
Justice Andre J.
COUNSEL:
Tahera Nasser, unrepresented Applicant
Corrine van der Burg, for the Respondent
HEARD:
October 13, 2023, by video conference
ENDORSEMENT
[1] The Respondent, Mustafa Muhammad Taki Nasser, brings a motion for the suspension of spousal support payments he was ordered to pay by Bloom J., on June 3, 2022. The Applicant, Tahera Nasser, brings a cross-motion for an order to increase spousal support payable to her by Mr. Nasser. The Respondent opposes the motion on the ground that the Applicant has not sought leave to bring this motion, contrary to an order by Justice McGee J. dated June 14, 2023.
Background facts
[2] The parties were married on November 14, 1975, and separated on June 25, 2020.
[3] The parties have two adult children namely, William Rearden, born on February 17, 1980 and Sarah Abigail, born April 20, 1983.
[4] On June 3, 2022, Mr. Nasser entered into a consent order requiring him to pay interim spousal support to Ms. Nasser. Justice Bloom J. ordered him to pay spousal support in the amount of $1,500 per month, based on a declared annual income of $68,000.
[5] The parties had a trial management conference on June 14, 2023. Justice McGee J. granted Mr. Nasser leave to bring two one-hour motions, one seeking an order for the sale of the matrimonial home and another for an order to suspend or terminate spousal support.
position of the respondent
[6] Counsel for Mr. Nasser submits the following:
a) There has been a material change in circumstances that justify the suspension of Bloom J.’s order for the payment of spousal support. She submits that Mr. Nasser retired on January 1, 2023 and no longer earns $68,000 annually. His post-retirement income is $1,850 or $22,206 annually which consists of CPP and Old Age Security payments. By contrast, Ms. Nasser’s present annual income is $24,120 which does not include CPP and Old Age Security payments.
position of the Applicant
[7] Ms. Nasser submits that Mr. Nasser has not retired from his employment and continues to work in the same office where he has worked for a number of years. She submits that employees of the company have confirmed that Mr. Nasser continues to work in his old office for three days weekly as he had done previously. Furthermore, he is the company’s accountant and has the ability to manipulate the information regarding his current income. His co-workers at this company are unaware of his retirement and that furthermore, the company pays for his gas and healthcare. Finally, Ms. Nasser submits that Mr. Nasser declared in his 2022 T-4 statement to the Canada Revenue Agency that his income for that year was $326,768. For these reasons, a suspension or termination of the spousal support order should not be made. While Ms. Nasser submitted that she was not opposed to the suspension of the order, she emphasized that Mr. Nasser is still gainfully employed at his old company. Ms. Nasser also seeks $100,000 from the net proceeds of sale of the matrimonial home.
analysis
[8] This motion raises the following issues:
a. Does this Court have jurisdiction to vary an interim spousal support order?
b. Can a reduction in a party’s income constitute a material change in circumstances that justify a suspension of the party’s payment of spousal support?
c. Did Mr. Nasser retire in January 2023, and did his income decrease as a result?
d. Should Ms. Nasser be granted a sum of money from the net proceeds of sale of the matrimonial home?
A. Does the Court have the jurisdiction to vary an interim spousal support order?
[9] Simply put, the Court has the jurisdiction to do so, pursuant to s. 15.2(2) of the Divorce Act and under its inherent jurisdiction. In exercising its discretion to vary a spousal support order, the moving party must satisfy the Court that a material change in the condition, means, needs or other circumstances of either spouse has occurred since the spousal support order was made: Casier v. Casier, 2021 ONSC 3407 (S.C.J.) at para.65; Lyson v. Lyson 1972 470 (ON CA), [1972] 3 O.R. 403 (Ont.C.A).
B. Can the reduction of a party’s income constitute a material change in circumstances that justify a suspension of the party’s payment of spousal support?
[10] The answer to this question is yes. In Haworth v. Haworth, 2018 ONCA 1055 (Ont. C.A.) at para. 14, the Court of Appeal stated that we “would … agree with the motion judge that the respondent’s substantial decrease in annual income does meet the threshold of variation.”
C. Did Mr. Nasser retire in January 2023, and did his income decrease as a result?
[11] Mr. Nasser’s counsel insists that he did. She submits that he is a very private person and did not tell his co-workers about his retirement on January 12, 2023. He did so when he turned 71 years old. As for his T4 Statement that showed that he earned $301,913.80 in 2022, his employer stated in a letter dated May 9, 2023 that Mr. Nasser was paid advance for consulting work in 2019 and prior years in the amount of $240,000. These funds were not noted as employment income “via a T4 or T4A” and that the only way his employer could provide a T4 and note the advances as bonuses was if they paid him the funds which they did in 2022. Mr. Nasser repaid the full amount in two installments on December 28, 2022 and January 6, 2023, thereby reducing his income to $61,913 for 2023. With the addition of government benefits, his 2022 income stood at $78,838.60.
[12] In further support of his motion to suspend his payment of spousal support, Mr. Nasser claims that payment of spousal support, based on his current financial circumstances, constitutes a “clear case of hardship and urgency”. This is because his monthly rent is $1,655 and he pays an additional $159.31 monthly for utilities. With his current monthly income of $1,850.50, all that is left for him to survive is approximately $39 every month.
analysis
[13] Quite frankly, I am skeptical of the financial information presented by Mr. Nasser to justify his request for on order suspending his payments of spousal support. He earned his Certified General Accountant (“CGA”) designation in 2006. He proceeded to successfully complete a Masters in Business (“MBA”) program in 2009. He worked for a gentleman called William Rutherford as an accountant from 2004 until his “retirement” on January 12, 2023. I find it inconceivable that the Respondent has a meager $39 monthly to live on. I also have great difficulty believing that Mr. Nasser, with his accounting expertise, would retire knowing that he would have less than $50 monthly to live on.
[14] In my view, the Respondent has access to more funds that he cares to admit. In response to the Applicant’s contention that he has over $700,000 in RRSP investments, his counsel submits that the amount is approximately $198,000. The Applicant also claims that he drained a Royal Bank of Canada account of $240,000 approximately ten (10) days before the parties separated.
[15] I also find it passing strange that following his “retirement”, the Respondent continues to work for free at his former employer without his co-workers’ knowledge, according to the Applicant, that he is indeed retired.
[16] For these reasons, I decline to suspend the Respondent’s obligation to pay spousal support, despite Ms. Nasser’s assertion that she is not opposed to it.
D. Should Ms. Nasser be granted a sum of money from the net proceeds of sale of the matrimonial home?
[17] The Applicant seeks $100,000 from the sale of the matrimonial home. Mr. Nasser seeks an amount between $80,000 to $100,000 to be given to both parties. In my view, an order that both parties should receive a sum of money in that range is appropriate.
conclusion
[18] I order that:
The issue of divorce is severed from other corollary relief;
The Respondent, Mr. Mustafa Muhammad Taki Nasser’s motion to vary an interim support order is dismissed; and
Both the Applicant and the Respondent will each receive $100,000 from the net proceeds of sale of their matrimonial home within thirty (30) days of the sale.
costs
[19] There shall be no order regarding costs.
André J.
Release Date: November 9, 2023