COURT FILE NO.: FS-21-00021496-0000 DATE: 20240308 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Zohra Fatima, Applicant AND: Muhammad Akhtar Agha, Respondent
BEFORE: M. Kraft, J.
COUNSEL: Dilani Gunarajah, agent for Archana Medhekar, for the Applicant Muhammad Akhtar Agha, self-represented
HEARD: March 7, 2024
Endorsement
Nature of the Motion
1The respondent, Muhammad Akhtar Agha (“Mr. Agha”), brought a motion seeking to:
a. Change the interim order of Faieta, J., dated February 24, 2022 (“the 2022 interim Faieta Order”), that requires him to pay child support for 3 children of the marriage, in the sum of $1,223 a month, based on his annual income of $61,339, and to reduce his child support for the prior period to $507 a month from February 1, 2022 to September 1, 2023, and that no further child support should be payable from him.
b. Change the 2022 interim Faieta Order, which granted the applicant, Zohra Fatima (“Ms. Fatima”), exclusive possession of the matrimonial home, to vacate that order;
c. Appoint a litigation guardian for Ms. Fatima on account of her health conditions;
d. Obtain the consent for the release of the Children’s Aid Society of Toronto records;
e. Reissue an order asking the Office of the Children’s Lawyer (“OCL”) to become involved, since they declined the case;
f. Sever the divorce from the corollary relief issues; and
g. Dismiss the case entirely without further notice to Ms. Fatima.
2Ms. Fatima sought to dismiss Mr. Agha’s motion for the following reasons:
a. Mr. Agha did not obtain leave of the court to bring the motion as is required by the TSEF of Sanfilippo, J., dated June 27, 2022 and my order, dated November 28, 2022;
b. Ms. Fatima has been diagnosed with Stage III cancer and is in the midst of treatment which caused Shore, J. to vacate the court dates and trial timetable on March 24, 2023, but did not change the prior orders made in 2022 that Mr. Agha seek leave of the court before he brings further motions;
c. Mr. Agha is in default of the costs order of the 2022 interim Faieta Order and has not paid her the $4,800 in costs ordered and the costs order of Sanfilippo, J., dated June 27, 2022, and has not paid her the $300 of costs order;
d. Mr. Agha is in arrears of child support under the 2022 interim Faieta Order;
e. Mr. Agha served these motion materials on February 26, 2024, unilaterally choosing March 7 2024 as the motion when her counsel is not available because she is in Manitoba, presenting at a Law Society of Manitoba program, and when he was advised that Ms. Fatima has medical appointments with her oncologist today;
f. Mr. Agha chose March 7, 2024 as the return date of his motion when he knew that the parties’ 16-year-old son was attending criminal court as a witness against Mr. Agha in connection with criminal charges of sexual assault and interference against him from March 4th – 6th, 2024, to intimidate her;
g. Mr. Agha’s motion materials exceed the permitted length of 12 pages of double-spaced pages and his attachments total 53 pages and exceed the permitted 10 pages under the Notice to Profession; and
h. It is not possible for his motion to be argued as a short one-hour motion.
3Ms. Dilani Gunarajah appeared as agent for Ms. Fatima’s counsel today since Ms. Medhekar was in Manitoba.
4Mr. Agha argued only three heads of relief at the motion today, given the time limitations, namely 1) to change the interim child support order so that no support was payable by him from March 2022 to December 31, 2022 when he was unemployed, and to reduce any child support payable by him for only 1 child of the marriage and to be in accordance with the income he earned in 2023 and is currently earning and terminate his child support; 2) to re-issue an order asking the OCL to become involved in the case so he can complete the intake form; and 3) to sever the divorce from the corollary relief issues.
Issues to be Determined
5The issues I need to decide are as follows:
a. Is there a material change in Mr. Agha’s circumstances justifying a change to the interim child support paragraphs of the 2022 interim Faieta Order?
b. Is there a reason to re-issue the order asking the OCL to become involved in this matter; and
c. Should the divorce be severed from the corollary relief issues?
Background Facts and Procedural History
6By way of brief background, the parties were married in October 1991 and came to Canada in 1997. They have five children. The two oldest children are independent adults.
7The parties jointly own the matrimonial home which is a condominium in Toronto.
8They separated on February 10, 2019, when Mr. Agha was removed from the matrimonial home and charged with assaulting Ms. Fatima.
9The three youngest children reside with Ms. Fatima. NA is 26 years old. RA is 23 years old and MA is 16 years old.
10The parties had their first case conference on December 1, 2021, at which the issues of child support, disclosure and exclusive possession of the matrimonial home were discussed.
11Ms. Fatima brought a motion for exclusive possession and child support and Mr. Agha brought a cross-motion for an order that she pay him occupation rent of $2,550 a month, an order that the two older children pay him $250 bi-weekly as support and that Ms. Fatima give him a Power of Attorney for the sale of an apartment in Pakistan and the parties divide the net proceeds of sale. That motion was returnable before Faieta, J. on February 24, 2022.
12Faieta, J. made a number of factual findings at this motion. In particular, he found as follows:
a. Mr. Agha’s refusal to pay child support for NA and RA because they have not spoken with him since April 2020 is not a legal basis for refusing to pay child support;
b. NA is disabled, having been diagnosed with DiGeorge Syndrome, a chromosomal abnormality, causing her to have significant cognitive deficits and limited intellectual skills. NA cannot function independently and needs daily assistance;
c. RA, at the time, was in the 3rd year of an Engineering program at the University of Toronto and living with Ms. Fatima.
d. MA was a 14-year-old high school student who identifies as gay, has been diagnosed with Major Depressive Disorder and OCD. An Undertaking issued on August 31, 2021, prohibits Mr. Agha from communicating directly or indirectly with MA as a result of criminal charges for sexual assault and sexual interference with MA which occurred between September 2013 and September 2014.
e. NA, RA and MA were found to be children of the marriage entitled to child support as defined in the Divorce Act;
f. Interim child support is to be calculated on the basis of Mr. Agha’s Line 150 income earned in 2020 of $61,339.
g. The best interests of the children are served by knowing that Mr. Agha, who had agreed not to return to the matrimonial home, would not be permitted to change his mind, if the bail conditions in the criminal proceeding were revoked.
h. Mr. Agha had not paid child or spousal support in the three years since the separation;
i. Ms. Fatima’s 2020 income was $31,221.
j. The issues raised by Mr. Agha in his cross-motion were dismissed as they were not urgent and they were never addressed at a case conference as required by r.14(4) of the Family Law Rules;
k. Mr. Agha’s failure to pay child support since the date of separation amounted to bad faith.
13Faieta, J. made a temporary order, without prejudice to Ms. Fatima’s right to seek retroactive support to the date of separation, requiring Mr. Agha to pay interim child support of $1,223 a month for the 3 children of the marriage starting February 1, 2022; Ms. Fatima was granted interim exclusive possession of the matrimonial home; Mr. Agha was to continue to maintain all expenses associated with the matrimonial home, including the mortgage, property taxes, home insurance and necessary repairs and renovations; Mr. Agha’s cross-motion was dismissed; and Mr. Agha was to pay Ms. Fatima, costs of the motion in the sum of $4,800 within 30 days.
14On April 1, 2022, the parties attended at Settlement Conference before Lococo, J., at which the parties agreed on consent, Mr. Agha would pay 65% and Ms. Fatima would pay 35% of the children’s s.7 expenses and the Court required the involvement of the OCL. The OCL declined to take the case.
15On June 24, 2022, the parties attended a combined SC/TMC before Sanfilippo, J., at which the parties agreed to final orders granting Ms. Fatima sole decision-making responsibility for NA and MA; Ms. Fatima was to have guardianship over NA’s RDSP account at RBC; Ms. Fatima was to be permitted to travel with the children outside of Canada without the need for a travel consent from Mr. Agha, and Ms. Fatima was permitted to obtain passports for the children and other government issued identification without the consent of Mr. Agha. The TSEF was completed, outlining that the remaining issues would require a 7-day trial, scheduled to commence on April 20, 2023. An exit-pre-trial was scheduled for March 29, 2023. Sanfilippo, J. ordered Mr. Agha to pay costs of the combined SC/TMC since he did not serve or prepare the required documents in the sum of $400, to be paid within 30 days.
16On March 24, 2023, the parties agreed on consent to an order that the timetable set out in the TSEF of Sanfilippo, J., dated June 24, 2022, were to be vacated, along with the exit-pre-trial and 7-day trial, on account of Ms. Fatima being diagnosed with Stage III cancer. Shore, J. ordered that urgent motions may be brought by either party, if needed and that a new TMC would be conducted on June 26, 2023.
17Mr. Agha never paid the costs order of the 2022 interim Faieta Order, or the costs order of Sanfilippo, J.
Issue One: What is the requirement in terms of a material change to ask the court to change a temporary child support order?
18As I stated in in Moore v. Lemmon, 2023 ONSC 6735 at para. 30:
At the end of the day, interim support motions are meant to be summary in nature; the court is not required to conduct a "detailed inquiry into all aspects and details of the case". As Justice Chappel explained in Damaschin-Zamfirescu v Damaschin-Zamfirescum, 2012 ONSC 6689, 2012 CarswellOnt 14841 (S.C.J.), at para. 24, interim support orders are meant to be "holding orders.": Jarzebinski v. Jarzebinski, 2004 Carswell ON 4600 (ONSC, at para. 36; and Spence v. Sly, 2010 CarswellOnt 8359 (S.C.J.), at para. 11.
19Once an interim order is made, it is intended to be in place until a trial. Caselaw makes it clear that there is a significant difference between applying to vary an interim order versus a final order. Interim orders are most commonly varied only in “compelling” or “exceptional” circumstances: Lusted v. Bogobowicz, 2021 ONSC 269.
20In Thom v. Thom, [2014] O.J. No. 2115, the court stated, “Given that interim Orders are ‘meant to provide a reasonable acceptable solution on an expeditious basis for a problem that will get a full airing at trial’, requests to change them should be rare.” [Emphasis added]
21According to Mr. Agha, the material change in circumstances that justify a change to the 2022 interim Faieta Order is that he lost his employment and was not working or earning an income between March, 2022 and January 2023. He argues that he began working again, in January 2023, and he is now earning $48,000 a year. In order to survive, after the interim 2022 Faieta Order, he sold his car and continued to pay the matrimonial home expenses and whatever amount of child support he could afford. He also argues that of the three children for whom he was ordered to pay temporary child support, he should not have to pay child support for the children who refuse to have contact with him and/or that NA earns ODSP income and RA earns other income that should be taken in account when determining his child support obligation. Finally, Mr. Agha submits that since MA is now 16 years old and testified against him at the criminal proceeding, he has withdrawn from his parental charge and Mr. Agha ought not to be responsible to pay child support for MA. For these reasons, Mr. Agha seeks to have an order that he pay no child support.
22Ms. Gunarajah argued that Mr. Agha made these same arguments at the motion before Faieta, J. in 2022 and it was found that all three children were “children of the marriage” entitled to child support; the fact that the children were estranged from him was not found to be a reason for him not to be responsible for child support; and that the financial statement sworn by Mr. Agha in support of this motion, dated February 20, 2024, lists his current income at $59,287.68, which is not a material change from the income on which the 2022 interim Faieta Order was based, which was $61,499, a year. Further, Ms. Dhaliwal submits that Mr. Agha’s budget shows annual expenses of $87,361.92, for which he shows no corresponding debt, other than the mortgage for the home, demonstrating that he has not suffered a material change in circumstances.
(a) Are NA, RA and MA still “children of the marriage” entitled to child support?
23I am not persuaded that there is any evidence on the record demonstrating that NA or RA are earning any income. The evidence on record confirms that NA is disabled, RA continues to be in full-time attendance pursuing post-secondary educational studies at the University of Toronto and MA is 16 years of age. The definition of a “child of the marriage” as defined in the Divorce Act is a child of two spouses who a) is under the age of majority and who has not withdrawn from their charge; or b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.”
24In cases involving children of the relationship who are of the age of majority or older (“adult children”), the determination of entitlement is a fact-driven exercise in every case. A finding that an adult child has not withdrawn from parental charge or is not yet able to obtain the necessaries of life is insufficient to establish ongoing entitlement to support; the moving party must also show that the child’s inability to do so is attributable to illness, disability or another “cause” recognized by the Divorce Act (Ethier v. Skrudland, 2011 SKCA 17, at para. 27).
25The first part of the analysis in determining child support entitlement for adult children requires the court to ascertain whether the child is in fact still under parental charge. The analysis of this issue focuses in part on whether the child remains financially dependent on the parent (Rebenchuk v. Rebenchuk, 2007 MBCA 22, at para. 25; Thompson v. Ducharme, 2004 MBCA 42, at para. 14; P.(S.) v. P.(R.), 2011 ONCA 336, at para. 31). However, the case-law under both the Divorce Act and similar provincial child support legislation establishes that a child can also be under parental charge if they are unable to manage daily living on their own without direct and consistent care, monitoring and support from their parent (Briard v. Briard, 2010 BCCA 431, at para. 16; aff’d 2010 BCCA 431 (C.A.); leave to appeal to S.C.C. refused [2010] SCCA No. 435 (S.C.C.); Carpenter v. March, 2012 CarswellNLTD(F) 11, [2012] N.J. No. 184 (Nfld. and Lab. S.C.- Fam. Div.), a para. 7; Senos v. Karcz, 2014 ONCA 459, at para. 6).
26In assessing whether an adult child is “unable to obtain the necessaries of life” within the definition of “child of the marriage,” the question is not whether their sources of income and other financial assistance support a sustenance existence, but rather whether they are sufficient to support the child’s reasonable needs having regard for the condition, means, needs and other circumstances of the child, and the financial ability of each parent to contribute to the child’s support (Briard v. Briard, 2010 BCCA 431, at paras. 29-30; Lougheed v. Lougheed, 2007 BCCA 389, at paras. 23 and 25; Moore v. Moore, 2014 BCSC 2210, at para. 103; E.B.L.P. v. J.G.S., 2020 BCPC 18, at para. 50).
27Assuming that the court determines that the adult child is under parental charge and unable to withdraw from that charge or to obtain the necessaries of life, the second part of the entitlement analysis requires the court to determine whether the child’s inability to do so is due to illness, disability, or “other cause.” Section 2(1)(b) of the Divorce Act leaves open the question of what “other cause” would justify an order that a child who is of the age of majority or older remains entitled to child support from a parent, and the case-law establishes that the phrase is to be interpreted broadly (Olson v. Olson, 2003 ABCA 56, at para. 14; K.M.R. v. I.W.R., 2020 ABQB 77, at para. 37).
28Faieta, J. found that NA was unable to withdraw from parental change due to disability. Mr. Agha argues that NA is in receipt of ODSP income, something he claims to have raised before Faieta, J. There is no evidence on the record that NA is in receipt of ODSP. However, the case law is clear that the fact that an adult child suffering from an illness or disability receives money through disability benefits, other forms of government assistance or from family members may be relevant to whether they are unable to withdraw from parental charge, but it is not determinative (Wetsch v. Kuski, 2017 SKCA 77; leave to appeal to S.C.C. refused 2018 CarswellSask 291 (S.C.C.)) [Emphasis added]. Furthermore, an ill or disabled adult child who has sources of financial assistance and can meet their economic needs may nonetheless remain eligible for support if they require daily caregiving and monitoring by a parent to manage due to their challenges (Briard v. Briard, 2010 BCCA 431; Senos v. Karcz, 2014 ONCA 459; Carpenter, at para. 7; Steindinger v. Steindinger, 2013 MBQB 143, at para. 26). There is an important distinction between the threshold entitlement issue and quantum in these circumstances. Where the child is financially able to meet their reasonable needs but is dependent in every other way on their parent, they may meet the test for entitlement and the real question will be the appropriate quantum of support (Wetsch v. Kuski, 2017 SKCA 77, at para. 40; Senos v. Karcz, 2014 ONCA 459). In this case, there is simply no evidence on the record about whether NA is in receipt of ODSP or whether that changed since the 2022 interim Faieta Order. Accordingly, I find that NA is a child of the marriage entitled to child support.
29Faieta, J. found that RA was unable to withdraw from parental charge based on the expectation that RA would retain entitled to support based on her enrollment in a full-time program of post-secondary studies which constitutes “other cause” for a child’s inability to withdraw from parental charge with the definition of a “child of the marriage”.
30As stated by Chappel, J. in Weber v. Weber, 2020 ONSC 4098,
“The case-law is also clear that a child who has ended their studies does not necessarily lose their entitlement to support as soon as they have completed their education. The child may continue to be unable to withdraw from parental charge for a period of time after the completion of their studies for various reasons. For instance, the case-law recognizes that children may require a reasonable transition period after ending their studies to seek out and obtain employment. The assessment of whether the child remains unable to withdraw from parental charge during such a transitional period for reasons that may justify ongoing entitlement to support, and the appropriate length of any such transitional period, involves a careful consideration of all relevant evidence respecting the child’s overall condition, means, needs and circumstances (C.(C.L.) v. C.(B.T.), 2005 BCSC 1787, at para. 12; Hartshorne v. Hartshorne, 2010 BCCA 327, at para. 76; additional reasons 2011 CarswellBC 107 (C.A.); P.(S.) v. P.(R.), 2011 ONCA 336, at para. 32; MacEachern v. Bell, 2019 ONSC 4720, at para. 73; Brear; K.M.R. v. I.W.R., 2020 ABQB 77, at paras. 38-41).
31The evidence is that RA remains in school full-time in post-secondary educational studies. There is nothing on the record about RA’s income. Again, in these circumstances and on this record, I find that RA remains a child of the marriage entitled to child support.
32There is no dispute that MA is entitled to child support. MA is 16 years of age.
33Accordingly, I find that all three children fall into this category. On this basis there is no material change justifying a change in the 2022 interim Faieta Order.
(b) Did Mr. Agha’s income change in a compelling way?
34In terms of Mr. Agha’s income, the sworn financial statement he has put forward demonstrates that his current income is about $2,000 less per year than it was when the 2022 interim Faieta Order was made. During the motion, Mr. Agha shared his screen on Zoom and showed the court a copy of his T4 for 2023, showing his income at $46,524.22. He did explain that his current income is about $48,000 a year. On an annual income of $48,000 a year, Mr. Agha’s Table child support obligation for 3 children would amount to $940 a month, as opposed to the $1,223 a month ordered. However, the only sworn evidence on record is Mr. Agha’s sworn financial statement.
35In terms of the period of Mr. Agha’s unemployment from March 2022 to December 2022, Ms. Gunarajah argued that the Record of Employment provides that he was suspended or fired which means he lost his employment for reasons unknown which means, an argument as to imputation of income could be made.
36I do not find that sworn financial statement shows that a material change in Mr. Agha’s income justifying a termination of child support as he requests.
Issue Two: Is there a reason to re-issue the order asking the OCL to become involved in this matter?
37Mr. Agha argues that the OCL declined to become involved in this matter because he never fulfilled the intake forms and did not realize he had to do that. He referred during his submissions that he received a letter from the OCL advising that he should seek a new court order to ask the OCL to become involved in this matter. This letter was not in the record before the court. Mr. Agha did share his screen during the motion and showed the court a letter from the OCL, dated January 3, 2024 which simply stated that a new court order would be required for the OCL to reconsider its position.
38Ms. Fatima argues that there is no need for the OCL to become involved in this case. MA, the youngest children, is 16 years of age. His views and preferences are known, given that he has testified against his father in the sexual assault criminal trial days ago. Further, at this point, a court order requiring MA to have parenting time with Mr. Agha would not likely be followed since the Undertaking in place has prevented MA from having any indirect or direct contact with his father since the separation. If MA and Mr. Agha are going to have a relationship, that will be up to MA. Ms. Fatima has sole decision-making responsibility in any event. The court does not require the assistance of the OCL.
Issue Three: Should the divorce be severed from the corollary relief issues?
39Mr. Agha seeks an order severing the divorce from the corollary relief issues so he can obtain his religious divorce. He argues that the parties have been separated for 5 years and there is no prejudice to Ms. Fatima if the parties’ divorce is obtained.
40Ms. Fatima argues that since there is a temporary exclusive possession order in place under Part II of the Family Law Act, if the parties become divorced, she would no longer be a “spouse” as defined in the Family Law Act, and the exclusive possession order would not be valid.
41Mr. Agha was prepared to consent that he will not bring any motions to require Ms. Fatima to leave the matrimonial and he stated that he will continue to pay the expenses associated with the matrimonial home. Ms. Gunarajah, as agent, was not in a position to obtain Ms. Fatima’s consent with respect to this arrangement.
42Given that Part II of the Family Law Act applies to married spouses, an interim order for exclusive possession would become invalid if Ms. Fatima is not a “spouse” as defined in s.1(1) of the Act, being spouse” means either of two persons who, (a) are married to each other, or (b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right.
Costs:
43Given that this case has gone on longer than expected due to Ms. Fatima’s ill health, the Court appreciates that Mr. Agha wishes to move matters forward. However, the doctors’ letters explain that Ms. Fatima should be stronger in the Spring to be able to withstand a trial. Further, Mr. Agha is in arrears of child support to the extent of $4,542.76. Further, Mr. Agha is in default of two costs orders.
44Ms. Fatima seeks costs of this motion, given that Mr. Agha’s motion materials exceed the page limits set out in the Notice to Profession; he did not comply with existing court orders requiring him to seek leave of the Court before he could bring a motion; and he is default of two costs orders and in arrears of child support.
45Modern family costs rules are designed to foster four fundamental purposes: to indemnify successful litigants for the cost of litigation, to encourage settlements, to discourage and sanction inappropriate behaviour by litigants, and to ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867, at para. 10. The touchstone considerations of costs awards are proportionality and reasonableness: Beaver v. Hill, 2018 ONCA 840, at para. 12. The reasonable expectations of the unsuccessful party are a relevant consideration: Delellis v. Delellis, [2005] O.J. No. 4345.
46Subject to the provisions of an Act or the rules of court, costs are in the discretion of the court, pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. By r. 24(10)(a) of the Family Law Rules, the court is directed to make a decision on the costs of a step in the case promptly after dealing with the step, in a summary manner.
47Pursuant to r. 24 of the Family Law Rules, the successful party is presumptively entitled to costs, subject to the factors set out in r. 24: Beaver v. Hill, 2018 ONCA 840, at para. 10. In setting the amount of costs, the court must consider the reasonableness and proportionality the factors listed in r. 24(12) as they relate to the importance and complexity of the issues. These factors include each party’s behaviour, the time spent by each party, any written offers to settle, including those that do not meet the requirements of r. 18, any legal fees and any other expenses, and any other relevant matter.
48Ms. Fatima also seeks an order that Mr. Agha be cautioned against brining any further motions without leave of the court. Pursuant to Rule 1(8) of the Family Law Rules, the court has many powers to respond to a failure on the part of person to obey a court order in a case, including requiring a party to seek leave of the court before bringing further motions.
49The primary objective of the Family Law Rules is to enable the Court to deal with cases justly: r.2(2). To do so, the court must ensure that the procedure is fair to all parties, save expense and time, and deal with cases in ways that are appropriate to its importance and complexity.
50Mr. Agha has brought many 14B motions and continues to require Ms. Fatima to return to court when he is aware that she is in the midst of treatment for her Stage III cancer. It is important that further resources not be spent on dealing with temporary orders when this matter should be ready for trial as soon as Ms. Fatima can withstand a trial.
51In an effort to manage this case and setting timetables, in accordance with rule 2(5) of the Family Law Rules, the court scheduled the return of the Trial Management Conference so the TSEF can be reviewed and finalized.
ORDER
52This court makes the following order:
a. The respondent’s motion to change the temporary order of Faieta, J., dated February 24, 2022 in terms of child support is hereby dismissed;
b. The respondent’s motion to reissue an order seeking the involvement of the Office of the Children’s Lawyer is hereby dismissed.
c. The respondent’s motion to sever the divorce from the corollary relief issues is hereby dismissed. This issue was also raised in a 14B motion brought by the respondent dated January 28, 2024.
d. The parties shall attend a Trial Management Conference on July 19, 2024 at 10:00 a.m.
e. The respondent shall not be permitted to bring any motions, on the short list, as a long motion, or by way of a 14B motion, without first seeking leave of the Court.
f. The respondent shall pay costs of this motion in the fixed sum of $700, payable within 15 days from the release of this endorsement.
M. Kraft, J.
Date: March 8, 2024
