Elbadawi v. Sati, 2026 ONSC 2431

Court File and Parties

CITATION: Elbadawi v. Sati, 2026 ONSC 2431

COURT FILE NO.: FC-19-00000576-0002

DATE: April 24, 2026

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

RE: Hatim Elbadawi, Applicant

AND:

Amani Sati, Respondent

BEFORE: MITROW J.

COUNSEL: Hatim Elbadawi, Self-represented

Salim Khot, for the Respondent

HEARD: April 17, 2026

ENDORSEMENT

INTRODUCTION

1This is the respondent’s motion for summary judgment. The respondent seeks an order dismissing the applicant’s motion to change a final order in relation to child support. The respondent also seeks an order requiring the applicant to obtain leave of the court before bringing any further motion to change.

2The applicant, in his motion to change, seeks to have his child support reduced to zero because he claims that his self-employment income as a cab driver is below the threshold limit for paying child support.

3The affidavit evidence is quite brief. The facts are simple and there are no material facts in dispute. I find there is no genuine issue for trial.

4It is appropriate to make a final order based on the evidentiary record: see r. 16(6) of the Family Law Rules.

5For reasons that follow, the respondent’s request to dismiss the applicant’s motion to change is granted; an order is made on consent for a minor variation of the existing final support order; and an additional ancillary order is made, also on consent.

DISCUSSION

6The parties separated in 2019. They have two children, ages ten and eight.

7On October 17, 2022, and pursuant to final minutes of settlement, Justice Hassan made a final order pursuant to provincial legislation dealing with all parenting issues and child support. The final order provided for a shared parenting schedule and included the following regarding child support:

a. The “annual or imputed” incomes of the parties were $7,948.59 for the respondent and $18,000 for the applicant;

b. Child support was payable pursuant to s. 9 of the guidelines. The applicant was ordered to pay $263 per month in child support to the respondent;

c. The order provided that s. 7 expenses would be shared, 69 per cent for the applicant and 31 per cent for the respondent, based on the incomes set out in subparagraph (b) above, and with a provision in the order that “… the applicant will have an income of $18,000 imputed to him…” for the purposes of apportioning s. 7 expenses.

8It is apparent on a reading of the order that the applicant’s income of $18,000 was imputed to him for the purpose of both sections 7 and 9 of the guidelines.

9I am satisfied on the evidence that the purpose of imputing income of $18,000 to the applicant was to provide a reasonable estimate of the applicant’s income as a cab driver. For the three years, 2020 to 2022, the applicant’s gross income from his self-employment as a cab driver, each year, exceeded $20,000.

10The imputation of $18,000 was to reflect that there was an issue as to whether all of the business expenses claimed by the applicant should be allowed for child support purposes. The parties’ agreement, as reflected in the minutes of settlement and the final order, represented a reasonable compromise as to the applicant’s gross income from self-employment less his expenses from self-employment.

11In June 2023, the applicant commenced a motion to change the aforesaid order of Justice Hassan. The applicant requested that both children be placed with him, he requested decision-making responsibility for both children, and he requested that the respondent pay to him table amount of child support for both children based on an imputed income equivalent to full-time employment at minimum wage.

12That motion to change proceeding was resolved pursuant to the final order of Justice Tobin dated October 25, 2023. This final order varied Justice Hassan’s order by including an additional parenting term that obligated a party, when travelling without the children, to provide two weeks’ written notice in advance of the travel. The balance of the claims was ordered withdrawn without costs.

13In February 2024, less than four months after Justice Tobin’s final order, the applicant commenced the current motion to change the child support provisions contained in Justice Hassan’s final order. In his motion to change, the applicant claimed that in 2022, his income was $12,054, and he asked the court to reduce his child support to zero based on an income of $12,000, effective July 1, 2023, which was approximately three months prior to the date of Justice Tobin’s final order.

14It is this motion to change that the respondent seeks to dismiss.

15The applicant continues to be self-employed as a cab driver. The respondent had no income in 2023 and 2024, and she continues to have no income. She is enrolled in a college program and has access to OSAP funding. Both parties receive Canada child benefits.

16The Family Law Act, R.S.O. 1990, c. F.3, contains a requirement for a party to obtain leave of the court where a proceeding to vary a support order is commenced within six months of any previous proceeding dealing with support. Section 37(3) states:

Limitation on applications for variation

(3) No application for variation shall be made within six months after the making of the order for support or the disposition of another application for variation in respect of the same order, except by leave of the court.

17As noted earlier, the current motion to change was commenced less than four months after Justice Tobin’s final order disposed of the applicant’s variation proceeding that included child support.

18There was no evidence that the applicant obtained leave of the court prior to bringing his motion to change, and prima facie, the applicant’s motion to change proceeding should be dismissed on that basis.

19However, I find it is in the interests of justice to decide the respondent’s motion for summary judgment as if the requisite leave had been obtained by the applicant. I consider also that the respondent, in her material, did not raise this issue.

20The applicant submits that his annual income from his self-employment ranges from $7,975 to $8,699 for the years 2023 to 2025.

21Where income has been imputed to a party, it is insufficient for the party simply to establish that his or her subsequent declared income is lower than the imputed income. The party has an obligation to address why income had to be imputed in the first place. The party must present evidence of changed circumstances to establish that it is no longer appropriate to use the imputed income, or if income is to be imputed, that a different amount should be used.

22The foregoing was discussed in Trang v. Trang, 2013 ONSC 1980 (Ont. S.C.J.), at paras. 52 and 53:

52. A party who argues that an imputed income level is no longer appropriate must go beyond establishing their subsequent “declared” income. They must address why income had to be imputed in the first place. They must present evidence of changed circumstances which establish that either:

a. It is no longer necessary or appropriate to impute income. The payor’s representations as to income should now be accepted, even if they weren’t accepted before.

Or,

b. Even if income should still be imputed, changed circumstances suggest a different amount is more appropriate.

53. If “declared income” automatically prevailed on a motion to change support, it would defeat the purpose of imputing income in the first place. It might even be a disincentive for payors to participate in the initial court process. They could simply ignore support Applications – as they often do. They could wait to see if the court imputes income, and how much. If dissatisfied with the amount, the payor could later return to court waving their tax returns, to suggest that the original judge got it wrong.

23The above-referenced discussion in Trang was quoted with approval in Gray v. Rizzi, 2016 ONCA 152 (Ont. C.A.), at para. 34.

24The applicant fails to adduce any evidence to explain why it is no longer appropriate to use the imputed income. There is no credible explanation from the applicant as to any changed circumstances regarding his ability to earn an income as a cab driver. In essence, the applicant uses the approach criticized in Trang—“he comes to court waving his tax returns” and suggesting that the final order was wrong.

25While there was some evidence that the applicant had been receiving COVID-19 income replacement benefits prior to the date of the final order made in October 2022, the applicant reasonably would have known that this was a temporary program when he signed the minutes of settlement leading to the final order. I do not accept the applicant’s suggestion that elimination of the COVID-19 income replacement is a change in circumstances relevant to the imputation of income from his self-employment.

26Further, a motion to change is not an appeal: see Gray v. Rizzi, supra, at para. 26, citing Willick v. Willick 1994 28 (SCC), [1994] 3 S.C.R. 670 (S.C.C.).

27For reasons discussed above, I grant the respondent’s motion to dismiss the applicant’s motion to change, but the dismissal is subject to the discussion below regarding child support during periods of time when the respondent is travelling abroad without the children.

28The applicant’s evidence indicated that annually the respondent travels to the Middle East without the children for periods up to two months. This travel is related to reasons including visiting her family. During the respondent’s travel, the children stayed with the applicant.

29In an endorsement of the court dated April 9, 2025, the parties had agreed to an interim order that for 2025, the respondent would e-transfer to the applicant $263 for each month that she was away, while the children remained in the applicant’s care. As noted earlier, this amount is the monthly child support paid by the applicant pursuant to the final order.

30At the hearing of the motion, there was some indication that the respondent did attempt to comply with this order, but that the applicant did not receive the money. While there was no evidence on this point, the parties’ submissions suggested that the respondent may have used the applicant’s older email address which he was no longer using.

31The parties were in agreement for the order below to include a provision that the applicant was not required to pay child support for two consecutive months, to reflect the period of time that the respondent travelled during 2025 while both children remained with the applicant.

32Further on consent, the order requires the respondent, in the future, to return to the applicant any child support she received while travelling without the children.

33Regarding the respondent’s request to require the applicant to obtain leave prior to bringing any further motion to change, I am not satisfied that the facts justify such an order. Also, s. 37(3) of the Family Law Act, as discussed earlier, contains a six-month statutory limit where leave is required to commence a motion to change.

34In relation to costs, the respondent advised the court that she is requesting $1,500 all inclusive, should she be successful on her motion.

35The respondent has achieved success on her motion, but not with respect to her claim to require the applicant to obtain leave prior to bringing any further motion to change. In considering the factors in r. 24(14), including that both parties are of modest financial means, I fix the costs at $750 payable at the rate of $50 per month.

ORDER

36I make the following final order pursuant to the provincial legislation including the Family Law Act:

1. The applicant’s motion to change issued in February 2024 is dismissed subject to paras. 2 and 3 of this order.

2. Paragraph 17 of the final order of Hassan J. dated October 17, 2022 is varied, but only to the minimum extent as follows:

a) Regarding the applicant’s obligation to pay child support to the respondent in the amount of $263 per month on the first day of each month for the support of the parties’ two children, the applicant shall not make any child support payments on June 1, 2026 and July 1, 2026; and

b) Except as provided at subparagraph (a), the final order of Hassan J. dated October 17, 2022 remains in full force and effect.

3. In circumstances where the respondent travels without the parties’ two children, and where both children remain in the care of the applicant while the respondent is travelling, then the respondent shall do the following:

a) If the respondent’s duration of travel exceeds 28 days (4 weeks), then the respondent shall e-transfer to the applicant, on the 28^th day, the sum of $263; and

b) For all travel days thereafter, on her return, the respondent shall e-transfer to the applicant $263 for every additional 28-day period, and for any period less than 28 days, the respondent shall e-transfer the proportionate amount.

4. All other claims in the respondent’s motion are dismissed.

5. The applicant shall pay to the respondent her costs of the motion fixed in the amount of $750, inclusive of HST, payable in the amount of $50 per month commencing June 1, 2026, until paid in full. This costs order shall be deemed to be a support order and shall be enforceable by the Director.