Jamil v. Iqbal, 2014 ONSC 4650 (CanLII)
Blatchford: Maybe he really is a moderate Muslim — that’s the scary thing
June 25, 2014Miletic v. Jaksic, 2014 ONSC 5043 (CanLII)
August 29, 2014CITATION: Jamil v. Iqbal, 2014 ONSC 4650
COURT FILE NO.: FS-12-76175-00
DATE: 20140811
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Zubair Jamil and Sumera Iqbal
BEFORE: Justice Jamie Trimble
COUNSEL: Anser Farooq, for the Applicant
Archana Medhekar, for the Respondent
E N D O R S E M E N T
[1] The husband brings a motion for increased access and sale of the matrimonial home. The Respondent brings a motion seeking exclusive possession of the matrimonial home, and for interim child and spousal support based on imputed income.
[2] For the reasons that follow, I order, on an interim basis, as follows:
- The matrimonial home is to be sold, with the proceeds paid into the trust account of the independent lawyer handling the real estate transaction, pending further order of the Court. It shall be listed within 90 days of the release of these reasons. If the parties cannot agree to the terms and conditions of the listing and sale, they can bring the matter back before the Court.
- The husband’s access to the children shall be on Wednesdays and Fridays, from 4:30 p.m. to 7:30 p.m., and Saturdays from 10 a.m. to 7:30 p.m. The husband shall have the children for the two weeks beginning 9:00 a.m. Sunday, August 17, 2014. The husband shall return the children on Sunday, August 31, 2014 at 7:30 p.m. The husband shall also have the children for the first day of Eid from 9 a.m. to 7:30 p.m.
- The pick-up and drop off of the children shall be held at the main police station for the police precinct in which the wife resides. The police shall be notified of this endorsement, immediately, so they are aware of it and can facilitate the drop off and pick up. The dropping-off parent will wait until s/he sees the picking up parent arrive in the parking lot. The dropping off parent shall leave the children in the lobby of the police station and leave the building whereupon the picking-up parent may enter and retrieve the children. If the police are not prepared to assist in this regard, so long as the bail restrictions on the husband exist, the parents may return to the Court for further order.
- The husband shall pay spousal and child support of $637 and $892 per month, respectively, based on income of $60,000 for the husband and ODSP income for the wife of $4,116. These are payable effective August 1, 2014. Support shall be payable for the periods of September 1, 2012 to December 31, 2012, and July 13, 2013 to current. Arrears to the end of July 2014 are $14,380 for child support and $9,525 in spousal support, based on the incomes above. This is subject to readjustment at trial once final findings are made with respect to both spouses’ incomes. Both parties agree that some money was paid in child support, which should be credited to the husband. They could not agree to the amount. This requires a trial. FRO shall collect and pay support. SDO is to issue.
- As success is mixed, there will be no costs.
BASIC FACTS
[3] The parties were married in Karachi, Pakistan on July 8, 2012 and separated on September 11, 2012, when the wife left the matrimonial home with the children. She returned to the home on January 1, 2013 and lived there, with the husband (although living separate and apart) until she had him charged with assault in July1, 2013. They have two children, aged 5 and 2.
MATRIMONIAL HOME
[4] The matrimonial home is to be sold, with the proceeds paid into the trust account of the independent lawyer handling the real estate transaction, pending further order of the Court. It shall be listed within 90 days of the release of these reasons. If the parties cannot agree to the terms and conditions of the listing and sale, they can bring the matter back before the Court.
[5] During the marriage, the couple bought a home at 5146 Nestling Grove in Mississauga. It is registered in the name of the husband only. Since July 2013, the wife has had de facto exclusive possession of the home. Pursuant to the October 25, 2013 order of Seppi, J., the husband has paid for “the financial needs of the wife and children”. He was ordered to pay the mortgage, which he has done, although with some interruptions that were made good.
[6] The owner of a property, whether the holder of an exclusive interest or a joint interest, has a right to sell the property. The onus is on the wife, in this case, to establish a prima facie case that her claim to have exclusive possession at the husband’s expense, trumps his right to have the sale (see Goldman v. Kudeyla, 2011 CarswellOnt 2860 (Ont. S.C.J.), at paras. 17-18). The person resisting the move on the basis of the best interests of the children has the onus to show that the children would be adversely affected by the move (see Legg v. Draper-Legg, [2004] O.J. No. 606 (S.C.J.) at para. 15).
[7] The husband says that the house must be sold because a) he cannot continue the payments, and b) the wife has not made the case that she has a right to continue to live in the home at his expense. The husband says that the carrying costs of the home total $6,939 per month. He says that, based on his income of about $37,500 anticipated for 2014, $37,500 in 2013 and about $25,000 in 2012, he has incurred $50,100 in debt owing to his father, Mr. Zafar, and Mr. Aleem to pay the mortgage. He says he has incurred $112,000 in other debts including a line of credit, credit cards, car payments, legal expenses and unpaid 2013 income taxes. These sums are not clearly set out in his affidavits. He says that he cannot afford to continue paying house related expenses, let alone pay child and spousal support as well.
[8] The wife says that the husband’s income should be imputed to a much higher amount. She says, variously, that is should be $84,000 and $90,000. She provided an expert valuation of income for support purposes, dated July 14, 2014, saying that the three year average of income for calculating support under the Guidelines is $73,000. In her affidavit, she says that this is the figure on which support should be calculated. Her counsel, in argument, said the figure for spousal and child support should be the imputed 2013 income of $84,000. Based on this income, the wife says that the husband should be able to support the expenses related to the house. The wife also says that the best interests of the children demand that she stay in the house.
[9] According to the financial statements filed by the husband, the cost of carrying the house is approximately $2,850 per month, or about $34,200 per year. If the court accepts that the husband’s income was $37,500, the cost of maintaining the home for the wife and children is almost his total gross income. If the Court accepts that the husband’s imputed income was $73,000, the cost of maintaining the home would be almost 50% of his gross income. Regardless of the husband’s income, keeping the home is not an economic option. The only economic solution is to have it sold (see Kimpton v. Kimpton, 2002 CarswellOnt 5252 (Ont. S.C.J.) at para. 21).
[10] In this case, the wife has not met her onus to give a compelling reason as to why the home should not be sold. She says that moving would be disruptive to her two and five year old children since the house is the only home they have ever known, and moving would disrupt their lives. There is no evidence, aside from the temporal and temporary disruption of the move, that the children would be irreparably or seriously adversely affected by the move. The wife has not even raised a serious triable issue as to the effect of the move on the children. She merely makes the allegation.
[11] The wife says that the home must be kept as security for the husband’s support obligations and her equalization. Neither of these are reasons to keep her in the home. Her security interest is protected by the order paying the net proceeds into the trust account of the real estate solicitor pending further order of the Court.
[12] Finally, the wife says that she is in a “catch 22” situation in that she has no funds to relocate. While there is some force to the argument, she did live with her parents from September to December 2012. Further, funds will be made available pursuant to the support award made below.
INTERIM SPOUSAL AND CHILD SUPPORT
[13] The wife seeks support based on imputed income for the self-employed husband at $73,000 (based on her expert’s report which the Plaintiff, herself, says in her affidavit I should adopt) or $84,400 (based on the 2013 expert imputed income). I declined to accept either of these positions since the expert’s report was served a mere week before the hearing of this matter, due to the husband’s making substantial production only on June 27.
[14] The husband says I should use his line 150 income on his 2013 assessment of $37,500, and impute income to his wife of minimum wage of $21,000. I decline to do either of these. The husband is self-employed through his own corporation. Schedule III to the Guidelines requires an inquiry into his income beyond looking at his line 150 income. I decline to impute income to her. She is the stay-at-home mother of a two and a five year old.
What incomes should I use?
[15] As the husband is self-employed through his own corporation, his line 150 on his 2013 assessment is not reliable given the assessment required under Schedule III to the Guidelines. For 2014, the husband says in his financial statement, that his monthly income year to date is $7,651 per month. This is $53,557 to August 1. He confirmed he is still working, but is concerned that his contracts will not be renewed. It is reasonable to assume, therefore, that he will earn $60,000 this calendar year.
[16] I order that the husband shall pay to the wife spousal support of $636 per month, and child support of $892 per month. This is the mid-point on the DivorceMate calculation using $60,000 income for the husband and ODSP income of $4,116 for the wife.
[17] The parties were apart for three months in 2012, and since July 17, 2013. This brings arrears to the end of July 2014 to $14,380 for child support and $9,525 in spousal support, which is to be paid.
[18] Both parties agree that some money was paid in child support, but could not agree to the amount. The credit to be given to the husband requires a trial. The husband has paid for occupation related expenses (water, hydro, cable, gas) since July 2013. Whether he is entitled to credit for these items or occupation rent requires a trial.
ACCESS
[19] The husband’s access to the children shall be on Wednesdays and Fridays from 4:30 p.m. to 7:30 p.m., and Saturdays from 10:00 a.m. to 7:30 p.m. The husband shall have the children for the two weeks beginning 9:00 a.m. Sunday, August 17, 2014, and shall return the children on Sunday, August 31, 2014 at 7:30 p.m. The husband shall also have the children on the first day of Eid from 9:00 a.m. to 7:30 p.m.
[20] The pick-up and drop off of the children shall be held at the main police station for the police precinct in which the wife resides. The police shall be notified of this endorsement immediately so they are aware of it and can facilitate the drop off and pick up. The dropping off parent will wait until s/he sees the picking up parent arrive in the parking lot. The dropping off parent shall leave the children in the lobby of the police station and leave the building whereupon the picking up parent may enter and retrieve the children. If the police are not prepared to assist in this regard so long as the bail restrictions on the husband exist, the parents may return to the Court for further order.
[21] I make this order as there have been two changes in circumstances since Price J.’s interim order on custody and access of January 8, 2013: the elder child is now in school, and the husband is charged with assaulting his wife. In respect of the latter change, the criminal trial is not complete. The first day of the trial occurred in June, and another day is set in November 2014.
[22] There are two main issues in terms of access. First, is overnight visits to the husband. The husband wants overnight visits Friday to Saturday, and custody for the month of August. The wife opposes this on the basis of the tender years of the children (two and five). With children of such tender years, overnight visits for short periods tend to be disruptive, especially when school is in session. Accordingly, overnight visits during the school year are not permitted. It is reasonable, in my view, to allow overnight visits for the two children for a two week period during the summer.
[23] The second, and more difficult, issue is that of drop off and pick up. Bail conditions, set as a result of the charges following an alleged assault by husband against wife, prevent the husband from being near the wife or the matrimonial home. The husband’s trial on those charges began in June, and continues in November this year. From June 2013, when the charges were laid, until March, 2014, the children were transported between parents by members of the wife’s family. She says that the husband has alienated or frightened all of these people away. Accordingly, because of his bail conditions, he has not seen his children since March. There was an attempt to transfer at a Tim Horton’s. This failed when the parents (pre charges) ended up in an argument.
[24] In argument, the husband suggested that the transfer be done at the local police station. The wife rejected this. She said that the son is afraid of the police, and that the children ‘have seen enough of police’. I suggested several alternatives including asking a member of or official with a local community or ethnic group, or their mosque or temple. The wife rejected these suggestions on the basis that a) she did not want her community to know her problems or b) she needed time to consider it. She said in argument that she would allow anyone her husband selected to effect the transfers. After I pressed her, she admitted that, if she did not approve of that person, she would not allow the children to go with that person. Ultimately, she left the impression that she did not want to facilitate transfer, since she, in effect, could maintain exclusive custody of the children, de facto. Ultimately, the only remedy to the stalemate imposed by the wife is to have the transfer occur at the local police station, as set out in the second paragraph of this section.
COSTS
[25] As success is divided, there shall be no costs.
___________________________
Trimble J.
DATE: August 11, 2014
CITATION: Jamil v. Iqbal, 2014 ONSC 4650
COURT FILE NO.: FS-12-76175-00
DATE: 20140811
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Zubair Jamil and Sumera Iqbal
BEFORE: Justice Jamie Trimble
COUNSEL: Anser Farooq, for the Applicant
Archana Medhekar, for the Respondent
ENDORSEMENT