Mustafa v. Mustafa, 2011 ONCJ 651

Brampton Registry No. 907-07 DATE: 11·V·2011 CITATION: Mustafa v. Mustafa , 2011 ONCJ 651 ONTARIO COURT OF JUSTICE BETWEEN: JACQUELINE MUSTAFA Applicant — AND — RAMADAN MUSTAFA Respondent Before Justice Juliet C.

Baldock Heard on March 14, 2011 Reasons for Judgment released on May 11, 2011 Jacqueline Mustafa .............................................................................................. on her own behalf Ramadan Mustafa ................................................................................................ on his own behalf BALDOCK, J.: [ 1 ] This is a motion to change commenced by the respondent, who seeks to vary the child support terms contained in a separation agreement dated April 13, 2005 which has been filed for enforcement. [ 2 ] The parties are the parents of three children: Ariel Aydogan Mustafa, born December 9, 1990 (now aged 20); Guner Deren Mustafa, born October 5, 1992 (now aged 18); and Julia Samantha Mustafa, born October 19, 1999 (now aged 11). [ 3 ] The agreement required that the respondent pay $1,078.00 per month based on his (then) income of $60,154.00.

There is also a term requiring the respondent to provide ongoing financial disclosure to enable the parties to recalculate child support annually. [ 4 ] It is acknowledged that Ariel finished school altogether in December 2009. She had quit school on a full time basis in February 2009 but went back for one semester from September to December 2009. [ 5 ] She turned 18 years of age in December 2008. [ 6 ] I find that she became disentitled to support as of the end of February 2009. [ 7 ] Guner is not currently in school either.

He has made some applications for college, but thus far without success. [ 8 ] He became 18 in October 2010, at which time he moved out of the applicant mother’s home. [ 9 ] Support for Guner therefore terminates as of that date. [ 10 ] The parties appeared in court on March 14, 2011 and each made submissions. The applicant had with her some material

which was not properly before the court. I granted her the opportunity to serve and file her documents and gave the respondent thirty days within which to serve and file his responding material. [ 11 ] On the March 14 th date, I stayed enforcement of the existing support terms and ordered support for the youngest child only, in the amount of $367.00 per month, commencing effective April 10, 2010, based on an imputed income of $40,000.00 per annum.

This order was made on a without prejudice basis and is therefore subject to review. [ 12 ] The applicant mother seeks a retroactive order for increased support for all children based on her belief that the respondent’s income justified a higher amount and on the respondent’s failure to provide ongoing disclosure. She also raised the issue of certain funds which resulted from the sale of the home formerly occupied by the respondent. [ 13 ] I am satisfied that the respondent did not receive any funds on the sale of the home owned by his former spouse.

It is clear that, despite being on title for the purposes of financing, he had no beneficial interest. [ 14 ] The sale did not therefore provide a source of funds from which arrears of child support could be deducted. [ 15 ] I note that the applicant filed the separation agreement for enforcement in May 2007. She did not at that time, or any time since, bring a motion seeking an increase in child support and in fact only did so as a response to the respondent’s motion to change. She did, however, send a letter to the respondent in 2007 asking for disclosure. [ 16 ] The respondent is currently unemployed.

He was terminated from his position with the City of Mississauga and has filed a claim with the Ministry of Labour under the Employment Standards Act. He has received an award of approximately $27,000 with respect to his claim, but it is under appeal and he had yet to receive any funds. [ 17 ] The respondent’s income was as follows: Guideline Support Monthly Year Income for 3 children - for 2 children 2006 $74,856 $1,431 n/a 2007 $88,041 $1,638 n/a 2008 $108,257 $1,956 n/a 2009 $21,610 $ 446 $330 2010 $ 981 0 0 [ 18 ] Support for Ariel is terminated as of February 28, 2009.

If the Guidelines were strictly applied, therefore, the respondent was required to pay child support for three children for two months only, thereafter for two children at the rate of $330.00 a month for ten months. [ 19 ] Based on his income for 2010, no support would be payable for that year. [ 20 ] I am satisfied on the evidence presented by the respondent that he has made a diligent effort to find employment. [ 21 ] Clearly the respondent has had the ability to earn a substantial income.

However, the reality is that, after an extended period of unemployment and given the circumstances of his job loss, his current ability to do so is limited. [ 22 ] I therefore impute income to the respondent in the amount of $20,000.00 which reflects an entry level position, or one paying minimum wage. [ 23 ] The respondent will therefore pay ongoing child support in the amount of $172.00. [ 24 ] As to arrears, the applicant took no steps to enforce the terms of the separation agreement until May 2007.

I therefore do not consider the period prior to that date. [ 25 ] As for 2007, 2008 and 2009, the application of the Guidelines’ increases in payment would generate the following arrears: 2007 - 6 months increase of $560 = $ 3,360 2008 - 12 months increase of $878 = $10,536 2009 - 2 months decrease of $632 = ($ 1,264) - 10 months decrease of $748 = ($ 7,480) 2010 - No payments _____ 0 __

Net difference $ 5,152 [ 26 ] These arrears are of course in addition to any outstanding arrears under the present agreement, which, at the commencement of this proceeding, were approximately $7,500.00. [ 27 ] I find that the respondent has no current ability to pay these arrears, but given his work history and marketable skills, I am confident that he will be able to do so at some future time. [ 28 ] The applicant bore a disproportionate share of the cost of raising the children during periods when the respondent clearly had the ability to contribute at a higher level. [ 29 ] I am aware that from time to time the respondent made additional contributions to the cost of extracurricular activities and items purchased for the children, but this does not negate his obligations under the Guidelines. [ 30 ] He was also under an obligation to provide formal financial disclosure.

Had he done so, the support could have been adjusted on an annual basis, avoiding the build-up of arrears. [ 31 ] For these reasons I make the following order: 1. Support payable by the respondent to the applicant for the children Ariel Aydogan Mustafa, born December 9, 1990, Guner Deren Mustafa, born October 5, 1992, and Julia Samantha Mustafa, born October 19, 1999, is varied as follows: (

a) for the period June 1, 2007 to December 31, 2007 support for three children in the amount of $1,638.00 per month, based on an income of $88,041.00; (

b) for the period January 1, 2008 to December 31, 2008 support for three children in the amount of $1,956.00 per month, based on an income of $108,257.00; (

c) for the period January 1, 2009 to February 28, 2009 support for three children in the amount of $446.00 per month, based on an income of $21,610.00; (

d) for the period March 1, 2009 to December 31, 2009 support for two children (Guner Deren Mustafa, born October 5, 1992 and Julia Samantha Mustafa, born October 19, 1999) only, the sum of $330.00 per month, based on an income of $21,610.00; (

e) for the period January 1, 2010 to December 31, 2010, Nil; (

f) for the period January 1, 2011 and ongoing for one child (Julia Samantha Mustafa, born October 19, 1999) the sum of $172.00 per month, based on an imputed income of $20,000.00. 2. The respondent is to be given credit for all payments made under the parties’ separation agreement dated April 13, 2005 and any subsequent temporary orders. 3. Enforcement of the arrears created by this order, together with any existing arrears, shall be stayed, save and except for any federal garnishments, until June 1, 2012, at which time the respondent shall commence payment at the rate of $150.00 per month.

In addition, the Family Responsibility Office may continue to collect payments by way of federal garnishment. 4. The respondent shall continue to make diligent efforts to obtain full time employment and shall notify the applicant and the Family Responsibility Office immediately upon obtaining work. 5. The respondent is under an ongoing obligation to provide timely financial disclosure to the applicant, so long as he is obligated to support a child. 6. As of June 1, 2013, any restriction on enforcement of arrears by the Family Responsibility Office is lifted. 7. There shall be no order as to costs.

Released: May 11, 2011 ____________________________

Justice J.C. Baldock