sept. 11. 2020

Dad Loses 42 Percent of Income: Still No “Urgency” Warranting Motion to Vary Support

Lakhtakia v. Mehra, 2020 ONSC 2670 (CanLII)

The ongoing COVID-19 pandemic continues to impact all Canadian families in many ways. It also continues to stifle the workings of the Family Law courts, which have seen a suspension of operations for all but “urgent” matters in order to optimize the use of precious judicial resources.

According to a Notice issued to the legal profession, for these purposes “urgent” issues include those that relate to the safety and well-being of a child, as well as “dire issues regarding the parties’ financial circumstances”. Keeping these thresholds in mind, it is the presiding judge of the court who must determine whether any matter that comes before him or her is sufficiently urgent to be heard.

In a recent ruling in a case called Lakhtakia v. Mehra, the court heard a father’s ostensibly urgent motion for a temporary order reducing his child support and terminating his spousal support obligations outright. He had been paying in accord with one of numerous previously-issued court orders in his years-long legal dispute with the mother.

He was asking the court for urgent relief because his employer had reduced his income by 42 percent because of the COVID-19 pandemic. He claimed his situation was accordingly “dire” under the governing test, and that he had suffered the requisite “material change in circumstances” (which is required under the Family legislation before a court can order a change to the existing support order).

The court initially entertained the father’s request on the basis that it was “presumptively urgent”, but declined to make a substantive temporary ruling on the support issue. The father had not made out his case as to the requisite level of urgency, and there was nothing truly “dire” about his financial circumstances.

After noting that the father had managed to pay child and spousal support without racking up arrears, the court said:

The [father’s] second affidavit reveals that his motion is a preemptive attempt to prevent what he fears might happen. He states that the motion is urgent because “if I cannot pay the support . . . the [mother] will proceed to suspend my passport and this will cripple me, as my job requires constant international travel”.

In response to this, the court observed:

It is the Family Responsibility Office (“FRO”) and not the [mother] that can procced to suspend a passport. Further there is no evidence that FRO has taken any steps to suspend his passport. This is not surprising because he is not in default of the support order.

… [T]he [father] has savings that he can access, if necessary, to pay support. He owns real estate in Manesar, India and Ontario and has just over $48,000 in a bank account. Although the [father] says he is in “extreme financial need”, he has been paying the support and payments for two mortgages, on which he owes about $1.4M.

Noting that the father was seeking a temporary order, which “are not encouraged and should become the focus of the parties’ litigation”, the court found no extenuating circumstances that warranted allowing the father’s motion, adding:

I conclude that this is not an urgent motion. There is nothing “dire” about the [father’s] financial circumstances. While I appreciate that COVID-19 has created financial challenges for many people, the limited resources of the court during this pandemic must be reserved for the most urgent cases, as the Notices to the Profession direct ….

The court dismissed the father’s motion, and order him to pay the mother’s costs.

For the full text of the decision, see:

Lakhtakia v. Mehra, 2020 ONSC 2670

[This post by Russell Alexander first appeared on FamilyLLB.com on September 8, 2020]