Freya Kristjanson

This decision addresses motions for leave to intervene on an appeal from a summary judgment in a child protection case.

The Public Guardian and Trustee (PGT) and Renatta Austin, a lawyer who previously represented the appellant E.K.B. when she was a special party, sought leave to intervene.

The appeal raised significant issues regarding the role of special parties, their representatives, counsel's duties, procedural fairness, and Charter values.

The court found that these issues had a significant public interest element and that both proposed intervenors had an interest in the subject matter and could be adversely affected by the judgment.

Leave to intervene was granted to both the PGT and Ms. Austin, with terms restricting their intervention to specific issues related to their roles and conduct.

The Respondent, Tatiane Steinberg, brought an urgent motion for a preservation/non-dissipation order and security for equalization, spousal, and child support after the Applicant, Jose Gustavo Steinberg, transferred over $4 million in assets to his mother in Brazil.

The court continued the preservation order and ordered the Applicant to post an irrevocable letter of credit for $400,000 to secure equalization obligations, with severe penalties for non-compliance.

The court declined to order security for child and spousal support at this stage due to conflicting evidence on income and the short nature of the motion, but ordered extensive monthly disclosure regarding the alienated assets.

The Applicant was also ordered to pay the Respondent $112,500 plus interest, representing the balance of her share from the matrimonial home sale proceeds, which he had improperly withheld.

The court also commented on counsel's failure to properly estimate motion time and case conference issues.

The respondent mother brought a motion for a publication ban in a family law appeal concerning the vaccination of the parties' children.

The mother sought an interim publication ban and sealing order pending the hearing of the motion.

The court found that the mother had not provided proper notice to the media under the Practice Direction because she used initials instead of the parties' names.

The court granted an interim publication ban to preserve the mother's ability to argue for the children's privacy interests at the full hearing, and directed her to provide proper notice to the media using the parties' names.

The parties, married for 16 years with four children, sought interim orders regarding a section 30 assessment, a Voice of the Child Report, child support, spousal support, and section 7 expenses.

The Respondent sought a section 30 assessment, which the Applicant opposed, suggesting a Voice of the Child Report instead.

The court dismissed the Respondent's request for a section 30 assessment due to insufficient evidence, cost, and delay concerns, particularly given the children's ages and existing professional involvement.

A Voice of the Child Report was ordered for the three youngest children (ages 8, 12, 14) to ascertain their views and preferences, with costs shared equally.

Interim child support was set at $13,945.00 per month, and interim spousal support at $4,910.00 per month, with the Applicant paying 100% of specified section 7 expenses.

The court emphasized the importance of including section 7 expenses and associated tax implications in SSAG calculations.

The retroactive support claim was deferred to trial, and procedural directions were given to expedite the case to trial.

The court awarded the Respondent mother, Evelyn Walsh, full recovery costs of $420,000.00 against the Applicant father, Joshua Louis Goldstein, following a 12-day custody and access trial.

The award was based on the father's bad faith and unreasonable conduct throughout the litigation, including making false allegations, misleading the court, and unduly complicating issues, as well as the mother beating her Rule 18 Offer to Settle.

The court found the father's conduct permeated the litigation, driving up legal fees, and that his truncated Bill of Costs was disingenuous.

The respondent sought to change child and spousal support based on his actual income, arguing he had been paying on an imputed income double his actual earnings for 15 years, leading to significant arrears and outstanding costs awards he could not pay.

The applicant moved to dismiss or strike the respondent's motion due to his non-compliance with previous court orders, including costs orders.

The court balanced the need for compliance with court orders against the primary objective of the Family Law Rules to deal with cases justly, including substantive justice and access to justice.

The court found the respondent had made a prima facie case that he had overpaid support and lacked the resources to pay outstanding costs, making it impossible for him to bring a motion to change if payment was a precondition.

The applicant's motion to dismiss/strike was dismissed, and the respondent's motion to change was allowed to proceed on terms. interesting_citations_summary: > This decision highlights the court's discretion in balancing the principle of litigant compliance with court orders, particularly costs orders, against the fundamental objectives of the Family Law Rules, including substantive justice and access to justice.

It emphasizes that in exceptional circumstances, strict adherence to payment of outstanding costs as a precondition for further litigation may perpetuate injustice and create an insurmountable barrier to justice, especially when a prima facie case of significant overpayment of support is demonstrated.

The court also reiterates the judicial responsibility to ensure fair access and equal treatment for self-represented litigants, citing Pintea v. Johns, 2017 SCC 23. final_judgement: > The Applicant's motion to strike, dismiss, or stay the Respondent's Motion to Change was dismissed.

The Respondent's Motion to Change was allowed to proceed, with leave granted for the Respondent to file a further Form 14 Affidavit and for the Applicant to file a Form 14A Affidavit in response.

The stay from a previous order by Justice Boswell was lifted to allow the Respondent's motion to proceed.

The parties were ordered to schedule a Case Conference to timetable remaining steps. winning_degree_applicant: 5 winning_degree_respondent: 1 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2019 decision_number: 2823 file_number: "FS-14-19316-0001" source: "https://www.canlii.org/en/on/onsc/doc/2019/2019onsc2823/2019onsc2823.html" cited_cases: legislation: - title: "Family Law Rules, O. Reg. 114/99" url: "https://www.ontario.ca/laws/regulation/990114" - title: "Child Support Guidelines, O. Reg. 391/97" url: "https://www.ontario.ca/laws/regulation/970391" case_law: - title: "Diciaula v. Mastrogiacomo, 2006 ON SCDC 11928" url: "https://www.canlii.org/en/on/onscdc/doc/2006/2006canlii11928/2006canlii11928.html" - title: "Diciaula v. Mastrogiacomo, 2008 ONSC 29105" url: "https://www.canlii.org/en/on/onsc/doc/2008/2008canlii29105/2008canlii29105.html" - title: "Diciaula v. Mastrogiacomo, 2009 CarswellOnt 1981 (S.C.J.)" - title: "Diciaula v. Mastrogiacomo, 2014 ONSC 6196" url: "https://www.canlii.org/en/on/onsc/doc/2014/2014onsc6196/2014onsc6196.html" - title: "Vetro v. Vetro, 2013 CarswellOnt 5400 (C.A.)" - title: "Biniaminov v. Biniaminov, 2018 CarswellOnt 15253 (SCJ)" - title: "Levely v. Levely, 2013 ONSC 1026, at para. 12" url: "https://www.canlii.org/en/on/onsc/doc/2013/2013onsc1026/2013onsc1026.html#par12" - title: "Peerenboom v. Peerenboom, 2018 ONSC 5796 (Sup Ct)" url: "https://www.canlii.org/en/on/onsc/doc/2018/2018onsc5796/2018onsc5796.html" - title: "Fatahi-Ghandehari v. Wilson, 2018 ONSC 5579" url: "https://www.canlii.org/en/on/onsc/doc/2018/2018onsc5579/2018onsc5579.html" - title: "Moran v. Cunningham, 2009 CarswellOnt 3974 (Sup Ct)" - title: "Van v. Palombi, 2017 ONSC 2492 (Div Ct)" url: "https://www.canlii.org/en/on/onscdc/doc/2017/2017onsc2492/2017onsc2492.html" - title: "Pintea v. Johns, 2017 SCC 23, [2017] 1 S.C.R. 470" url: "https://www.canlii.org/en/ca/scc/doc/2017/2017scc23/2017scc23.html" keywords: - Family Law - Motion to Change - Child Support - Spousal Support - Imputed Income - Arrears - Costs Orders - Access to Justice - Self-represented Litigant - Family Law Rules areas_of_law: - Family Law - Civil Procedure --- # Court File and Parties **COURT FILE NO.:** FS-14-19316-0001 **DATE:** 20190506 **SUPERIOR COURT OF JUSTICE - ONTARIO** **RE:** Andreina Diciaula, Applicant **AND:** Giuseppe (Joe) Mastrogiacomo, Respondent **BEFORE:** Madam Justice Kristjanson **COUNSEL:** Lorna Yates, for the Applicant Mr. Mastrogiacomo, Self-represented **HEARD:** April 2, 2019 --- # Endorsement [1] The Respondent, Giuseppe (Joe) Mastrogiacomo, has brought a motion to change child and spousal support based on his actual, not imputed, income, to terminate spousal support, and to terminate child support when the children finish their first post-secondary degree.

Joe and the Applicant, Andreina Di Ciaula, separated in 2001.

Since 2004, Joe has been paying child and spousal support based on an imputed income of $90,000.

This is double what Joe asserts he actually earned as a T4 employee between 2004 and 2018, as set out in his tax returns and notices of assessment.

The Family Responsibility Office (FRO) is enforcing arrears of $137,962.21, and there are outstanding costs awards of over $50,000.00 (some of which are being enforced by FRO).

Joe argues, essentially, that he is caught in a Catch-22: for 15 years he has been paying support on an imputed income which is double what he earns; his income is garnished at 50% and he has no assets; and he cannot pay the outstanding costs awards and thus bring a motion to change so long as this continues. [2] Andreina has brought a motion to dismiss or strike Joe’s motion to change as he is in breach of numerous court orders, including costs orders.

She argues that persistent disregard of the court’s processes should result in the striking of Joe’s motion to change.

In the alternative, Andreina argues that the motion to change should be stayed until Joe has complied with the final court order and the outstanding costs orders, as to allow otherwise would constitute an abuse of process. [3] The Family Law Rules have as their primary objective to deal with cases justly, including by ensuring that the process is fair to all parties, and cases are dealt with expeditiously, cost-effectively, and proportionately.

Compliance with court orders, including cost orders, is an essential part of the family justice system, and courts will generally not allow a litigant to take a next step without paying overdue costs awards.

That said, justice and fairness cannot be achieved without a firm foothold in reality.

Requiring the payment of all costs orders before addressing the motion to change means, effectively, that Joe will never be able to bring a motion to change despite the claim by Joe that in the last 15 years, he has never earned the imputed income upon which the underlying orders are based.

On the record before me, there is a concern that Joe may have overpaid child and spousal support by a significant amount. [4] Requiring all outstanding costs orders to be paid before a party can take another step in litigation is generally just – it ensures that parties live up to their obligations and comply with orders, which is essential to the justice system.

That is the interest that Andreina seeks to protect.

On the other hand, Joe argues that fifteen years of paying child support on the basis of an income which is twice what a person earns is substantively unjust, has interfered with his ability to pay outstanding costs awards, and must be taken into account in the exercise of discretion. [5] The goal is to strike a balance between the competing interests advanced before me.

In the exceptional case – and this is one – insistence on payment of all outstanding costs awards before a motion to change can be brought risks perpetuating an injustice, constitutes a barrier to access to justice, and presents a risk to the proper administration of justice.

I have considered relative prejudice, and that Joe has established a prima facie case that the motion to change is potentially meritorious.

I also consider the length of time – 15 years of paying child support on an imputed income which is twice what Joe says he has made.

I consider the lack of assets, and the lack of credit, and find that Joe will never be able to pay the outstanding costs orders and arrears.

I find that in these circumstances, it is in keeping with the primary objective of dealing with cases justly to allow Joe to proceed with the motion to change, as no other procedure is available to Joe that would afford meaningful redress. [6] In order to deal with this case justly, I exercise my discretion to allow Joe to proceed to argue his motion to change on terms as set out below. # Issues (1) Should Joe’s motion to change be dismissed, struck or stayed on the grounds that he has failed to comply with court orders, including costs orders? (2) If not, what terms should apply? # Facts [7] In 2001, the parties separated after three years of marriage.

They have two children, born in 1997 and 1998.

AB is finishing an undergraduate degree in April, 2019; CD is in her third year. [8] Joe’s pleadings were struck in 2003 for failure to make financial disclosure.

Andreina obtained a final order for child and spousal support in 2004 following an uncontested trial at which Joe’s income was imputed at $90,000.

Spousal support was set at $660 per month, and child support at $1,136 per month.

Costs were fixed at $15,700.00, enforceable as an incident of support by FRO. ## Key Litigation Following the Undefended Trial [9] Joe sought to set aside the final order in 2005.

Justice Timms set aside the final order in its totality, reinstated Joe’s pleadings, and set child support based on Joe’s stated income.

Justice Timms’ order was set aside by the Divisional Court on appeal in 2006 on jurisdictional grounds, and the final order was restored: [Diciaula v. Mastrogiacomo, 2006 ON SCDC 11928](https://www.canlii.org/en/on/onscdc/doc/2006/2006canlii11928/2006canlii11928.html).

At that time, the Divisional Court suggested that rather than moving to set aside the striking of pleadings or the 2004 final order, Joe should seek to vary the order on the grounds of material change.

The Divisional Court held “because the final order is based on imputed income, a motion to vary in which he makes the full and candid and complete disclosure which he has to date been reluctant or unable to make is available to him”: para. 19.

The Divisional Court awarded costs of $12,500, enforceable as an incident of support by FRO. [10] In 2007, Joe brought a motion to change the access provisions in the 2004 final order.

Andreina brought a motion to strike, stay or dismiss the motion to change the access provisions on the basis of his default on support payments, and she argued that Joe should not be given a hearing until his defaults were cured.

The 2007 access motion to change was stayed by Justice Boswell in 2008: [Diciaula v. Mastrogiacomo, 2008 ONSC 29105](https://www.canlii.org/en/on/onsc/doc/2008/2008canlii29105/2008canlii29105.html).

Justice Boswell found Joe was in substantial default of a number of court orders, including significant costs orders, holding at para. 17 that: > Until the Respondent has committed himself to complying with the outstanding judgments against him, he should not be free to continue to inflict litigation expenses on the Applicant.

That said, the Respondent has dug himself a significant hole.

It may take him a significant period of time to dig himself back out.

At some point, should he be able to demonstrate that he is making a concerted and genuine effort to comply with the outstanding court orders against him…he should be at liberty to pursue expanded access. [11] Joe’s 2007 access motion to change was stayed on conditions including that Joe develop a “reasonable and workable plan for the repayment of outstanding arrears and costs”, and pay costs of the motion of $5,000.00.

Joe did not meet these conditions. [12] Joe brought a new motion to change in 2008, this time to vary the child and spousal support provisions of the final order, and to rescind and expunge arrears.

Justice Boswell found that Joe had failed to comply with the conditions set on the motion to change access, and he dismissed the 2007 motion to change access.

Justice Boswell stayed the 2008 support motion to change pending payment of outstanding costs awards: Diciaula v. Mastrogiacomo, 2009 CarswellOnt 1981 (S.C.J.), and set costs at $6,500, which included the $5,000 ordered on the 2007 access motion to change. [13] In 2009, Justice Gilmore heard a default hearing brought by the Director, FRO, and made an order incarcerating Joe but staying the warrant of committal as long as Joe paid $500 per month towards arrears.

Costs were set at $1,500.

Joe’s income continues to be garnished by FRO, presumably including a payment towards arrears. [14] In 2013, Joe brought a second motion to change child and spousal support.

Justice Perell, in [Diciaula v. Mastrogiacomo, 2014 ONSC 6196](https://www.canlii.org/en/on/onsc/doc/2014/2014onsc6196/2014onsc6196.html), struck Joe’s support motion to change.

Justice Perell held that Joe was “seriously in arrears of support payments” and “in default of paying several costs awards”, and that since Joe had not paid the costs awards ordered by the Divisional Court and by Justice Boswell, “to allow the current Rule 15 Motion to proceed would be an abuse of process.” Justice Perell held that Joe “should have moved to lift the stay of Justice Boswell’s Order, or he should have complied with the Order, which he has failed to do”: para. 41.

Justice Perell and ordered costs of $11,719.02. [15] Joe appealed to the Court of Appeal; the appeal was not perfected, and was dismissed with costs of $750.00. [16] Joe then initiated this motion to change in Newmarket in 2018.

However, the file had been traversed to Toronto in 2014.

As a result, Justice Kaufman directed that this motion to change be traversed to Toronto, and ordered Joe to pay costs of $1,118.70. [17] In this motion to change, Joe seeks: * Child support going forward be set at $614 per month in accordance with his salary of $60,000, * Child support cease once each child finishes an undergraduate degree; * Retroactive adjustment to child support as of January 1, 2010 based on his actual income, including an adjustment to arrears of $61,332, * Retroactive termination of spousal support as of December 31, 2009, * FRO garnishment be set at 35% not 50% of income. ## Outstanding Costs Awards [18] Joe has not paid any costs awards since 2004, although some of the awards are being enforced by FRO as an incident of support.

The outstanding costs awards total $50,287.72 (not including interest), of which $29,700 costs are being enforced by FRO as an incident of support: * 2004 Final Order – Undefended Trial: Costs of $15,700 plus interest (4%; enforced by FRO) * March, 2005 adjournment motion: Costs of $500 plus interest (4%) * Divisional Court 2006: Costs of $12,500 plus interest (5%; enforced by FRO) * 2008/2009 Justice Boswell Order: $6,500 plus interest (4%) * 2009 Justice Gilmore Order: $1,500 in favour of Director, FRO (enforced by FRO) * 2014 Justice Perell Order: $11,719.02 plus interest (3%) * 2015 Court of Appeal: $750.00 * 2018 Justice Kaufman Transfer Order: $1,118.70 plus interest (3%). ## Joe’s Income [19] FRO has been enforcing the 2004 order based on imputed income of $90,000.

Joe has been an employee since 2004.

His returns show employment income and some employment insurance income during periods of unemployment.

Joe’s actual income for these years, based on CRA Notices of Assessment and pay stubs in the record, has been: * 2004: $42,433 * 2005: $48,230 * 2006: $52,499 * 2007: $55,199 * 2008: $52,199 * 2009: $46,176 * 2010: $48,600 * 2011: $54,760 * 2012: $41,823 * 2013: $28,882 * 2014: $5,511 * 2015: $14,538.51 * 2016: $42,000 * 2017: $42,000 * 2018: $60,000 (as of August, 2018, based on employment contract) [20] In her affidavit, Andreina states that Joe “has made no effort to pay down the arrears or costs”, although she acknowledges that FRO has garnished 50% of Joe’s pay from November, 2004 to present. [21] Andreina asserts that: (a) Joe is underemployed, (b) he has recently changed his employment which occurs frequently, often when the FRO begins enforcement actions, and (c) Joe has “historically colluded with his employer to reduce his declared income for support purposes.” This will all be determined on evidence on the motion to change.

On this motion to strike, I place no weight on the bald allegation that Joe has “colluded” with various employers over 14 years, to understate income, and simply note that this would require evidence on the motion to change rather than the bald allegations in this record.

Whether Joe is intentionally underemployed has not been established on this motion, but would be an issue on the motion to change, to be established on the basis of evidence. [22] Joe’s income tax returns, notices of assessment and affidavit establish on this motion a lengthy and relatively consistent income history over 15 years, aside from a period of employment between 2013 and 2015.

Joe’s employment contract with his new employer as of August, 2018 is in the materials, and shows full time employment income of $60,000.

Based on the record on this 2019 motion, Joe’s income has been about half of the imputed income of $90,000 since 2004. [23] Motions to change may have retroactive effect, and arrears may be reduced on a motion to change.

Based on his income, Joe estimates he has overpaid child support by $84,863 since 2004, and by $61,332 since 2010 alone.

If that were established on a motion to change, then Joe would have the ability to pay all outstanding costs orders. ## Joe and Andreina: Summary of Finances [24] Joe drives a 2006 car, and has no savings.

His income increased in August, 2018 from his previous job of $42,000 to $60,000, a substantial increase.

After tax, he takes home $3,775.58 per month, of which $1,796 per month is garnished by FRO to pay for his support arrears.

He pays rent of $550 per month; keeps up life insurance; and has very modest expenses.

In addition to the FRO arrears, he owes personal loans of $53,800 to family and a friend relating to past legal fees.

He has asked and cannot borrow further funds from friends and family.

He has filed a credit report showing FRO arrears of $135,704, and his evidence is that institutional lenders will not loan him any funds because of these arrears. [25] Andreina’s income was slightly higher than Joe’s in 2016 ($43,509) and 2017 ($42,659), and will be lower than Joe’s in 2018.

Andreina contributes to the OMERS pension plan, which was not valued on her financial statement.

She drives a 2013 car, and does not have savings.

She owes personal loans of $64,000 to family.

Andreina made a consumer proposal in Spring, 2014, and does not have access to credit as a result. ## The Children: Table Support [26] AB will complete his undergraduate degree by May, 2019.

CD is in the third year of a four year undergraduate program.

In the motion to change, Joe seeks to terminate his child support obligations for each child upon completion of an undergraduate degree. [27] In her factum, Andreina states that “both children are living away from home.” Given that there is a motion to change, whether full residential child support was or remains payable is an open question, and Andreina should clarify the residential status of the children for the previous four years, and CD’s anticipated residential status for 2019-2020. ## Conclusion [28] On the record before me, I find that: * Joe has made out a prima facie case that since 2004, he has never made the level of income imputed to him; * The parties had a three year marriage, and the spousal support obligation has continued for 16 years; * Joe has made out a prima facie case that he does not have the assets or resources to discharge the outstanding costs orders before bringing a motion to change, that he is unable to borrow from friends and family, and that he is unable to borrow from institutional lenders because of the FRO arrears noted on his credit report; * I find that there is no reasonable prospect that Joe will be able to pay the outstanding costs orders, and as a result, no reasonable prospect that he will be able to bring a motion to change if payment of outstanding costs orders is a pre-condition. # Analysis ## Should the motion be dismissed due to the Father’s failure to comply with Court Orders? [29] Andreina argues that the motion should be dismissed due to Joe’s failure to comply with court orders; he is in arrears of $137,962.21, and owes costs of $50,287.72 (some of which are included in the arrears).

Andreina quite rightly submits that non-compliance with court orders is not an acceptable litigation strategy, and that the [Family Law Rules](https://www.ontario.ca/laws/regulation/990114) specifically contemplate sanctions for such non-compliance in Rules 1(8) through (8.4).

In addition, the Court has the inherent jurisdiction to control its own processes.

Joe’s non-compliance with the Orders is clear.

She submits that Justice Boswell and Justice Perell had all of the relevant information about Joe’s income, and he advanced the same claims regarding inability to pay. [30] Andreina relies on clear jurisprudence in the Court of Appeal and at this court that persistent non-compliance with court orders will generally result in the striking of pleadings, although she acknowledges that the remedy is discretionary: Vetro v. Vetro, 2013 CarswellOnt 5400 (C.A.); Biniaminov v. Biniaminov, 2018 CarswellOnt 15253 (SCJ). [31] I agree generally with Justice Chappel in [Levely v. Levely, 2013 ONSC 1026, at para. 12](https://www.canlii.org/en/on/onsc/doc/2013/2013onsc1026/2013onsc1026.html#par12), that family court proceedings should not become “a destructive tool which one party wields and manipulates in order to create further financial and emotional hardship for the other party,” and lamenting the “futile money pit of failed justice.” [32] Andreina cites clear authority that the ability to pay costs is only relevant upon the making of the order, not when compliance is in issue, and that “impecuniosity is not a defence to an application to strike pleadings based on a failure to honour court orders”: [Peerenboom v. Peerenboom, 2018 ONSC 5796 (Sup Ct)](https://www.canlii.org/en/on/onsc/doc/2018/2018onsc5796/2018onsc5796.html); [Fatahi-Ghandehari v. Wilson, 2018 ONSC 5579](https://www.canlii.org/en/on/onsc/doc/2018/2018onsc5579/2018onsc5579.html), Moran v. Cunningham, 2009 CarswellOnt 3974 (Sup Ct); [Van v. Palombi, 2017 ONSC 2492 (Div Ct)](https://www.canlii.org/en/on/onscdc/doc/2017/2017onsc2492/2017onsc2492.html). [33] At the same time there are countervailing factors, including the primary objective of the [Family Law Rules](https://www.ontario.ca/laws/regulation/990114), which is to deal with cases justly.

In part, this objective is met by ensuring that the process is fair to all parties and cases are dealt with expeditiously, cost-effectively, and proportionately.

But dealing with a case justly also encompasses substantive justice – a just outcome, in which those similarly situated are treated similarly.

The [Child Support Guidelines](https://www.ontario.ca/laws/regulation/970391) seek to establish a substantively just outcome by setting child support payments based on income.

Under the 2017 Child Support Guidelines, Ontario payors earning $90,000 annually pay $1,351.00 monthly for two children, while payors earning $42,000 (as Joe states he did in 2017) pay child support of $624.00 per month.

At some point, paying child support on the basis of an income which is twice what a person earns becomes substantively unjust, and must be taken into account in the exercise of discretion. [34] Compliance with court orders, including cost orders, is an essential part of the family justice system, and courts will generally not allow a litigant to take a next step without paying overdue costs awards.

That said, justice and fairness cannot be achieved without a firm foothold in reality.

Requiring the payment of all costs orders before addressing the motion to change means, effectively, that Joe will never be able to bring a motion to change despite the claim by Joe that he has not ever earned the imputed income upon which the underlying orders are based.

If support had been based on his income, Joe argues he would have had more than enough resources to pay all outstanding costs orders. [35] Requiring all outstanding costs orders to be paid before a party can take another step in litigation is generally just – it ensures that parties live up to their obligations and comply with orders, which is essential to the justice system.

That is the interest that Andreina seeks to protect.

On the other hand, Joe argues that fifteen years of paying child support on the basis of an income which is twice what a person earns is substantively unjust, has interfered with his ability to pay outstanding costs awards, and must be taken into account in the exercise of discretion. [36] The goal is to strike a balance between the competing interests advanced before me.

In the exceptional case – and this is one – insistence on payment of all outstanding costs awards before a motion to change can be brought risks perpetuating an injustice, constitutes a barrier to access to justice, and presents a risk to the proper administration of justice.

I have considered relative prejudice, and that Joe has established a prima facie case that the motion to change is potentially meritorious.

I also consider the length of time – 15 years of paying child support on an imputed income which is twice what Joe says he has made.

I consider the lack of assets, and the lack of credit, and find that Joe will never be able to pay the outstanding costs orders and arrears.

I find that in these circumstances, it is in keeping with the primary objective of dealing with cases justly to allow Joe to proceed with the motion to change, as no other procedure is available to Joe that would afford meaningful redress. [37] On the evidence before me, Joe has made a prima facie case based on income tax returns and notices of assessment that he has overpaid child and spousal support by a significant amount for 14 years, and that he does not have assets to pay the outstanding costs orders nor access to credit given the size of the outstanding arrears and the continuing garnishment by FRO.

I exercise my discretion to allow Joe to proceed to argue his motion to change on terms as set out below. ## Should the motion be dismissed on its merits? [38] Andreina also argues that the motion should be dismissed on its merits, arguing that Joe has the ability to pay retroactive and ongoing child, spousal support and costs orders, and simply refuses to do so. [39] On the record before me, given the CRA Notices of Assessment and Joe’s most recent employment contract, as well as Joe’s financial statement, I do not find that the “outcome of the father’s motion to change is a foregone conclusion,” as argued by Andreina.

Rather, Joe has made out a prima facie case that his income is not at the level imputed to him in 2004.

He has made out a prima facie case that he does not currently have the ability to pay retroactive and ongoing child, spousal support and costs orders, he has no assets, and is unable to obtain loans from institutional lenders because of the size of the outstanding FRO arrears.

He has also given evidence that he owes money to friends and family, and has asked and is unable to borrow from friends and family.

Given Joe’s income, the arrears, and the 50% garnishment by FRO, the reality is that Joe will never be able to pay those orders.

If Joe is able to establish that there has been a material change in income, this could constitute a material change which could reduce arrears owing, and create the financial ability to pay the costs orders. [40] Andreina also argues that Joe is attempting to circumvent Justice Boswell’s 2009 Order staying the 2008 motion to change by bringing a fresh motion to change, and the 2013 motion to change was struck until Joe complied with the 2009 Order of Justice Boswell or sought to lift the stay.

She I do not find that Joe is seeking to circumvent the order of Justice Boswell on the 2008 motion to change.

Joe does not seek to rescind his obligation to pay the outstanding costs orders; rather, he seeks to restructure the financial obligations he asserts are based on an unfair imputed income order, so that he has the financial ability to discharge his costs obligations and pay support obligations that should be owed.

He has brought a motion to change child support as of January 1, 2010.

The 2008 motion before Justice Boswell dealt with child support prior to that time.

Joe has brought a motion to terminate spousal support as of December 31, 2009, which post-dates Justice Boswell’s order. [41] In 2013, Justice Perell identified that the proper route would have been to seek to lift Justice Boswell’s stay.

I am not sure that this is necessary, since the March 25, 2009 Order of Justice Boswell, paragraph 2, provides: “The Respondent’s Motion to Change dated October 31, 2008 (support) is stayed pending payment of the outstanding costs awards, pursuant to Rule 14(23) of the [Family Law Rules](https://www.ontario.ca/laws/regulation/990114).” As I read it, the stay only applies to the 2008 motion to change, but I appreciate that this is a complicated concept for a self-represented litigant.

If necessary, I find that this relief is implicit in the motion to change brought by Joe, and lift the stay set out in para. 2 of the March 25, 2009 Order to allow Joe to argue his 2018 Motion to Change, which seeks relief in the period December 31, 2009 following. # Additional Procedural Issue [42] The Confirmation of Motion filed by Andreina referred to materials relied on by her in the previous 2014 Motion to Change Record, and contained a notation that “The Mother references materials in her Notice of Motion that are found in the Continuing Record but that the Court does not necessarily need to review prior to the hearing of the long motion.” The Confirmation states that the materials would be provided on a USB stick.

On the return date, no USB stick was provided to the Respondent and there was no laptop in the Court.

As a result, I ordered and reviewed the additional documents from the 2014 Motion which were referred to in the Applicant’s Confirmation of Motion, as well as Continuing Record, Volume 19, Tab 2, which the Applicant handed up. # Self-Represented Litigant [43] Joe is a self-represented litigant.

Judges have a responsibility to ensure that self-represented persons are provided with fair access and equal treatment by the courts, and to facilitate access to justice. [44] In [Pintea v. Johns, 2017 SCC 23, [2017] 1 S.C.R. 470](https://www.canlii.org/en/ca/scc/doc/2017/2017scc23/2017scc23.html), the Supreme Court of Canada endorsed the Canadian Judicial Council's Statement of Principles on Self-Represented Litigants and Accused Persons (2006), which include the statements that: 1.

Judges have a responsibility to inquire whether self-represented persons are aware of their procedural options, and to direct them to available information if they are not.

Depending on the circumstances and nature of the case, judges may explain the relevant law in the case and its implications, before the self-represented person makes critical choices. 2.

In appropriate circumstances, judges should consider providing self-represented persons with information to assist them in understanding and asserting their rights, or to raise arguments before the court. 3.

Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented parties. [45] In light of these principles, I am advising Joe that all information which he believes is relevant and important to the motion to change argument must be set out in an affidavit.

At the hearing of the motion, Joe attempted to provide additional information, including that he is not qualified as a Chartered Accountant, and that he has had three employers since 2004.

I told Joe that I could not take into consideration anything not contained in an affidavit in the Continuing Record, and I have not considered any information not contained in the affidavit evidence on this motion.

Therefore, I am advising Joe that he must carefully consider all relevant information, and include this evidence in a Form 14 Affidavit.

I give Joe leave to file a Form 14 affidavit containing supplementary information. [46] Neither party filed the most recent Director’s Statement of Arrears from the Family Responsibility Office.

Joe is to file the updated Statement of Arrears from the Family Responsibility Office with his Form 14 Affidavit. [47] I also refer Joe to important sources of legal information about how to bring and respond to a motion to change in family law.

These include: * The “Guide to Process for Family Cases at the Superior Court of Justice”, at [http://www.ontariocourts.ca/scj/news/publications/guide-family/](http://www.ontariocourts.ca/scj/news/publications/guide-family/) * Additional resources on the Superior Court of Justice Website at [http://www.ontariocourts.ca/scj/family/resources/](http://www.ontariocourts.ca/scj/family/resources/) * Additional resources available in person at the Family Law Information Centre at 393 University Avenue, 9th Floor * Case and statutes available for free at [https://www.canlii.org](https://www.canlii.org) # Costs [48] Although Joe is the successful party, in light of unpaid costs orders, I am not ordering Andreina to pay costs of this motion. # Order and Terms [49] Order to go as follows: 1.

The Applicant’s motion to strike, dismiss or stay the Motion to Change is dismissed, and the Respondent’s Motion to Change is to proceed; 2.

If necessary, the stay set out in the March 25, 2009 Order of Justice Boswell, paragraph 2, is lifted for the purpose of allowing the Respondent to proceed with his Motion to Change. 3.

The Respondent is given leave to file a further Form 14 Affidavit on the Motion to Change no later than May 31, which should include all information that he intends to rely on in the Motion to Change, including the most recent Director’s Statement of Arrears from the Family Responsibility Office. 4.

The Applicant has leave to file a further Form 14A Affidavit in response, by June 21, 2019. 5.

The Applicant is to advise the Respondent by letter or e-mail as to the residential status of the two children for the past four years (if either of them have resided away from home in this period, and the dates) by May 14, 2019. 6.

After conferring on dates, the parties are to schedule a Case Conference on a mutually agreeable date which is to be no later than July 15, to timetable all remaining steps needed to schedule argument on the motion to change.

The parties do not have to file Case Conference Briefs, but they must each file a proposed timetable of necessary steps, with dates, to take them to argument on this Motion to Change before the end of December, 2019, together with a list of all orders being sought at the Case Conference.

The Applicant is to file this Endorsement for the Case Conference. 7.

Counsel for the Applicant is to take out the Order, and approval of the Respondent to the form and content of the Order is dispensed with.

Justice Kristjanson Date: May 6, 2019

The applicant mother sought to vary child support provisions from a 2009 final order, including retroactive table support and section 7 expenses, for two children.

The respondent father sought to terminate support for the eldest child and reduce support for the younger child due to retirement and a second family.

The court found the father's increased income a material change but denied extending support for the eldest child beyond age 22 as per the original order.

Retroactive table support was awarded from 2014 and section 7 expenses from December 2015, balancing the parties' mutual disclosure failures and the father's blameworthy conduct with the hardship a large retroactive award would cause him in retirement.

The court also rejected the father's request to pay below table support, applying the "first-family-first" principle.

The Applicant sought to amend her application to change the date of separation from September 2005 to December 2012, which would bring her equalization claim within the limitation period.

In the alternative, she sought to amend her application to seek an extension of the limitation period.

The court dismissed the motion to change the separation date, finding no triable issue, no reasonable explanation for the change in position, and significant prejudice to the Respondent.

The court granted leave to amend the application to seek an extension of the limitation period, but the merits of the extension were not decided.

The Applicant was ordered to pay costs for the motion and for the Respondent's amended answer.

The applicant sought equalization of net family property, but the respondent argued the claim was statute-barred due to a limitation period, asserting an earlier separation date.

The court bifurcated the issue of the date of separation.

The applicant claimed reconciliation and cohabitation from May 2009 to January 2011, while the respondent maintained separation since August 2004 with no reasonable prospect of resuming cohabitation.

The court found the parties separated in August 2004 and did not reconcile, dismissing the applicant's claim regarding the later separation date.

The mother brought a motion to change child support and custody.

The court found a material change in circumstances due to the father's effective abandonment of the son and his departure from Canada shortly after a consent order.

The father's income was imputed at $50,000 per year, as his pursuit of a veterinary degree at age 54 was deemed an unreasonable educational need that did not justify his intentional under-employment.

Retroactive child support and section 7 expenses were ordered for both children, dating back to January 1, 2016.

The father's claim for previously stayed retroactive support was dismissed.

The applicant sought to vary a 2008 child support order to $0, retroactively to January 1, 2016, based on alleged unemployment.

The respondent opposed.

The Ontario Superior Court of Justice, in a confirmation hearing of a provisional order from Alberta, declined to confirm the reduction.

The court found the applicant failed to establish a material change in circumstances due to grossly inadequate financial disclosure, lack of evidence regarding job termination or search efforts, and a history of non-compliance with support obligations.

The court imputed income to the applicant, dismissed his variation application, and ordered the original 2008 child support order to continue in full force, awarding costs to the respondent.

The applicant commenced a family law application for support and equalization.

When the respondent failed to file an answer within 30 days, the applicant brought a motion in writing without notice to note the respondent in default and proceed to an undefended trial.

The court dismissed the motion, emphasizing that the primary objective of the Family Law Rules requires ensuring the process is fair and that the respondent has received proper notice.

The court directed the applicant to attempt communication, serve the endorsement and a guide to family cases, and schedule a case conference on notice.

The self-represented plaintiffs brought three separate actions against two hospitals, seven physicians, and the College of Physicians and Surgeons of Ontario, alleging medical malpractice, falsification of records, breach of privacy, and improper regulatory investigations relating to psychiatric treatment provided between 2004 and 2012.

The defendants brought motions for summary judgment and motions to strike the claims.

The Superior Court of Justice granted the motions and dismissed all three actions.

The court found that the claims against the hospitals and physicians were statute-barred under the Limitations Act, 2002, as the plaintiffs had discovered the claims years before commencing the actions.

The court also held that the hospitals were not vicariously liable for the actions of independent physicians.

The claims against the College were struck because the College owes no private law duty of care to complainants, and the actions constituted an abuse of process by attempting a collateral attack on the statutory complaints and review process.

The applicant, a former spouse, sought preservation and non-depletion orders under sections 12 and 40 of the Family Law Act, respectively, to restrain the respondent from dissipating assets.

These orders were contingent on setting aside a comprehensive separation agreement due to alleged misrepresentation and non-disclosure.

The court dismissed the motion, finding the applicant lacked standing for a section 40 order as a divorced spouse and failed to meet the stringent Mareva injunction test, which was deemed applicable given the contingent nature of her claims for equalization and support.

The court found no strong prima facie case to set aside the agreement, no evidence of asset dissipation to avoid judgment, and no undertaking as to damages.

The Father (Applicant) was awarded full recovery costs of $249,765.47 against the Mother (Respondent) following a 12-day trial.

The court found the Mother's conduct throughout the litigation to be unreasonable and in bad faith, characterized by false allegations of domestic violence, obstruction of access, misleading evidence, and repeated changes of counsel causing delay.

The Father had also exceeded all his offers to settle, which were reasonable and severable, unlike the Mother's non-severable and less favourable offers.

The costs award was justified on the bases of bad faith, unreasonable conduct, and the Father beating his Rule 18 offers to settle, serving to indemnify the successful litigant, encourage settlement, and sanction inappropriate behaviour.

The parties, who never married, sought a final determination of custody, access, and child support for their three-year-old child.

The applicant father sought joint custody and a continuation of a week-about schedule in Toronto, while the respondent mother sought sole custody and primary residence in Buffalo.

The court found that the applicant had previously misled the court to obtain an ex parte custody order and consistently failed to consult the respondent on major decisions, demonstrating an inability to co-parent effectively.

Applying the best interests of the child test under the Children's Law Reform Act, the court awarded sole custody and primary residence to the respondent mother, with a generous access schedule for the applicant father.

The parties were ordered to share section 7 expenses proportionate to their incomes.

The parties engaged in a high-conflict family law trial primarily concerning the custody and access of their 4-year-old daughter.

The mother sought sole custody and made allegations of domestic violence against the father, which she used to restrict his access.

The court found the mother's allegations to be false and that she had actually assaulted the father.

The court determined it was in the child's best interests to grant the father sole custody with a 50/50 shared parenting schedule, as he was the only parent willing to foster the child's relationship with the other parent.

The court also resolved financial issues, dismissing the mother's claim for spousal support, ordering her to pay equalization and occupation rent, and setting child support based on a set-off approach.

The applicant mother sought to enforce an interim order for the respondent father to continue paying post-secondary tuition and living expenses for their two adult daughters, who are pursuing second and third degrees in the UK.

The father cross-moved to vary the order, seeking equal apportionment of expenses and further information regarding the daughters' financial contributions.

The court found a material change in the father's income due to currency devaluation and, on an interim basis, allocated 2018-2019 tuition and rent expenses equally between the parents.

The court emphasized the lack of information regarding the daughters' means and ordered the mother to provide comprehensive financial disclosure from the daughters to enable a proper Section 7 analysis.

This motion concerned two primary requests by the respondent mother: (1) to dismiss the father's appeal from a 2016 trial decision for delay, and (2) to continue an interim order for supervised access pending a motion to vary the existing access order in the Ontario Court of Justice.

The court applied the test for dismissal for delay, considering the significant two-year delay, lack of explanation, prejudice to the child's stability, and the father's failure to pay previous costs orders and provide evidence of merit.

The court also found ongoing concerns regarding the father's ability to provide a safe environment and his conduct during access, justifying the continuation of supervised access.

This costs endorsement followed an interim spousal support motion where the respondent was entirely successful.

The court found the applicant's persistent failure to provide adequate financial disclosure to be unreasonable, complicating the matter and increasing litigation costs.

Applying the principles of costs from Serra v. Serra and the Family Law Rules, particularly Rule 24(11) and Rule 24(5) regarding party behaviour, and Rule 18(14) concerning offers to settle, the court determined that the applicant's conduct warranted a full recovery costs award.

The respondent had also beaten all her offers to settle.