DATE: 20061002
DOCKET: C45165
COURT OF APPEAL FOR ONTARIO
RE:
IVY JOAN HIGGINS (Applicant (Respondent)) – and – MALCOLM McNEILL HIGGINS (Respondent (Appellant))
BEFORE:
DOHERTY, SIMMONS AND ROULEAU JJ.A.
COUNSEL:
Malcolm Higgins in person
Ivy Joan Higgins in person
HEARD:
September 26, 2006
On appeal from the order of Justice Ramona Wildman of the Superior Court of Justice dated March 22, 2006.
E N D O R S E M E N T
[1] The main issue on appeal is whether Wildman J. erred in imposing the terms set out at paragraphs 3, 4 and 5 of an order dated March 22, 2006. These paragraphs of the March 22, 2006 order are directed at enforcing the terms of an interim support order dated January 25, 2006.
[2] The motion judge who made the January 25, 2006 support order (the “January motion judge”) imputed income to the appellant of $100,000 per year. Based on that finding, the January motion judge increased the child support payments that the appellant is required to make from $1054 per month to $1613 per month retroactive to February 25, 2005. In addition, the January motion judge ordered the appellant to pay s. 7 expenses totalling $13,500 on account of university costs for two children plus spousal support of $2200 per month retroactive to February 25, 2005. A motion brought by the appellant for leave to appeal the January 25, 2006 order was dismissed.
[3] Paragraphs 3 and 4 of the March 22, 2006 order provide that the appellant's pleadings will be struck unless he pays the following amounts:
i. the ongoing child and spousal support payments of $3813 per month;
ii. a lump sum of $6708 on account of the monthly child support arrears that accrued between February 25, 2005 and March 22, 2006 under the January 25, 2006 order; and
iii. $1000 per month on account of support arrears under the January 25, 2006 order until they are retired.
[4] Paragraph 5 of the March 22, 2006 order provides that the appellant is not entitled to request a trial date until:
i. he pays the lump sum child support arrears totalling $6708 referred to in para. 3 ii above;
ii. he pays all interim support payments that have accrued subsequent to the January 25, 2006 order, and
iii. he has complied, for a minimum of 3 months, with the terms of para. 4 of the March 22, 2006 order requiring that he pay $3813 per month on account of ongoing child and spousal support plus $1000 on account of support arrears.
[5] In making the March 22, 2006 order, the motion judge accepted the January motion judge’s finding that income of $100,000 per year should be imputed to the appellant. However, she also recognized that the January 25, 2006 order created substantial arrears and that, because the appellant is an undischarged bankrupt, he “has no property and no ability to borrow institutionally.” In light of these factors, she said she was not satisfied that the appellant “has the ability to immediately comply with the existing order.”
[6] However, the motion judge also noted that the appellant had been able to borrow some funds for legal fees from relatives and his girlfriend. In addition, the motion judge said, “he has had over a year’s holiday from spousal support payments while the support motion was pending, so he should have been making some contingency plans to deal with the possibility that he would have some support arrears.”
[7] In our view, the motion judge was correct in concluding that she should consider the appellant’s ability to make all of the payments required under the January 25, 2006 order. Because the January motion judge did not make a specific finding concerning the appellant’s ability to pay immediately the retroactive arrears of child and spousal support created by his order and the lump sum s. 7 expenses, it was necessary that the motion judge determine that issue before making an order that might effectively end the appellant’s right to participate in the proceeding.
[8] However, in our view, the motion judge erred in implicitly holding that the appellant could and should have set aside money to allow him to pay lump sum amounts on account of retroactive support. As the motion judge noted, given the appellant’s status as an undischarged bankrupt, he was not in a position to own property. In these circumstances, we fail to see how he could properly have made a “contingency plan” to pay any significant amount on account of retroactive support.
[9] In addition, in our view, the motion judge erred in failing to consider the annualized amount of the payments required under paragraphs 3, 4 and 5 of her order and the appellant’s ability to pay when considered in that light. The combined effect of paragraphs 3, 4 and 5 of the March 22, 2006 order is to bar the appellant from participating further in this proceeding unless he makes payments in excess of $80,000 on an annualized basis,[^1] or approximately 80% of his gross annual income.
[10] Particularly because the appellant is currently unable to own property, in our view, the motion judge should have assessed the appellant’s ability to pay the amounts ordered more specifically by reference to his annual income and his proper monthly expenses. In the absence of such an analysis, we are not satisfied that the appellant has the present ability to comply with paragraphs 3, 4, and 5 of the order dated March 22, 2006.
[11] However, we reject the appellant’s submission that the motion judge erred in requiring the appellant to comply with the January 25, 2006 order for ongoing periodic support payments. There was no basis for the motion judge to go behind the order made on January 25, 2006 concerning the appellant’s imputed income.
[12] At the oral hearing of this appeal, the appellant sought to vary his position on appeal from the positions taken in his factum and notice of appeal. The thrust of the appellant’s position was that he should be able to proceed to trial and to seek further relief in this proceeding without any payment conditions. We reject that submission.
[13] In the circumstances, the appeal is allowed in part. Paragraphs 3, 4 and 5 of the March 22, 2006 order are struck and the following paragraphs are substituted:
In the event the Husband defaults in making any payment(s) that fall due under the January 25, 2006 order on account of ongoing interim periodic child and spousal support (totalling $3,813 per month) after September 29, 2006, the Husband’s pleadings shall be struck and the Wife may proceed to obtain a final order without notice to the Husband. The Husband will be considered in default within the meaning of this paragraph if a required payment has not been received within 21 days of the date on which the payment is due.
The Wife shall be entitled to prove that the Husband is in default within the meaning of paragraph 3 of this order by filing an affidavit setting out the particulars of the default, which shall include confirmation that neither she nor the Family Responsibility Office has received the payment(s). The Wife’s affidavit may include statements based on information and belief. Any requirement that the Wife’s affidavit be served on the Husband is dispensed with. Upon receiving an affidavit from the Wife proving default within the meaning of paragraph 3 of this order, the clerk of the court shall strike the Husband’s pleadings.
The Husband shall not be entitled to insist on a trial in this matter until he has complied with the terms of the January 25, 2006 order requiring that he pay ongoing interim periodic child and spousal support (totalling $3,813 per month) for a period of at least three months.
[14] This order is without prejudice to the respondent’s right to apply for further enforcement of the January 25, 2006 order.
[15] We make no order as to the costs of the appeal.
“Doherty J.A.”
“Janet Simmons J.A.”
“Paul Rouleau J.A.”
[^1]: The March 22, 2006 order requires the appellant to pay ongoing child and spousal support of $3813 per month ($45,756 per year), $1000 per month ($12,000 per year) on account of support arrears, $13,500 on account of s. 7 expenses, $6708 on account of accrued child support arrears and $4400 on account of accrued monthly spousal support payments.