ONTARIO COURT OF JUSTICE
BETWEEN:
S.P.
Applicant
— AND —
D.P.
Respondent
Before Justice G. Jenner
Heard on December 19th, 2024
Reasons for Judgment released on December 24, 2024
Dale Brawn counsel for the respondent
S.P., appearing on her own behalf
JENNER J.:
Reasons for Judgment on Summary Judgment Motion
I. Introduction and Background
1On December 19, 2024, I heard the respondent father’s motion for summary judgment. The underlying proceeding is the father’s motion to change the previous final order of this court dated October 20, 2022. In his motion to change, the father seeks to vary his child support payable for their one mutual child (aged 12), on both a retroactive and ongoing basis. He claims that since 2019 he has been unable to work, and that based on his limited sources of income, he should pay a reduced amount.
2This is not the father’s first motion to change. In fact, the active final order came about in October 2022 as the result of a contested motion to change. The father’s injury and his ability to work were squarely before the court at that time. He achieved mixed results. His child support obligations were reduced for a specified period only, and not on an ongoing basis.
3While the court is prepared to decide the question of the father’s obligations by way of summary judgment, the father has failed to furnish evidence capable of justifying a reduction in his child support obligations, either on a retroactive or ongoing basis. As a result, the father’s motion to change is summarily dismissed.
II. Background and Procedural History
4The parties separated in 2013. They have one child together, aged 12. Historically, the father has been employed in the landscaping and trucking industries. The father’s child support obligations first became the subject of a court order in 2014. His obligations changed from time to time pursuant to several court orders.
5The father suffered an injury in February 2019. In a motion to change argued before Justice Lefebvre in August 2022, he submitted that changes in his health prevented him from being employed. He argued against the court’s imputing his income at its previous level. The father presented the court with health and physiotherapy reports and letters.
6The court concluded that the father’s injury caused him to be off work temporarily and adjusted the support owing for a fixed period accordingly. However, the court concluded that the evidence did not support the father’s claim that after July 20, 2020, he was not able to work. The court found that his current unemployment was a result of choice, and that his injury was insufficient to justify a variation to the ongoing child support.
7The father commenced this motion to change in July 2023. He seeks to vary his child support obligations retroactively back to the time of his injury, as well as on an ongoing basis.
III. The Evidence on this Motion
8The father relies on his affidavit dated December 11, 2024. He reiterates his February 2019 injury and operation. He indicates that on January 8, 2020, he underwent an ultrasound on his injured knee and in February 2020 he underwent tests to see if he could return to work. He underwent further ultrasounds in April and June 2021, and was referred to a physiotherapist. On March 8, 2020, his family doctor provided him with a letter confirming that he was not able to engage in physical activities, including those which might involve an application for a job.
9The father acknowledges that Justice Lefebvre concluded in 2022 that there was nothing before her which supported his claim to be unable to work. He suggests, however, that this concern was addressed on March 17, 2023, when he was informed by the manager of the ODSP adjudication unit that he was approved for benefits. He attaches a decision of the Ontario Social Benefits Tribunal (ONSBT) dated March 9, 2023 (the OSBT decision). That decision explains the tribunal’s determination that the father is “a person with a disability” and summarizes the evidence supporting that outcome. The father redacted certain parts of the decision as he indicates they do not relate to the issues before the court today and would tend to embarrass the father. I note that the decision is reported and publicly available in unredacted form.
10The father also deposes that in July 2024, he underwent surgery on his left hand to repair nerve damage; that in September 2024 he underwent two surgeries to repair nerve damage to his right arm and shoulder; and that he is awaiting a date for a further surgery on his left arm.
11The mother relied on her affidavit dated December 11, 2024. The only information contained therein that was relevant to the issue of the father’s ability to work came in the form of observations relayed to her from others about the father’s mobility. The father successfully challenged the admissibility of this hearsay at the outset of the motion, and I do not consider it.1
12I stipulated, however, that there were certain components of the father’s affidavit that were vulnerable to a challenge on the same grounds. As the mother was self-represented, I considered it my duty to identify those instances and invited the father’s counsel to address admissibility of the father’s evidence as part of his submissions on the motion. I will address those evidentiary issues as they arise.
IV. Issue
13The ultimate issue on the motion is whether summary judgment should be granted on the issues of the father’s child support obligation, retroactively or going forward, in whole or in part.
V. Legal Analysis
A. The legal context
14This is a motion to decrease child support, including retroactively, pursuant to s. 37(2.1) of the Family Law Act, R.S.O. 1990, c. F.3. The payor must meet the threshold of establishing a past material change in circumstances and a material decrease in income that has some degree of continuity. A payor is obligated to disclose sufficient reliable evidence for the court to determine when and how far their income fell, and to ascertain whether the change was significant, long-lasting, and not one of choice. A decision to retroactively decrease support must be based on “reliable, accurate and complete information.” The payor cannot shield information about their income from the court: Colucci v. Colucci, 2021 SCC 24 paras. 62, 113.
15Certain other principles—discussed below—supplement this analysis specifically in cases where the payor claims an inability to work due to their personal health circumstances.
B. The summary judgment framework
16Summary judgment motions are governed by r. 16 of the Family Law Rules and the Supreme Court of Canada’s guidance in Hryniak v. Mauldin, 2014 SCC 7. Pursuant to r. 16 (4), the party moving for summary judgment “shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.” Pursuant to r. 16 (4.1) the responding party to the motion “may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.” Rule 16(6) provides that if there is no genuine issue requiring a trial, the court shall make a final order accordingly. The parties are expected to put their best foot forward, and the court should not assume that the evidence will be amplified or improved at trial: Sweda v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 26.
17The applicable test is set out in Hryniak, at para. 49:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
18The court added, at para. 50, that “the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.”
19Rule 16(6.1) provides that in determining whether there is a genuine issue requiring a trial, the court may weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence, unless it is in the interests of justice for such powers to be exercised only at trial. Rule 16(6.2) empowers the court to order a mini-trial and hear oral evidence in order to exercise the powers under subrule (6.1). Pursuant to r. 16(9), if the court does not make a final order, the court may give directions and conditions for a focused hearing. While a mini-trial may be an attractive option in order to avoid the trappings of a full trial, the court should not assume that process will be more efficient. A mini-trial may result in a finding that there persists a genuine issue for trial, necessitating a further hearing, additional delay in the disposition of the case, and further burdens on the system: Catholic Children's Aid Society of Toronto v. A.M., [2016] O.J. No. 5454, at paras. 94-95.
C. Application
20I can be satisfied that summary judgment is appropriate in this case because taking the father’s case at its highest, and assuming the truth of his evidence, he would not meet the threshold required to reduce his child support obligation on either a retroactive or ongoing basis. I do not require the enhanced procedures of a mini-trial or trial to make that determination. While the father’s decision to trigger a summary judgment procedure was taken with a view that the merit of his case was obvious, he too was under an obligation to put his best foot forward and to lead trump or risk losing. He must bear the consequences.
21Why does the father’s evidence fall short? Largely for the same reasons his first motion to change failed to reduce his child support obligation on an ongoing basis. Reduced employment income because of a payor’s health circumstances can lead to a reduction in child support obligations: Drygala v. Pauli, 2002 41868 (Ont. C.A.), at paras. 38 and 45. But the father has not furnished the court with sufficient reliable, accurate, and complete information about why his income fell.
22A litigant in the father’s situation ought to provide the court cogent medical evidence in the form of a detailed medical opinion: Maltese v. Choghri, 2016 ONCJ 48, at para. 72. The evidence should address diagnosis, prognosis, treatment plan, and information connecting one’s medical condition to one’s ability to work, including with respect to different types of work: Davidson v. Patten, 2021 ONCJ 437, at para. 15. Even where health issues justify ceasing a certain occupation, the court must examine whether the payor ought to have earned income in a different capacity: Bentley v. Bentley, 2009 CarswellOnt 562 (S.C.J.), at paras. 19-20; see also Kinsella v. Mills, 2020 ONSC 4785, at para. 171. The father has not led any evidence on these issues. Nor has the father demonstrated he has used reasonable efforts to address whatever medical limitations he may have to earn income: Cole v. Freiwald, 2011 ONCJ 395, at paras. 140-142; Chogri, at para. 73.
23The only new information that the father provides is as follows:
(1) A letter from his physician indicating that his medical issues mentioned in earlier (unfiled) letters, continue to be active and he continues to access treatment.
(2) The partially redacted decision of the ONSBT dated March 9, 2023 (the OSBT decision). That decision explains the tribunal’s determination that the father is “a person with a disability” and discusses the evidence supporting that outcome.
(3) His own evidence that in July 2024, he underwent surgery on his left hand to repair nerve damage; that in September 2024 he underwent two surgeries to repair nerve damage to his right arm and shoulder; and that he is awaiting a date for a further surgery on his left arm.
24The physician’s letter is inadmissible hearsay. The father, represented by counsel, must follow the same rules of evidence he insisted must strictly govern the opposing party. In any event, absent the earlier letters from the physician, the letter that was filed is devoid of meaningful content and falls far short of the standard required.
25I am prepared to receive the ONSBT decision as evidence of the outcome of that administrative proceeding: British Columbia (Attorney General) v. Malik, 2011 SCC 18, at para. 38. But the receipt of ODSP benefits is not sufficient proof of one’s inability to work for support purposes, and the court cannot delegate the important and complex determinations of employability and income earning capacity to another tribunal: Tyrrell v. Tyrrell, 2017 ONSC 6499, at para. 13; Abumatar v. Hamda, 2021 ONSC 2165; Alves v. Alves, 2016 ONCJ 679, at para. 40; Osterlund-Lenahan v. Lenahan, 2014 ONSC 7074, at para. 34.
26Nor am I prepared to parse the ONSBT’s decision to draw the summaries of evidence from that proceeding into this motion. That would be to rely on the summaries of evidence, which are out-of-court statements, for the truth of their contents. When this hearsay concern was put to the father’s counsel, he was not able to offer any statutory basis or common law basis for me to accept the ONSBT decision into evidence for this additional purpose. Importing the summaries of evidence from the administrative proceeding would also be prejudicial to the mother, who was not a party to that proceeding, and lacked an opportunity to challenge or contribute to the evidentiary record. I am not prepared to do so.
27In any event, while I have determined the summaries of evidence before the ONSBT are not properly before me, I make the following additional observations.
28First, the father is not being entirely transparent. The physical condition the father advanced before the ONSBT was “osteoarthritis of his left him and knees.” The tribunal’s determination that the father is a “person with a disability” turns in part on a determination that his mental and physical impairments rise to a level of “substantial”. The ONSBT stipulates in its decision that the father’s physical impairments alone are not suggestive of substantial impairment. It goes on to find that “when the intersections of the [father]’s physical and mental health impairments are considered, particularly in the context of [the father]’s life circumstances as a whole, a picture of substantiality emerges”: para. 16. Recall that the father has redacted information in the decision concerning his mental health. The ONSBT’s decision was therefore grounded in evidence and facts that the father withheld from the record before this court. It would be inappropriate for me to rely on it in these circumstances.
29Second, the ONSBT decision determines an appeal from a decision first made in the summer of 2022, before the father argued his first motion to change before Justice Lefebvre. Though the ONSBT received additional testimony, there does not appear to be any evidence advanced before the tribunal that was not available to the father to advance in his first motion to change. Section 37(2.1) of the Family Law Act permits motions to change where there is a material change in circumstance or where “evidence not available on the previous hearing has become available.” I am not persuaded the OBSBT decision qualifies. I view the question of the father’s child support obligations up until the date of argument before Justice Lefebvre to have been previously determined by the court on a final basis, with the participation of the same parties. I would hold the father to be issue estopped from relitigating his obligations for period, and would not exercise my discretion to revisit it: see J.K. v. L.R., 2019 ONCJ 868, at paras. 105-107; Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, at par. 25.
30I am left, then, only with the father’s own scant information as to recent and upcoming surgeries, without the benefit of a medical opinion as to the impact on the father’s suitability for work-related tasks. This falls far short of the cogent and detailed evidence identified as necessary by the jurisprudence.
VI. Conclusion
31There is no genuine issue requiring a trial. The father has failed to furnish the court with sufficient evidence with respect to his health circumstances and income earning capacity. The father’s motion to change is dismissed.
32Should the parties be unable to resolve the issues of costs of this motion for summary judgment or the underlying motion to change, they shall address the issue in writing. The mother may serve and file her costs material, with written submissions not exceeding four pages within 30 days of the release of these reasons. The father shall then have 15 days to serve and file his materials in response, with the same page limitation.
33The previously scheduled next court date in this matter is vacated.
Released: December 24th, 2024
Signed: Justice G. Jenner