Smithen v. Polychronopoulos, 2011 ONSC 1622
CITATION: Smithen v. Polychronopoulos, 2011 ONSC 1622
DIVISIONAL COURT FILE NO.: 69/11
DATE: 20110314
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
KATHRYN LEAH SMITHEN
Applicant
– and –
ALEX POLYCHRONOPOULOS & PROVINCIAL DEVELOPMENT ASSOCIATES LIMITEE
Respondents
In Person
Alex Polychronopoulos, In Person
HEARD at Toronto: March 14, 2011
FERRIER J. (ORALLY)
[1] The applicant seeks leave to appeal the order of Sachs J. dated February 3, 2011, which quashed Notices of Garnishment dated December 13, 2010 issued in the Superior Court of Justice.
[2] For the reasons which follow, the motion is dismissed.
[3] The applicant claims that the respondent is in arrears of a child support order to the extent of $16,333.04. The respondent takes the position that there is nothing owing for child support and in fact claims that he has overpaid.
[4] There is pending in the Ontario Court of Justice a default proceeding, which was ordered by Perkins J. to take place in the Ontario Court of Justice by order dated November 9, 2010. A case conference in that proceeding is to be held today at 2:00 p.m. Following the order of Perkins J., the applicant, on December 13, 2010 had issued in this Court the Notices of Garnishment.
[5] The respondent filed a dispute to the garnishment notice and asked for a garnishment hearing. A date for the return of that request for a hearing was fixed as February 3, 2011.
[6] The respondent moved by way of motion returnable on February 3, 2011 as well to quash the Notice of Garnishment. That motion came on before Sachs J. It is apparent that, on a motion day in the family division, a hearing on the disputed garnishment could not occur – it would require oral testimony.
[7] At the disputed garnishment hearing, the Court has the power to suspend or quash the notice. (see Rule 29(19)).
[8] Sachs J. quashed the Notice of Garnishment, in view of the then pending hearing in the Ontario Court of Justice which was then scheduled for February17, 2011. In the Ontario Court of Justice, the question of how much child support is owing, if any, will be resolved.
[9] The applicant takes the position that the order below is wrong in law and that there is a conflicting decision on the point under consideration.
[10] The applicant submits that she is permitted in law to utilize simultaneously any enforcement process that is available to her and that she is not required to use only one available remedy. In this respect she cites Rule 26 of the Family Law Rules, which reads as follows:
(2) An order that has not been obeyed may, in addition to any other method of enforcement provided by law, be enforced as provided by subrules (3) and (4).
[11] Subsection 3 provides:
(3) a payment order may be enforced by:
(a) a request for a financial statement;
(b) a request for disclosure from an income source;
(c) a financial examination;
(d) seizure and sale;
(e) garnishment;
(f) a default hearing;
(g) the appointment of a receiver under Section 101 of the Courts of Justice Act; and
(h) registration under section 42 of the Family Responsibility and Support Arrears Enforcement Act, 1996, O. Reg. 114/99, r. 26(3).
[12] Rule 29.(1) of the Family Law Rules, supra, also provides that:
29.1(1) The clerk shall issue as many notices of garnishment (Form 29A or 29B) as a recipient requests if the recipient files,
(a) a request for garnishment (Form 29) or an extra-provincial garnishment process referred to in Section 50 of the Family Responsibility and Support Arrears Enforcement Act, 1996; and
(b) a statement of money owed (subrules (26(5) and (6)).
[13] I note that at the heart of the dispute between these parties is the question whether the order “has been obeyed”.
[14] The applicant also relies on sections 6(6) and 41(10) and (11) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. c. 31 but it appears that these sections refer to the powers of the Director under that statute.
[15] The applicant cites the case of Ontario (Support and Custody Enforcement Director v. Young (1989) O.J. No. 2066 (Ontario District Ct.) Crossland J. In that case, which is clearly distinguishable on its facts, the amount of arrears had already been determined on a default hearing and the default order provided a fixed schedule for the payment of the arrears. The creditor had a notice of garnishment issued. The debtor moved in the Provincial Court to suspend the garnishment and that relief was granted and the creditor appealed to the District Court. The District Court Judge held:
If the Legislature had intended to preclude the administrative remedy of garnishment in the face of a payment scheduling order in a default proceeding, it would have specifically said so. In the absence of such prohibition either in the legislation or in the payment scheduling order, the creditor or SCOE has the prima facie right to pursue alternative remedies including garnishment subject to the discretion of a judge on a dispute hearing.
[16] In Young, the Court noted the impractibility of requiring the creditor to return to vary the default order before pursuing the garnishment remedy. Also, the significant difference in the case is that the debtor, after the default order was granted had made no motion to vary it. Whereas here, the very amount of the outstanding arrears, from zero to $16,000.00, is in issue.
[17] Furthermore, the Court in Young held that the Court below had a discretion to suspend the garnishment order, but exercised the discretion on wrong principles.
[18] In the case at bar, in what was tantamount to a dispute hearing, the Court exercised its discretion to quash the guarishee notices since the question whether any arrears were owing had not yet been determined.
[19] Thus, I conclude, there are no conflicting decisions on the question.
[20] The applicant must establish both branches of subsection (a) of Civil Procedure Rule 62.02(4). She has not established the first branch, namely, conflicting decisions and the motion fails on the first subsection.
[21] The applicant did not argue subsection (b) but I would not agree that there is a good reason to doubt the correctness of the decision below.
[22] Accordingly, neither subsection (a) nor (b) of Rule 62.02(4) have been satisfied.
COSTS
[23] In connection with the issue related to costs, the motions Judge below ordered the applicant to pay $150.00 costs to the respondent. The applicant cites Fong v. Chan (1999) 2052 (Ont. C.A.). I do not see that this case helps the applicant. In ordering the $150.00 costs, I cannot see that the learned motions Judge exercised her discretion on wrong principles. The respondent had to be off work and had to do the work of a lawyer in presenting his case.
[24] For the foregoing reasons, the motion is dismissed. No order as to costs.
FERRIER J.
Date of Reasons for Judgment: March 14, 2011
Date of Release: March 17, 2011
CITATION: Smithen v. Polychronopoulos, 2011 ONSC 1622
DIVISIONAL COURT FILE NO.: 69/11
DATE: 20110314
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER J.
BETWEEN:
KATHRYN LEAH SMITHEN
Applicant
– and –
ALEX POLYCHRONOPOULOS & PROVINCIAL DEVELOPMENT ASSOCIATES LIMITEE
Respondents
ORAL REASONS FOR JUDGMENT
FERRIER J.
Date of Reasons for Judgment: March 14, 2011
Date of Release: March 17, 2011