Court of Appeal for Ontario

Date: 2019-09-17 Docket: C66750

Panel: Hoy A.C.J.O., Nordheimer and Jamal JJ.A.

Between

Jennifer Dawn Gauthier Applicant (Respondent)

and

Michel Omer Gauthier Respondent (Appellant)

Counsel

For the Appellant: Elliot Vine and Jordan Welsh

For the Respondent: Jennifer Judge (Gauthier), acting in person

Heard: September 11, 2019

On appeal from: The order of Justice Michael R. Gibson of the Superior Court of Justice, dated March 5, 2019.

Reasons for Decision

[1] In 2010, the appellant was ordered to pay child support to the respondent. On August 4, 2016, Barnes J. of the Superior Court of Justice dismissed the appellant's motion to vary the child support order and ordered that the appellant not bring any further motions without leave of that court. On February 7, 2019, the appellant brought a motion for leave to proceed with a motion to change the 2010 order for child support and for leave to proceed with a motion to reduce a 2012 order for security for costs. His motion was dismissed in both respects. He appeals that dismissal. For the following reasons, we allow the appeal.

[2] While the motion judge found that the appellant had not persuaded him that there had been "a sufficient prima facie change in his income", the motion judge failed to explain why he was not so persuaded in light of the financial information provided by the appellant. Similarly, the motion judge said that he was not persuaded that the factors that led to the order for security for costs had "diminished" or that the order was not "just". Again, the motion judge failed to explain why he was not so persuaded. In the context of the record before the motion judge, we are unable to determine how he arrived at these conclusions. Consequently, the motion judge's reasons do not allow for meaningful appellate review and his conclusions are not entitled to deference.

[3] The 2010 order for child support was based on the appellant having an annual income of $123,000. The record that was before the motion judge indicates that since that order was made, certain events have taken place, including:

1. In 2016, in a separate proceeding, child support was ordered for the child of the appellant's second family based on the appellant having an income in 2013 of $94,203.76 per annum;

2. The appellant declared personal bankruptcy in 2016;

3. A notice of assessment and a notice of reassessment issued in respect of the 2015 and 2016 tax years indicate that the appellant's income for those years was $101,553 and $55,077, respectively;

4. Based on an unaudited financial statement and T4 and T5 statements, the appellant's income (salary plus dividends) appears as $58,904 in 2017 and $56,588 in 2018.

[4] The above events are sufficient to warrant judicial consideration of whether the child support payments, ordered in 2010, ought to be reduced. On the motion to change itself, however, the appellant would, at a minimum, have to produce notices of assessment and reassessment for 2017 and 2018 (and not just unaudited financial statements) to have any chance of success.

[5] The appellant also contends that certain expenses associated with the children when they were younger (e.g. daycare) have been eliminated. That said, we appreciate that other expenses may have increased so as to reduce or even eliminate any net change on the expense side of the ledger. Either way, it is clear that the circumstances are not exactly as they were when the original order was made and that the appellant should at least have the opportunity to make his case for a change.

[6] In addition, the uncontradicted evidence of the appellant is that the existing security for costs order, that requires him to post $59,500 before he can proceed with a motion to change, is an insurmountable obstacle to his ability to have the child support order reviewed.

[7] We appreciate, and the appellant himself admits, that his conduct since 2010 has been poor. It is undisputed that he has accumulated considerable arrears of child support. For a number of years, the appellant made no child support payments at all. However, the evidence also shows that since enforcement proceedings were taken by the Family Responsibility Office, including a period of incarceration ending in 2018, the appellant has been making regular child support payments. While these payments do not match his obligations, he has produced evidence consistent with his position that he is paying as much as his current financial situation will allow.

[8] Orders for security for costs are a blunt instrument. They are not intended to act as a roadblock to genuine claims: Izyuk v. Bilousov, 2015 ONSC 3684, 62 R.F.L. (7th) 131, at para. 37. They should be used sparingly and carefully because they may well have the effect of barring a party from access to the court process for a proper review of existing orders – something, for example, to which a party is entitled respecting child support orders if there has been a change in circumstances: Family Law Act, R.S.O. 1990, c. F.3, s. 37(2.1). Without commenting on whether the security for costs order was appropriate when it was made, there is now enough evidence to make a prima facie case of change in circumstances warranting a review of the child support order. The outstanding order for security for costs ought not to block that review.

[9] On that latter point, the appellant, appropriately, does not seek a removal of the order for security for costs. Rather, he seeks a reduction in the amount of security to $10,000, an amount that he says he can manage to borrow, and that will still operate to provide some measure of protection to the respondent.

[10] In all the circumstances, we allow the appeal. We grant leave to the appellant to proceed with his motion to reduce the order for security for costs and we reduce the security for costs order to $10,000. If the appellant posts that security, the appellant will then be entitled to bring a motion for a change to the child support order but only with respect to that order. No other issues are to be raised by the appellant.

[11] The appellant did not seek costs of the appeal and no costs are ordered.

"Alexandra Hoy A.C.J.O." "I.V.B. Nordheimer J.A." "M. Jamal J.A."