Court File and Parties

Ontario Court of Justice

Court File No.: DFO 97 437 E000-A3

Date: 2016-10-20

Between:

Mark Roitman Applicant

— And —

Director, Family Responsibility Office for the Benefit of Luba Tetelbaum Respondent

Before: Justice S. O'Connell

Motion Heard: October 19, 2016

Endorsement dated: October 20, 2016

Appearances

No appearance on behalf of the Family Responsibility Office although served with notice

Ms. B. Thurston — counsel for the payor

Ms. N. Chaves — counsel for the recipient

Endorsement

[1] This is the Respondent payor's motion to vary the terms of the refraining order granted by the Honourable Justice Scully on February 29, 2016. He seeks an order that the terms of the refraining order be changed from $772.43 per month to $349 per month commencing September 1, 2016.

[2] By way of background, on February 29, 2016, Justice Scully granted a refraining order brought by Mr. Roitman in these enforcement proceedings. As a term of that refraining order, he ordered that Mr. Roitman pay ongoing support in the amount of $772.43 per month commencing March 1, 2016. The refraining order was to expire on August 29, 2016.

[3] In accordance with a further term of the refraining order, Mr. Roitman brought a motion to change the child support provisions in the motion to change proceedings that have been case managed by me. The motion to change has now been scheduled for a two day trial on January 16 and January 17, 2017.

[4] On August 22, 2016, within these separate enforcement proceedings, Mr. Roitman brought a motion to extend the refraining order for a further period of three months. In that motion, he also sought to change the terms of the refraining order granted by Justice Scully such that the ongoing support payable be changed from $772.43 per month to $349.00 per month, commencing September 1, 2016. FRO counsel was present on that day.

[5] The Honourable Justice Cohen, the judge presiding in the enforcement proceedings on that day, granted the extension of the refraining order for a period of three months, however she declined to vary the terms of the refraining order at that time and instead adjourned that part of the motion to me as the case management judge in Mr. Roitman's motion to change. As I understand it, according to Mr. Roitman's counsel, Justice Cohen determined that the case management judge presiding over the motion to change was in a better position to determine the variation of the ongoing payment terms of the refraining order.

[6] On September 6, 2016, the refraining motion came before me. Counsel for Mr. Roitman was present, however counsel for the Director of the Family Responsibility Office was not present. I adjourned the motion to vary the terms of the refraining order to October 19, 2016 and directed counsel for Mr. Roitman to serve the Director of the Family Responsibility Office ("FRO") with the return date.

[7] At the return of the motion on October 19, 2016, FRO counsel was again not present. I was advised by counsel for Mr. Roitman that FRO counsel was aware of this date but declined to attend today because FRO took no position on the motion and the relief requested. FRO simply wanted to know the outcome.

[8] As this is a motion to vary the terms of a refraining order brought within an enforcement proceeding, I was very surprised to hear this. I was also unclear as to what jurisdiction I had to vary the terms of the refraining order previously granted by the judge presiding over the enforcement proceedings. I was concerned that perhaps FRO counsel misunderstood what was occurring today and believed that this was a temporary motion to change the child support provisions pending the final motion to change hearing. As such, I requested Ms. Chavez, counsel for the recipient to attend the hearing. Although the recipient is not a party to this motion, I thought it prudent to advise her of what was transpiring.

[9] Ms. Chavez vigorously opposed changing the terms of the refraining order pending the final motion to change hearing which is scheduled to proceed to trial in approximately twelve weeks. She further pointed out that there was no significant difference in the change in Mr. Roitman's income since the ongoing payment term of the previous refraining order made by Justice Scully.

[10] Ms. Chavez also argued that to grant the relief being sought would be to predetermine on an interim basis the issues to be determined by the trial judge at the final motion to change hearing, only twelve weeks from now. The determination of the father's income is a hotly contested triable issue. (I also recognize that there is an issue with respect to the ongoing entitlement for the adult daughter.)

[11] At the time of the February 2016 refraining motion before Justice Scully, Mr. Roitman's declared gross income was $33,800.04 per year or $2,816.67 per month. At the time of the motion to extend the refraining order, Mr. Roitman's gross annual income was $39,060.00, actually higher than the income he was receiving in February of 2016. Ms. Thurston, counsel for Mr. Roitman pointed out that Mr. Roitman's previous income was tax-free and that his current income, after tax, from his pension is now $2,628.20 per month. This is a reduction in income of $188 per month since February of 2016.

[12] For oral reasons, with written reasons to follow, I declined to grant the father's motion to vary the terms of the refraining order. First, it is unclear to me what jurisdiction I have to vary the terms of a refraining order already granted by a previous judge while I am sitting as the case management judge on the motion to change. Even if I do have this jurisdiction to hear and make a decision of the terms of a refraining order already granted, the test for the variation of a refraining order is that the payor must show that he has a good prima facie case on the variation. Figliolo v. Director, 2008 ONCJ 366, 56 RFL (6th) 457 (OCJ). If the payor cannot demonstrate a prima facie case for a change, then it is just to make a refraining order that reflects that prima facie case. See Comrie v. Comrie, [2001] O.J. No. 4467 (S.C.J.)

[13] I further do not understand why counsel for the Director of FRO is not here to make submissions on the relief sought with respect to the refraining order since it is an order being sought within an enforcement proceeding commenced by FRO. I am concerned that FRO counsel may have misunderstood the motion that was brought by Mr. Roitman and the nature of the appearance today.

[14] Secondly, this motion appears to me to be, respectfully, an attempt to bring an interim variation of the ongoing child support provisions within the father's motion to change "through the back door" of the enforcement proceedings so to speak. I decline to make any changes so close to the trial as that would be in effect predetermine the triable issues on the basis of thin affidavit evidence.

[15] The court does have the jurisdiction to make an interim variation of a final support order pending a trial in a case of clear hardship or where the continuation of the order would be incongruous or absurd. See: Fredette v. Fredette, [2005] O.J. No. 4938 (SCJ); Crawford v. Dixon, [2001] O.J. No. 466 (SCJ). However, this is not the case here, or it has not been demonstrated in the evidence before me.

[16] Further, the test for an interim variation of a support order should not be lower than the test for a stay of enforcement which is essentially what the payor is seeking by requesting a variation of the terms of the refraining order. The principle should be the same for a motion to stay enforcement. Hayes v. Hayes, 2010 CarswellOnt 4796 (Ont. S.C.J.).

[17] The court should proceed cautiously with a temporary change when there are material issues in dispute that require a trial. Connell v. Connell, 2006 PESCTD 14, [2006] P.E.I.J. No. 12 (P.E.I. C.A.).

[18] For all of those reasons, the motion is dismissed.

Released: October 20, 2016

Signed: Justice S. O'Connell