Court File and Parties
COURT FILE NO.: 205/14 DATE: 2019 03 06 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: CINDY ELIZABETH ST. DENIS, Applicant AND: THOMAS EDWARD ST. DENIS, Respondent
BEFORE: CHOZIK J.
COUNSEL: Harjyot Dhaliwal, Counsel for the Applicant James Peluch, Counsel for the Respondent
HEARD: February 12, 2019
Endorsement
Overview
[1] The Respondent brings a motion pursuant to section 106 of the Courts of Justice Act to stay the Applicant’s Motion to Change the Final Order of Perkins J. dated January 16, 2007. In the alternative, the Respondent asks the court to (i) dismiss the Motion to Change for delay under Rules 2(2), 2(3) and 2(4) of the Civil Rules of Procedure or (ii) to strike the Applicant’s pleadings under Rules 1(8), 1(8.2) and 14 of the Family Law Rules for non-compliance with the disclosure obligations imposed by Price J. in his Order dated March 9, 2015 or (iii) to otherwise end the litigation. The Respondent also seeks an order that no further proceedings shall be brought by the Applicant without obtaining leave of this court, pursuant to Rule 14(21) of the Family Law Rules and s.140(3) of the Courts of Justice Act, and an order that the Applicant produce a copy of the order of the Newmarket Superior Court of Justice to which she refers at para. 11 of her affidavit dated April 24, 2017.
[2] The Applicant agrees that many of the issues raised in the Motion to Change, which was filed almost five years ago (April 14, 2014) are now moot. The changes sought in that Motion to Change related to custody (the Applicant sought to have joint custody changed to sole custody), access (the Applicant sought to reduce father’s access to the children and to have the court impose various drug and hair testing upon the father as a condition of access) and an order for police assistance. The Applicant agrees that all of these issues are now moot. In her Motion to Change, the Applicant sought Child Support Guideline table support retroactive to July 2010. Now, only the quantum child support arrears from 2014 to the present is outstanding. The parties do not agree on how those arrears are to be calculated or whether any support is owing for 2014. The Applicant has not brought a cross-motion to deal with these issues. However, the parties have made extensive submissions on this issue before me. They agree that I should make a finding with respect to the arrears of child support owing by the Respondent.
[3] I have determined that the Respondent owes $8,288 to the Applicant for arrears of child support for the period of January 1, 2015 to January 31, 2019. I am unable to determine the amount of support owing or paid for 2014. A trial of an issue is required to determine that amount. The parties have reached final partial minutes of settlement on other issues. The other issues in the Motion to Change are now moot and dismissed.
Background
[4] The parties were married for nine years. They separated in 2005. They have two children, Thomas Ryan St. Denis (“Ryan”) born June 6, 2002 and Braeden James St. Denis (“Braeden”) born May 10, 2004. Ryan and Braeden are now respectively 16 and 14 years old. When Perkins J. made the final order in 2007, these children were three and one year(s) old. The Final Order was made on consent. The evidence before me amply demonstrates that, sadly, these children have grown up knowing only conflict between their parents.
[5] From 2010 to 2014, the parties lived relatively near each other, and implemented a week about parenting schedule. In February 2014 the Applicant reverted to the parenting schedule set out in the Final Order of Perkins J. At the same time, she brought a motion to change that final order. Since then, a number of interim orders have been made. Added difficulties to the parties’ parenting arrangements of their two boys arose from the fact that the parties now live far from each other. The Respondent moved to Bowmanville, near to his work, while the Applicant now lives in Hillsburgh. No one is to blame for these moves, but they did add a layer of difficulty to the parties’ relations.
[6] Since 2014, the Respondent has expressed concerns about parental alienation caused by Applicant’s behaviour. The Respondent obtained two separate court orders (one in 2015 and one in 2017) for the appointment of two separate parenting coordinators to deal with ongoing access issues and alienations concerns. Both parenting coordinators resigned. The last one, in her summary, identifies certain behaviours by the Applicant as adding to the alienation of the father. At the hearing of this motion, it was reported orally to me by the parties that the older boy, Ryan, moved to live full time with the Respondent in January, 2019.
Positions of the Parties
[7] The Respondent asks for a stay of the current proceedings on the basis that the on-going litigation is oppressive and vexatious. He argues that the outstanding motion to change adds to the tension and lack of cooperation between the parties. In turn, this tension is experienced by the children. In the past, outstanding litigation has fueled fractures in the relationship between father and sons. The father attributes these fractures to the mother’s conduct.
[8] The Applicant does not oppose ending the litigation but argues that the Respondent is not entitled to an equitable remedy of a stay of proceedings because he does not have “clean hands”. She points to the requirements of on-going financial disclosure where child support is made in both Perkins J.’s and Price J.’s Orders, and under the legislation, where child support is payable, and says that the Respondent has failed to comply with these obligations. The Applicant further argues that the Respondent has not met the various legal tests for either a stay of proceedings, dismissal for delay or the striking of pleadings.
Analysis
[9] A stay of a proceeding is an extraordinary remedy. The court may grant a stay of proceedings where the party seeking the stay shows that: (a) the continuance of the action would work an injustice because it is oppressive, vexatious or an abuse of the process of the court; and (2) the stay would not cause an injustice to the other party. (Canadian Express Limited v. Blair, 11 O.R. (3d) 221, [1992] O.J. No. 2029). I am not able to conclude that the Applicant’s motion to change is oppressive, vexatious or an abuse of the court’s process. Things changed. The parties have moved to different towns. The children have grown, and their needs and preferences have changed. The circumstances of the parties and their children changed, necessitating an order to change. There were legitimate issues regarding child support arrears to be determined. It is, of course, preferable for parties to resolve issues arising from change and adapt their expectations. At the same time, I am not persuaded that the Applicant’s motion to change was oppressive, vexatious or an abuse of process either at the time it was brought, or at this time.
[10] A stay of proceedings under s.106 of the Courts of Justice Act is a less drastic remedy than an outright dismissal for delay (Martin v. Martin). However, a proceeding should not be dismissed for delay unless the default is intentional and contumelious, or the plaintiff is responsible for the inexcusable delay and the delay gives rise to a substantial risk that a fair trial might not be possible as a result of the delay (Furtney Estate v. Furtney, 2013 ONSC 6687). In my view, the test for a dismissal for delay is not met in this case. While the delay in this case is significant, I am not able to find that it is “inordinary” or “inexcusable” or caused by the Applicant or her counsel. Nor am I able to find that the delay is such that it gives rise to a risk to the fair trial rights of the defendant (Fakeiry v. Fakeiry, 2012 ONSC 7233, 2012 CarswellOnt 15989).
[11] The striking of pleadings is appropriate in circumstances involving willful noncompliance with a court order that is egregious and exceptional. (Manchanda v. Thethi, 2016 ONCA 909). In my view, both parties have chosen at times to disregard the spirit and letter of various court orders made, and often they have done so with the silent acquiescence or active participation of the other. For example, between 2010 and 2014 the parties chose to re-arrange the parenting schedule set out in the Final Order of Perkins J. by changing it to a week-about schedule. Each complains that the other has failed to make disclosure of financial records, while at the same time neither party is in a position to state that he or she has complied with his or her own obligations in this regard or complied with those obligations in a timely way. Neither party comes before the court with clean hands.
[12] I am therefore not satisfied that the Applicant’s motion for change should be stayed, dismissed for delay or that her pleadings should be struck. At the same time, continuing to have litigation pending is not in anyone’s interest either. What is needed is a final order setting out how the parties are to deal with mutual financial disclosure, on-going child support calculations and payment of any child support arrears.
[13] To this end, the parties reached partial Final Minutes of Settlement with respect to on-going financial disclosure, child support and section 7 expenses. The partial Final Minutes of Settlement are attached. An Order is to issue in accordance with the partial Final Minutes of Settlement.
[14] The parties also agreed that although the Applicant has not filed a formal cross-motion seeking determination of the issue of child support arrears, they are content that I make this determination. The Respondent has had sufficient notice of the issue in light of the position taken in the Applicant’s Factum, and has also had an opportunity to respond. Following the hearing of the motion, on February 22, 2019 I requested additional written submissions from the parties on the issue of child support arrears. I have now received, reviewed and considered those additional written submissions.
Child Support Arrears
[15] As of January 1, 2015, the Respondent has paid monthly child support for the two boys in the amount of $1,562.00. This amount was ordered, on consent, by Price J. in the Order dated March 9, 2015. The Respondent has not voluntarily adjusted this monthly figure to his income since then. He does not dispute that adjusting this monthly figure to his income means that he owes arrears. His position is that these arrears add up to $9,504.00 for the years 2015, 2016, 2017 and 2018. He submits that he overpaid child support in 2019 by $1,912.00 and provides a copy of his pay stub showing a garnishment of $3,604.00 for the month of January. In light of the overpayment in 2019, the Respondent submits that the arrears owing for child support total $7,592.
[16] The Respondent further submits that the parties did not have an active child support mechanism from 2010 to 2014 because they earned similar incomes, and the children were living with each parent one week at a time. That arrangement ended on or about February 2014. He submits that no child support is owing for the balance of 2014 because (a) he made payments totaling $14,783.50 to the Family Responsibility Office (“FRO”) for 2014 and (b) the parties reached a verbal agreement in their meetings with the first parenting coordinator, Angela Murie, in August 2016 that the arrears for 2014 would be calculated at $7,000. He relies on an email from Angela Murie dated August 10, 2016 to this effect, as well as an Amended Support Deduction Notice dated February 24, 2017.
[17] The Respondent argues that the child support for each year ought to be calculated based on his prior year’s annual income. By way of an illustration, had he been expected to pay support as of January 2019 he would base his monthly payments on his income in 2018. He argues that this was the intention behind the orders of Perkins J. and Price J.. Since those orders were made on consent of the parties, the Respondent argues that in effect there is agreement or implied consent to use the previous year’s income of the payor to determine the next twelve months of child support payable.
[18] The Applicant disagrees. She argues that the child support calculations should be based on the Respondent’s actual income in any calendar year. She seeks an order for child support arrears in the amount of $15,048 for 2014 to 2017. This amount is based on the Respondent’s actual income in 2014 to 2017. According to the Applicant’s calculations, the arrears owed by the Respondent for January 1, 2014 to January 31, 2019 total $16,738. This amount includes arrears of $6,408 for 12 months of 2014.
[19] The Federal Child Support Guidelines clearly speak to table support calculations being based on current income. The mechanism to achieve this varies. The Order of Perkins J. dated January 16, 2007 says that:
- The Respondent shall pay the Applicant child support for the children of the marriage in accordance of the provisions of the Child Support Guidelines. At present, the Respondent’s income is estimated at $75,200.00 per year.
- Commencing January 1, 2007, the Respondent shall pay the Applicant table amount of child support of $1100.00 per month plus a proportionate contribution to day care expenses of $328.00 per month.
- The Applicant and Respondent shall annually provide each other with the information set out in Section 21 of the Child Support Guidelines by March 1 each year.
[20] The Order of Price J. dated March 9, 2015 required the Respondent to make financial disclosure including his personal income tax returns for 2007 to 2014 inclusive by March 16, 2015. The Order also specified that on consent, the Respondent shall pay child support beginning January 1, 2015 and on the 1st of every month thereafter in the amount of $1,562.00. In accordance with section 24.1 of the Federal Child Support Guidelines, the parties were to provide updated income disclosure to each other within 30 days of the anniversary of the order. It appears that the Respondent agreed to pay child support commencing January 1, 2015 in the amount of $1,562.00 based on his estimated 2014 income. The purpose of the annual disclosure, which never happened, was to adjust those on-going payments for 2015. I am not persuaded that the wording of either Order was an implicit agreement by the parties to use the prior year’s income to calculate the on-going obligation.
[21] The determination of “annual income” for the purpose of the calculation of table support is set out in section 15 to 20 of the Federal Child Support Guidelines. In these circumstances, annual income is determined by the income set under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency (or line 150). Significantly, the Guidelines speak to child support being based on annual income, not the previous year’s income. Thus, to determine the support payable in a calendar year, the income for that calendar year is used. If, as in this case, the final income for the calendar year is not known until tax returns are filed and Notices of Assessment are exchanged the following March, then an adjustment or arrears may be owing for the prior year. In my view, in the absence of clear language or clear agreement to the contrary, this is the appropriate approach in this case.
[22] The Respondent’s income is now known and was as follows:
| Year | Line 150 Income | Monthly Table Support | # of Months Payable | Total of Annual Support Payable | Total Paid | Amount Owing / Arrears |
|---|---|---|---|---|---|---|
| 2015 | $116,328 | $1,671 | 12 | $20,052 | $18,744 ($1562 x 12) | $1,308 |
| 2016 | $144,286 | $2,010 | 12 | $24,120 | $18,744 ($1562 x 12) | $5,376 |
| 2017 | $120,746 | $1,725 | 12 | $20,700 | $18,744 ($1562 x 12) | $1,956 |
| 2018 | $117,953 | $1,692 | 12 | $20,304 | $18,744 ($1562 x 12) | $1,560 |
[23] For the years 2015, 2016, 2017 and 2018, the Respondent paid $1,562 per month or a total of $74,976 for these four years. Over these four years, the table amounts indicate that he should have paid child support totaling $85,176.00. Therefore, the arrears for the years 2015, 2016, 2017 and 2018 are $10,200.
[24] With respect to 2014, the Applicant submits that the Respondent owes her $6,408 in child support arrears. Her calculation is based on the following, and includes credit for 12 payments of $1,100 per month:
| Year | Line 150 Income | Monthly Table Support | # of Months Payable | Total of Annual Support Payable | Total Paid | Amount Owing / Arrears |
|---|---|---|---|---|---|---|
| 2014 | $113,357 | $1,634 | 12 | $19,608 | $13,200 ($1,100 x 12) | $6,408 |
[25] The Respondent submits that the parties agreed in 2016 that the arrears for 2014 were $7,000 and that he paid those arrears for 2014 in subsequent years. A Director’s Statement of Arrears from the Director of FRO shows that the arrears as of February 25, 2015 were $7,625.40. From this, while I may have been able to infer that the arrears for 2014 were around $7,000, I am not able to determine whether the Applicant agreed that the arrears for 2014 were $7,000 or how much of these arrears was paid by the Respondent. The email from Angela Murie to the parties setting out their agreement to the $7,000 sum is not admissible evidence that the Applicant agreed to those terms. Better evidence is required on this issue. I am also not able to determine on the evidence before me whether child support was payable in 2014 for 12 months or 10 months or less. There is some evidence before me that until February 24, 2014 the parents were equally responsible for the support of the children. I am also not able to determine on the evidence before me how much was actually paid by the Respondent in 2014 or in later years towards child support arrears for 2014. The Amended Support Deduction Order dated February 24, 2017 and the attached schedule do not help me determine the issue conclusively. Better evidence is required.
[26] If the parties are not able to agree on the issue of the 2014 child support arrears, a trial of an issue is required. The parties may proceed by filing their evidence in chief by affidavit with respect to how much child support was owing and paid by the Respondent for the year 2014. Cross-examinations will be limited to one hour each. The parties may make brief oral submissions on the issue. In my view, the trial of the issue need not be brought before me and can be scheduled at the request of the parties.
[27] Pursuant to the partial Final Minutes of Settlement signed February 12, 2019, the parties agree that no child support shall be payable as of that date. This is because Ryan, as of January 2019, started living with the Respondent while his brother continues to live with the Applicant. The parties’ income is similar. On the evidence and submissions before me, the parties agree that the Respondent owes $1,692.00 child support for the month of January 2019, and that there was an overpayment of child support by him when he was garnished $3,604.60 in February 2019. He is thus entitled to a credit of $1,912.00.
[28] I, therefore, find as a matter of fact that the Respondent is in arrears of child support for 2015, 2016, 2017 and 2018 in the amount of $10,200.00, less a credit of $1,912.00 for 2019 for a total of $8,288 payable forthwith.
[29] The Respondent’s child support obligation for 2018 set out above is based on his estimated line 150 income. A final adjustment based on actual line 150 income may be required once the requisite income tax information for 2018 is available. To this end, the Respondent is to provide his 2018 Notice of Assessment to the Applicant by May 30, 2019. The child support arrears amount ordered on today’s date for 2018 and January 2019 can then be adjusted accordingly to meet the table support amounts set out in the Federal Child Support Guidelines. Any amount owing is to be paid in a lump sum. No further future adjustment shall be made to the January 2019 amount payable. In other words, the January 2019 child support obligation is to be based on 2018 line 150 income (not the 2019 line 150 income) as an exception for that one month. This is so that this litigation can end without further need for disclosure of tax information in 2020.
[30] In my view, all of the issues in the Applicant’s motion to change have now been dealt with. Other than the issues now subject to an order, the motion to change is dismissed.
Order to Compel Production of an Order
[31] The Respondent asks for an order compelling the Applicant to produce the Order she claims she had to get from the courts to allow her and the boys to enter the matrimonial home after the Respondent allegedly locked them out. The Respondent asserts that this is a lie and that no such order exists. He further asserts that the Applicant created a false narrative for their children about him and seeks to compel her to produce this non-existent Order. I infer he would like to use her inability to produce the Order to prove to his children that events did not unfold as she had told them.
[32] I decline to make such an order. It is best for these children if both their parents would stop involving them in the litigation and the airing of their issues. It is best for these children if both parents would stop asking them to decide whom they believe. It is best for these children if their parents stopped trying to encourage or manipulate them to hold one parent or the other as the “bad” one. This conduct by the parents, of which there is ample evidence in the record before me, is simply toxic for these children. I will not make an order that will likely just add to the poison the children have had to live with as a result of the parties’ inability to keep their contempt for each other to themselves.
Further Changes to the Final Order
[33] The Applicant submits that she wishes to change the term of the Final Order respecting driving of the children. Perkins J.’s Order of 2007, which was maintained by an Order of Snowie J. in 2015, provides that:
- The party with whom the children are to be with shall be responsible for their pick-up at the home of the other at 7:00 p.m.
At the time this provision was made, on consent, the Applicant lived in Brampton and the Respondent lived in Scarborough. The Applicant now lives in Hillsburgh, and the Respondent lives in Bowmanville. The driving arrangement made by Perkins J. has been in place for almost 12 years. The arrangement means that each weekend, each party is driving at least one way. The Applicant would like to change this arrangement so that she is driving every other weekend both ways, while the Respondent is content to drive one way each weekend. This request was not made by the Applicant in her motion to change the Final Order dated April 14, 2014. Even if I had jurisdiction, I am not inclined to change the arrangement that has been in place for 12 years. There is a real interest in ending the on-going litigation for this family. The children are now 16 and 14 years old. Soon, they will be driving themselves.
[34] The Respondent seeks an order that the Applicant be prohibited from bringing any further motion to change without obtaining leave of this court, pursuant to Rule 14(21) of the Family Law Rules and s.140(3) of the Courts of Justice Act. I decline to grant such an order. Although the Applicant’s motion to change lingered somewhat, it was not frivolous or vexatious. In the end, the Applicant was entitled to some arrears of child support. The parties reached final partial minutes of settlement on other issues. The children may require ongoing support in the future, and as their circumstances change. Neither party should be unnecessarily restricted from bringing a motion to change if the circumstances so warrant.
Costs
[35] The parties are encouraged to agree upon appropriate costs for this motion. If the parties are not able to agree on costs, they may make brief written submissions to me (maximum two pages double-spaced, plus a bill of costs). The Applicant may have 14 days from the release of this decision to provide her submissions, with a copy to the Respondent; the Respondent a further 14 days to respond; and the Applicant a further seven days for a reply, if any. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves. If I have not received response or reply submissions within the specified timelines after the Applicant’s initial submission, I will consider that the parties do not wish to make any further submissions and I will decide on the basis of the material that I have received.