Higgins v. Higgins, 2007 ONCA 663

CITATION: Higgins v. Higgins, 2007 ONCA 663

DATE: 20070927

DOCKET: C45815 and C46036

COURT OF APPEAL FOR ONTARIO

CRONK, ARMSTRONG and MacFARLAND JJ.A.

BETWEEN:

IVY JOAN HIGGINS

Applicant (Respondent)

and

MALCOLM McNEILL HIGGINS

Respondent (Appellant)

Ivy Joan Higgins in person

Malcolm McNeill Higgins in person

Eleanora Julia Fisher in person

Heard: April 20, 2007

On appeal from the order of Justice Craig Perkins of the Superior Court of Justice (Family Court Branch) dated July 25, 2006 (C45815) and the order of Justice Clifford S. Nelson of the Superior Court of Justice (Family Court Branch) dated September 6, 2006 (C46036).

Armstrong J.A.:

[1] Malcolm Higgins and Eleanora Fisher appeal the order of Perkins J. of the Superior Court of Justice dated July 25, 2006 pursuant to which Mr. Higgins and Ms. Fisher are required to produce certain documents in these divorce proceedings.

[2] Mr. Higgins also appeals the order of Nelson J. of the Superior Court of Justice dated September 6, 2006 pursuant to which Mr. Higgins is ordered to pay to Ivy Joan Higgins certain amounts for child support pursuant to s. 7 of the Federal Child Support Guidelines, P.C. 1997-469 (the "Guidelines").

[3] All three parties to these appeals are unrepresented.

Factual Background

[4] Mr. and Mrs. Higgins were married on August 7, 1982. There are four children of the marriage: Alyshia age twenty-one, Heather age nineteen, Kenny age seventeen and Paul age sixteen. During their marriage, Mr. and Mrs. Higgins were involved in a paralegal business related principally to appearances in traffic court. They separated in 2004 when Mrs. Higgins learned that her husband was involved in a relationship with Ms. Fisher.

[5] Divorce proceedings, including claims for corollary relief and equalization of net family properties and other property claims, were commenced by Mrs. Higgins against her husband on January 14, 2005. To say that these proceedings have been acrimonious would be a gross understatement.

[6] By consent order dated February 21, 2005, Mr. Higgins agreed to pay $1,054 per month in child support for all four children. In June 2005, one of the two boys, Kenny, moved in with his father. The other three children remained with Mrs. Higgins.

[7] Subsequently, Mrs. Higgins obtained orders for additional child support for the three children remaining with her and for retroactive spousal support of $2,200 per month. Mr. Higgins fell seriously into arrears of his support obligations. Eventually, his pleadings were struck as a result of his ongoing default in payment. Also, Mr. Higgins made an assignment into bankruptcy.

The Disclosure Order

[8] On July 25, 2006, Mrs. Higgins brought a motion before Perkins J. of the Superior Court of Justice for document production from both Mr. Higgins and Ms. Fisher.

[9] The motion judge ordered Mr. Higgins to "provide by August 25, for the last fiscal year and for current fiscal year, all documents and information set out in Notice of Motion, paragraph 3". Paragraph 3 of the Notice of Motion requested the following:

An Order requesting all the current financial records from Mr. Higgins, business and personal, and any account he has access [sic], in his name or as secondary. Including photocopies of cheques, front and back. His deposit books (without names blocked out), cash receipts, and court records, and court books. Records of the income he makes from other paralegals that he subcontracts from as well as the court appearances he does on behalf of Mrs. Fisher's various businesses.

[10] The motion judge ordered Ms. Fisher to "provide all documents and information set out in the Notice of Motion, paragraph 2 deleting client names and contact information from any documents provided by August 25th". Paragraph 2 of the Notice of Motion requested the following:

An order for Mrs. Fisher to provide ALL of her financial records from Jan. 2003 (prior to meeting Mr. Higgins Sept. 2003) to present date. Including credit card applications, and all statements for accounts that she has access [sic], in her own name, or as a secondary card holder. All bank accounts that she has access [sic] and/or signing authority on, business and personal. ALL financial records of her various companies, "We Fight Tickets Inc.", "Traffic Court Defense Inc." (for which she was sued), "Dismiss Traffic Court Agents Inc." (virtually identical to our company name of 16 years), "Sure-Win Legal Services" and "Ticketfixx" (a newly purchased business), any other companies she has access [sic] of any sort. Loan/credit line application, bank statements, life insurance policies, or ones to which she is the beneficiary, stocks, bonds, etc. All details of her accounts, statements deposit books, cash books, court books, business and personal. Income receipts, in the form of cheques, Mastercard, Visa, cash, Amex. A copy of the lease agreement on her house that she rents (and Mr. Higgins pays for) from her father's numbered company and copies of the checks (front and back) that she pays the rent or cash receipts if paid in cash. Details of who claims the rental income. Anything being held in trust for her or her children. Copies of her 2003, 2004, 2005 income tax, personal and business.

[11] Mr. Higgins and Ms. Fisher appeal the above disclosure orders.

The Child Support Order

[12] On September 6, 2006, Nelson J. granted Mrs. Higgins' motion for an order requiring Mr. Higgins to pay the following amounts for special or extraordinary expenses pursuant to the Guidelines as follows:

1. $6,116.58 for the child, Alyshia Lynn Higgins born February 27, 1986 college costs for 2006-07;

2. $7,815.00 for the child, Heather Dyanna Higgins born November 2, 1987 university costs for 2006-07;

3. $100.00 per month commencing September 1, 2006 for the child, Paul Jaymes Higgins born August 13, 1991 bus transportation to his new high school – as due; and

4. 100% of the child, Paul Jaymes Higgins born August 13, 1991 soccer/hockey/curling and football expenses – as due.

[13] Mr. Higgins appeals the above order requiring him to pay special or extraordinary child support.

The Bankruptcy of Mr. Higgins

[14] As indicated above, Mr. Higgins made an assignment in bankruptcy. In the bankruptcy proceedings, Mrs. Higgins opposed an application made by Mr. Higgins for his discharge from bankruptcy. On April 26, 2006, the Registrar in Bankruptcy, while granting an adjournment of the application for a discharge, made an endorsement that provided in part:

Additionally, there appears to be an issue that the family law action, at Nmkt, is proceeding with respect of claims which are covered by the BIA Stay without a section 69.4 BIA order having been obtained. This must stop.

Adjournment request granted, matter is returnable Nov 02/06 at 2:00 pm ½ day, preemptory [sic] on the opp cred. It is a term of this adjournment that the opp cred abide by the stay and not proceed with any claims against the bankrupt in Family court or elsewhere which are covered by the stay without obtaining leave of the bankruptcy court.

[15] When the application for discharge came on again before the Deputy Registrar in Bankruptcy on November 2, 2006, he observed in his endorsement that Mrs. Higgins had brought a number of motions in violation of the Bankruptcy and Insolvency Act and the order of the Registrar referred to above, dated April 26, 2006. He then ordered that Mrs. Higgins advise the Superior Court in Newmarket of the endorsement of the Registrar dated April 26, 2006. The Deputy Registrar included the following in his endorsement:

While it is not for this court to direct the court dealing with the family law matters on how it should proceed, these two matters (the bankruptcy and the equalization portion of the family law matter) and the allegations raised in them seem to be so intertwined that a case conference seeking direction in the family law matter might give direction to this court as well as how to proceed. I am therefore ordering the Opposing Creditor and the Bankrupt to request a case conference before the court dealing with their family law matter seeking directions with respect to the interrelationship between these proceedings and this, including the impact of the BIA stay on those proceedings.

Lastly I order both the Opposing Creditor and the Bankrupt to give notice to the trustee in bankruptcy of all proceedings in the family law matter, including the request for a case conference, so that the trustee may be present to represent the interest of the Bankrupt's estate.

The Bankrupt's Application for discharge is adjourned sine die.

[16] Mr. Higgins raises Mrs. Higgins' failure to advise Nelson J. of the Registrar's order as a ground of appeal in respect of the support order. Mrs. Higgins says that if she did not advise Nelson J. of the order of the Registrar in Bankruptcy dated April 26, 2006 when she obtained the order for additional child support, her failure was due to lack of knowledge on her part and not for any improper purpose. In any event, the brief endorsement of Nelson J. states, "support orders are not stayed", which suggests that he was at least aware of the bankruptcy.

Should the Court hear the appeals of Mr. Higgins?

[17] There is a serious question as to whether the court should entertain Mr. Higgins' appeals, given that he made no effort to move to set aside the order striking his pleadings. In my view, we should not hear the appeals for the following reasons. First, pursuant to rule 10(5)(b) of the Family Law Rules, O. Reg. 114/99 he is not entitled to appeal the orders in question. Rule 10(5)(b) provides :

If a respondent does not serve and file an answer as this rule requires, or if the answer is struck out by an order, the respondent is not entitled to participate in the case in any way… [Emphasis added]

[18] While there may be some cases in which a court should grant relief from the strict operation of this rule, in my view, this is not one. As noted, Mr. Higgins has made no serious effort to comply with his ongoing support obligations. In these circumstances, he is not entitled to special consideration from this court.

[19] Second, in respect of the disclosure order, that order is clearly interlocutory and no appeal lies to this court. I am of the view that the support order is also interlocutory in that it does not finally determine the child support issues as between the parties. Indeed, in his endorsement, Nelson J. notes that he is changing a previous "temporary" order made by another judge based on the current cost of education. There has not yet been a trial in this matter. This can hardly be characterized as a final order, and no appeal to this court lies from it.

[20] Third, and in any event, given the circumstances of this case, and in particular Mr. Higgins' failure to make any serious effort to pay the ongoing support owed to Mrs. Higgins, this court has discretion to decline to hear his appeals pending compliance. See Dickie v. Dickie (2007), 2007 SCC 8, 279 D.L.R. (4th) 625 (S.C.C.).

[21] Given my conclusions on Mr. Higgins' status to bring these appeals, it is unnecessary to deal with the issue raised by the order given by the Registrar in Bankruptcy. That said, I do observe that ss. 69.41(1) and 121(4) of the Bankruptcy and Insolvency Act, R.S. 1985, c. B-3 provide that the stay of proceedings against a bankrupt person set out under s. 69.3(1) of that Act does not apply to claims for child or spousal support under any court order or agreement. However, what the scope of that provision may be is better left to another case.

[22] In view of the fact that Mr. Higgins is not entitled to proceed with his appeals because of the prohibition in rule 10(5)(b) of the Family Law Rules and further in view of the fact that both orders against him are interlocutory, I would quash his appeals. It is therefore unnecessary to exercise this court's discretion pursuant to Dickie. I would grant Mrs. Higgins her costs of both the appeals on a partial indemnity scale. Mrs. Higgins may make submissions as to the quantum of costs in writing within ten days of the release of these reasons, limited to three pages double-spaced.

The Disclosure Appeal of Ms. Fisher

[23] Ms. Fisher is not a party to these proceedings. The order against her is a final order as the issue between her and Mrs. Higgins is finally determined. Ms. Fisher therefore has a right of appeal to this court.

[24] In my view, the order against Ms. Fisher is far too broad. It requires her to provide all of her financial records, without limitation, from January 2003 (prior to meeting Mr. Higgins in September 2003). The order then goes on to detail an exhaustive list of financial documents which, with one exception, are not in any way limited to Mr. Higgins.

[25] What Mrs. Higgins is entitled to by way of financial disclosure from Ms. Fisher should be limited to financial and business transactions between Ms. Fisher and Mr. Higgins insofar as they reflect Mr. Higgins' financial position since September 2003.

[26] I would therefore allow Ms. Fisher's appeal and set aside paragraph 2 of the order of Perkins J. dated July 25, 2006. In its place, paragraph 2 shall provide that all documents and information in respect of financial and/or business transactions between Ms. Fisher and Mr. Higgins since September 2003 including through companies owned or controlled by Ms. Fisher or in which she has an interest, shall be produced and client names and contact information are to be deleted from such documents. Such documents and information are to be produced within 60 days of the release of these reasons. This order is without prejudice to Mrs. Higgins' right to apply for further disclosure should the circumstances require it.

[27] Ms. Fisher is entitled to her costs of the appeal and the costs of the appearance before Perkins J. on a partial indemnity scale. Ms. Fisher may make submissions as to the quantum of costs in writing within ten days of the release of these reasons limited to three pages double-spaced. Mrs. Higgins may respond to the costs submissions in writing limited to three pages double-spaced within seventeen days of the release of these reasons.

RELEASED: "Robert P. Armstrong J.A."

"SEP 27 2007" "I agree E.A. Cronk J.A."

"EAC" "I agree J. MacFarland"