Court File and Parties

Ontario Court of Justice

Date: 2015-04-02

Court File No.: Goderich 1989-52

Between:

Linda Geraldine Beynen Applicant

— And —

Michael William Rintoul Respondent

Before: Justice Brophy

Heard on: 20 August 2014

Reasons for Judgment released on: 2 April 2015

Counsel

Norman B. Pickell ..................... Counsel for the Ministry of Community and Social Services (previously the Ministry of Community, Family and Children's Services)

Michael Rintoul ....................................................................... Respondent, on his own behalf

No appearance by or on behalf of Linda Beynen

BROPHY J.:

INTRODUCTION

[1] This is a Motion to Vary (now a Motion to Change) wherein the Respondent is the moving party. The original Motion was brought on 30 May 2003 and claimed a variety of relief related to custody and access issues, but also requested a suspension of child support for certain time periods and a fixing of arrears. Subsequently on 4 January 2008 the Respondent brought a further Motion seeking termination of child support and an order rescinding arrears. All of this related to the child Jonathan Beynen, now Jonathan Rintoul, born 8 July 1988.

[2] The relevant court orders were made by Justice Hunter on 18 February 1992 with respect to custody and by Justice Mackenzie on 19 December 1989 requiring the Respondent to pay child support to the Applicant in the amount of $200 per month commencing 1 January 1990. Those orders have never been varied.

[3] The Ministry of Community, Family and Children's Services, as it was then known, filed a Notice of Financial Interest in the original Motion to Vary on 11 June 2003. This was a function of an assignment that the Applicant had given to the Ministry with respect to social assistance she was receiving and her assignment of the child support payments to the Ministry in partial reimbursement of same.

[4] It should be noted that this matter has a long and mostly silent history because of two factors. Firstly, the Applicant had no interest in the matter with respect to custody and access after the child turned 18. The dispute then became a question of money and in 2007 the Applicant stopped attending court. She was noted in default on 12 February 2008 and her response was struck. Secondly, the Respondent lived in Alberta and became very ill. It was therefore difficult for him to travel. Because of his illness and financial circumstances his counsel had difficulties receiving instructions. Nevertheless the Ministry and the Respondent's counsel entered into protracted discussions with respect to settlement. With no progress being made, ultimately the court had to force the matter forward so that it could be brought to a conclusion.

[5] The matter came on for hearing on 20 August 2014 for a trial of an issue with respect to arrears of child support. The only participants in the hearing were the Respondent appearing for himself and the Ministry of Community and Social Services.

ISSUES

[6] The evidence in the record is uncontested that the child was no longer in school after 8 July 2006 when he turned 18 and as a result the child support is properly terminated as at 1 August 2006.

[7] The only remaining question was whether there were any residual child support arrears owing to the Ministry.

[8] There are several parts to this question however. The first is whether the Respondent was in fact in arrears in terms of the actual amount paid by him on account of his support obligation. The second question is whether he was entitled to pay the child support directly to the support recipient or was he required to pay it to the Family Responsibility Office. If he was required to pay it to the Family Responsibility Office then does that mean that any payments he made directly to the Applicant are not counted against his support obligation.

RESPONDENT'S POSITION

[9] The Respondent says that he paid child support in accordance with the court order dated 19 December 1989 either through government mandated payment programs or directly to the Applicant. He says that he paid the support directly to the Applicant after he was advised that she had withdrawn from the Family Responsibility Office and that he continued to do so until he was notified that the Applicant had re-engaged with the child support enforcement offices of the government.

MINISTRY POSITION

[10] The Ministry takes the position that the Respondent failed to pay in accordance with an assignment made by the Applicant and that consequently even if payments were made directly to the Applicant, which is not conceded, any such payments were in contravention of the assignments and therefore the money remains owing to the Ministry.

FACTS & DISCUSSION

[11] The evidence at the hearing of this matter consisted of the affidavits previously filed and the viva voce evidence of the Respondent.

[12] The statements provided by the Family Responsibility Office and the Alberta Justice Maintenance Enforcement Program are very confusing and are not easily reconciled. Without detailed evidence from the persons who have charge of those records it is difficult to extrapolate the exact sequence of events and payments.

[13] What is clear is that the support obligation began on January 1, 1990 in the amount of $200.00 per month as a result of the interim interim order. That quantum never changed. The support obligation clearly terminates on July 8, 2006. The total obligation therefore was $39,600.00.

[14] The Respondent had provided affidavit evidence previously indicating that he paid directly to the Applicant, the support recipient, the sum of $11,165.00. In his viva voce evidence he said that upon reviewing his records, which were under the control of his mother in Ontario, he had in fact paid directly $17,585.00.

[15] The claim by the Ministry is for $11,058.00. This includes the amounts owed to Ontario Works and the Counties of Huron and Bruce. The amount claimed pursuant to the assignment is $11,058.48 ($8,458.48 to the Ministry of Community, Family and Children's Service and $2,600.00 to Ontario Works).

[16] It is also clear from the record that the initial child support payments were made to the Family Responsibility Office pursuant to a standard support deduction clause that appeared in the original Order. However the evidence of Mr. Rintoul, and as confirmed by the payment records from the Family Responsibility Office, is that the Applicant withdrew from the Family Responsibility Office on May 10, 1990. His evidence is that after the Applicant had shown him papers confirming that she had withdrawn he began paying the child support directly to her.

[17] It would appear from the Family Responsibility Office records that the Applicant then resumed her involvement with the Family Responsibility Office on 1 July 1993. However the Respondent had moved to Alberta and started a new job in June of that year and his evidence is that he did not receive any notice from the Family Responsibility Office indicating that the Applicant had resumed her connection with their program. He goes on to say that the Applicant never informed him of her refiling with the Family Responsibility Office. As a result he continued to pay the child support to the Applicant directly.

[18] In September of 1998 he was advised by the Alberta Justice Maintenance Enforcement Program that he was required to make those payments to the Alberta program, which would in turn send them on to the Family Responsibility Office in Ontario. As a result on 18 February 1999 he started making payments to that program and after that date paid all money on account of child support through that office. His last direct payment to the Applicant was 10 September 1998.

[19] His evidence is that from 10 May 1992 until 17 July 1998 he did not know that the Applicant was involved with the Family Responsibility Office.

[20] The Respondent notes that he received from the Alberta Justice Maintenance Enforcement Program a credit on its ledger for $11,165.00. This was a credit for direct payments he had made. It is noteworthy that this is essentially the amount that is now a dispute and that it accrued between 1990 and 1999.

[21] In cross-examination the Respondent acknowledged that his Motion to Vary was brought in 2003 because of custody and access issues. He was not seeing his son in 2003 and thought he needed to change the custody and access order. The Motion was not brought because he was being chased for arrears, although he did ask for arrears to be rescinded because he wanted to clarify the support situation.

[22] The Respondent conceded that in his affidavits sworn in support of his Motions he said that he knew that the Applicant was originally filed with the Family Responsibility Office, however he did not say anything about actually seeing any withdrawal documents. He says that he should have elaborated upon that knowledge but did not do so in 2003 or 2007 because it was not something that was thought necessary by him or his counsel. Nevertheless the withdrawal from the program is corroborated in the Family Responsibility Office records and that in effect confirms what he was told by the Applicant in 1990.

[23] It is also acknowledged by the Respondent that there was an occasion when he directed a payment of $1,960.00 to the Applicant so that she would allow him to see his son. This direct payment was acknowledged and accepted by the two government enforcement agencies and as a result plays no particular role in this analysis.

[24] In cross-examination the Respondent also confirmed that he has had significant health problems for a long time, and in particular developed kidney problems in 2008 and was on dialysis for six years and has only recently received a kidney transplant. The Respondent acknowledged that when he became ill he missed some payments.

ANALYSIS

[25] The Respondent is the moving party and there is a burden on him to satisfy the court that he was entitled to pay the support recipient directly and that consequently the arrears, if they can be characterized that way, should be rescinded.

[26] The records from the Family Responsibility Office corroborate that the Applicant had removed herself from the government enforcement program. There is no evidence before the court that the Respondent was notified that the Applicant had returned to that program until he was advised about same by the Alberta enforcement agency in 1998.

[27] The Ministry argues that the court should not accept the evidence of the Respondent with respect to his knowledge of whether the Applicant was still subject to the support deduction order. The argument is that he lacks credibility because he failed to mention seeing the withdrawal notice in his affidavits and because he came to the hearing and for the first time advised that he had made direct payments in the amount of $17,585.00.

[28] The failure to mention that he had seen documents to that effect in his two affidavits does not impact upon the Respondent's credibility as he offers a rational explanation for same. He says that the issue related to the direct payments was not a major concern at the time of the preparation of those two affidavits. In any event whether he mentioned the issue or not, the reality is that the Ministry's own records confirm that the support recipient had removed herself from the program and this is corroborative of the evidence of the Respondent.

[29] As for the $17,585.00 amount, there are two things that can be said. The first is that it is not beyond comprehension that without the paper records being available to the Respondent that there could be a miscalculation. But more importantly the question of whether the quantum in question is $11,165.00 or $17,585.00 is beside the point. The Ministry claim is for $11,058.00, a number that is lower than the number advanced by the Respondent in the first instance.

[30] The main question is does the court accept that the Respondent was paying the child support directly to the Applicant from May of 1990 to September of 1998? The court does indeed find that to be the case. There is no evidence to the contrary and the evidence of the Respondent is capable of belief and is supported by the records of the Family Responsibility Office with respect to the withdrawal in 1990 and the reinstatement in 1993, and also the incidental acknowledgments by the Alberta Maintenance program of direct payments, and finally the records and documents produced by the Respondent.

[31] I accept the evidence of the Respondent that he paid directly to the Applicant in the period from 1990 to 1998 the sum of $17,585.00. His records support that calculation and his evidence is believed.

[32] The court also accepts his evidence that he was not aware of the resumption of involvement by the Applicant in the support enforcement program. His evidence is supported by the Family Responsibility Office records and there is no evidence produced by the Ministry that he was notified as to any change until 1998.

[33] The Ministry, however, also argues that in any event unless the original order is withdrawn the amount still needs to be paid to the director of the Family Responsibility Office.

[34] The Ministry relies upon Gordon v. Starr. This case related to a nonpayment of a costs order. It is not a case dealing with support. The issue to be decided was whether or not a moving party was barred from bringing a motion for noncompliance pursuant to rule 14(23). In paragraph 23 of the decision the court says the following:

Court orders are not made as a form of judicial exercise. An order is an order, not a suggestion. Non-compliance must have consequences. One of the reasons that many family proceedings degenerate into an expensive merry-go-round ride is the all-too-common casual approach to compliance with court orders.

[35] The Ministry argues that this case stands for the proposition that court orders, in this case a support deduction order, are to be followed to the letter regardless of external circumstances.

[36] However that argument does not answer the question as to what the support payor knew. Someone cannot be in breach of an order if they did not know that the order was in effect or that it was operative. When they reasonably believe that their obligations have come to an end, it cannot be said that they have to continue to follow the order.

[37] This is completely different than the situation in Gordon v. Starr where the defaulting party knew that the order was outstanding and chose not to comply with its terms.

[38] In my view in this case the Respondent was not bound to follow the support deduction order because he understood that the Applicant had removed herself from the program. This belief was reasonable under the circumstances.

[39] The Family Responsibility Office had a duty to put the Respondent on notice that the enforcement program was again involved and in failing to do so they cannot now complain that the Respondent did not comply with the order.

[40] Consequently I can find no fault in Mr. Rintoul paying the support recipient directly between 1990 and 1998, before he was advised by Alberta Justice Maintenance Enforcement that there was a new plan.

[41] The Ministry may want to make a claim against the Applicant for the payments they made to her while she was also receiving monies directly from the Respondent – but that is a separate matter and not for decision in this case.

[42] I am of the view that the Respondent was entitled to pay the child support directly to the Applicant from 1990 to 1998 and that he has paid his entire child support obligation.

CONCLUSION

[43] For all of these reasons, the following orders are therefore made:

(a) The child support is terminated as at 1 August 2006.

(b) The child support arrears, as claimed by the Ministry, are rescinded.

(c) The child support arrears generally are rescinded.

[44] If the parties wish to speak to costs they can arrange a time to do so with the Clerk of the court.

Released: April 2, 2015

Signed: "Justice Brophy"