Court File and Parties

Court File No.: Halton 194/13 Date: 2015-08-28 Ontario Court of Justice

Between:

Cindy Marie Bourassa, Applicant

— AND —

Ranjith Magee, Respondent

Before: Justice Victoria Starr

Heard on: June 9 and 23, 2015

Reasons for Judgment released on: August 28, 2015

Counsel:

• Cindy Bourassa on her own behalf
• Ranjith Magee on his own behalf

VICTORIA STARR J.:

Introduction

[1] This is the court's decision and reasons with respect to 3 motions brought by the father (which included a motion to change) and a cross-motion brought by the mother, which were heard all together on June 9, 2015 and June 23, 2015.

[2] The father's motions are to set aside, review and/or vary the child support (Table, section 7, arrears), custody, access, and costs provisions of the final order of Justice O'Connell dated August 9, 2014.

[3] The father also asks that this court replace those orders with a final order that grants him joint custody of, and unsupervised access to, the parties' son; re-determines the cost issues taking into account the costs he has incurred; reduce his support obligation, by basing support on his actual reported income; and, provide him with a credit against arrears equivalent to what he says he has paid directly to the mother. The mother opposes the father's motion. Her position is that there is no legal basis upon which the father can have the orders set aside, reviewed, or changed. If, however, the court disagrees, she too asks that this court make a final order on all of the issues.

[4] The mother's motion is to amend the August 9, 2014 order as well as two previous cost orders so that two things can happen: first, so that the cost orders can be enforced by the Family Responsibility Office ("FRO"); and, second, for the father's proportionate contribution towards child care costs be specified in terms of a percentage (30%) rather than the fixed monthly dollar amount. This latter amendment, the mother submits, will allow FRO to enforce a higher amount as the cost of child care increases, without the parties having to come back to court. The father opposed the mother's motions but did not make any meaningful submissions or put in any evidence in support of his opposition.

THE ISSUES

[5] The issues the court must decide are these:

(a) Should the custody and access provisions of Justice O'Connell's order dated August 9, 2014, be set aside, reviewed, or changed; and if so, what custody and access order should be made?

(b) Should the August 9, 2014 child support provisions (including section 7 expenses and the fixing and repayment of arrears) be set aside, reviewed, or changed; and if so, what is the father's child support obligation retroactively and prospectively?

(c) Should the cost orders dated February 19, 2014, March 18, 2014 and August 9, 2014, be changed?

(d) Should an order be made directing that the costs awarded to the mother on February 19, 2014, March 18, 2014 and August 9, 2015 are to be enforced by the FRO as an incident of support?

(e) Should the father's contribution towards section 7 expenses be expressed in a percentage rather than in a monthly dollar amount?

EVIDENCE AND DOCUMENTS REVIEWED BY THE COURT

[6] The documents and evidence, reviewed by this court with regard to these motions include:

(a) The father's Notices of Motion dated, November 5, 2014, March 30, 2015, and June 16, 2015

(b) The mother's Notice of Motion dated, February 23, 2015;

(c) Affidavit of the respondent, sworn June 16, 2015;

(d) Affidavit of the respondent, sworn June 17, 2015;

(e) Affidavit of the applicant, sworn, April 19, 2015 (loose, not filed in the Continuing Record);

(f) Affidavit of the respondent, sworn, April 24, 2015 (loose, not filed in the Continuing Record);

(g) Affidavit of the respondent, sworn March 30, 2015 (loose, not filed in the Continuing Record);

(h) Financial statement of the respondent, sworn August 26, 2014;

(i) Financial statement of the respondent, sworn March 27, 2015 (not filed in the Continuing Record);

(j) Affidavit of the applicant sworn February 23, 2015;

(k) Affidavit of the respondent sworn January 5, 2015;

(l) Affidavit of the applicant sworn December 29, 2014;

(m) Affidavit of the respondent sworn November 3, 2014;

(n) Documents Brief entitled : "Magee, Ranjith Disclosure Index" and consisting of 16 tabs, and with a filing stamp dated April 2, 2015;

(o) Three letters from TD Canada Trust, stapled together, addressed to Ranjith Magee, and dated March 24, 2015, dated March 25, 2015 and March 30, 2015;

(p) Documents Brief Entitled "Table of Contents" and "Respondent's Disclosure" with a filing stamp of June 17, 2015 (8 Tabs);

(q) Documents Brief entitled "Document Brief Financial" of the respondent that has a clear yellow plastic cover and back to it, consisting of 9 tabs, and with a filing date stamp of February 13, 2015 and,

(r) Three statements entitled "Umbrella Family and Children's Centres of Hamilton", dated January 5, 2015, April 10, 2015, and June 1, 2015 (not filed in the Continuing Record).

BACKGROUND FACTS AND FINDINGS

The Family

[7] The parties became involved in a relationship and lived together for approximately six months from June of 2012 to December 3, 2012, when they separated. Their son and only child is, Elliot Shiran Magee, was born on June 13, 2012 ("Elliot"). He is now three years old.

[8] The father has had no contact with Elliot since May 2013.

[9] The mother is employed at a bank.

[10] The father ordinarily works as an employed or self-employed chartered bus and limousine driver. As a self-employed person he also operates and brokers chartered bus tours. He has also been a volunteer ski and snowboarding instructor and a volunteer ski patrol, first responder.

The August 9, 2014 Final Order

[11] The mother brought an application in April 2013 for custody, access, child support, and costs. In the spring of 2014 she brought a motion to have the father's pleadings struck and for leave to proceed with her application on an uncontested basis.

[12] Justice O'Connell struck the father's pleadings, and proceeded with the mother's application by way of uncontested trial. Her decision and reasons with respect to the motion to strike and the mother's application are set out in Bourassa v. Magee, 2014 ONCJ 393.

[13] In her final order dated August 9, 2014, Justice O'Connell awarded sole custody to the mother and granted the father supervised access to take place at a supervised access centre. Built into the order was the condition under which the father could seek a review of access as follows:

The respondent's access to the child shall be reviewed once the father has established regular and consistent contact with the child, such that the child is comfortable in the father's presence.

[14] Justice O'Connell also, imputed an annual income of $50,000 to the father. Her final order dated August 9, 2014, requires the father to pay $450 monthly Table child support, beginning May 1, 2013 (the first day of the month following the commencement of the mother's application). She also ordered that the father contribute to child care costs by paying $120 per month which was the expression of his 30 percent share of those costs in a fixed monthly dollar amount. Arrears of child support were fixed at $3,500 and were to be repaid at the rate of $100 per month.

[15] Justice O'Connell built into her order the condition under which the father could seek to change the child support provisions of her order as follows:

The order is made without prejudice to the respondent being permitted to bring a motion, on proper notice to the applicant, to seek to change his financial support obligations in this order, without the necessity of proving there has been a material change in his circumstances, upon providing proof to the court that he has complied with the outstanding disclosure order made on January 7, 2014 and provided he has complied with his obligation to provide ongoing financial disclosure.

Cost Orders against the Father

[16] In the previous proceedings the following cost orders were made against the father in favour of the mother:

(a) $500 ordered on February 19, 2014;

(b) $500 ordered on March 18, 2014;

(c) $2,000 ordered on August 9, 2014.

Circumstances since the August 9, 2014 Final Order

[17] Since Justice O'Connell's order was made on August 9, 2014, the following has occurred:

(a) There has been no appeal of any of the orders that are the subject of these motions;

(b) The father has not paid any of the costs he was previously ordered to pay;

(c) The father has not exercised any access to Elliot whatsoever – bringing the total period in which he has had absolutely no contact with Elliot to two years;

(d) The father has made sporadic and minimal voluntary payments towards his ongoing child support obligation. He has made no payment towards the arrears of support;

(e) The father's driver's licence was suspended on February 22, 2015 by the FRO due to his failure to pay child support for his elder child, a daughter from a previous relationship;

(f) As his driver's licence is suspended, the father has not been able to work as a driver;

(g) At present, the father is working for himself as a "broker" of chartered bus and limousine services and tours.

Disclosure since the August 9, 2014 Order

[18] When he initially brought his motions beginning in November 2014, the father had not even come close to fully complying with the January 7, 2014 and August 9, 2014 disclosure orders. What compliance there has been, has been piecemeal, with the father producing more disclosure each time deficiencies were pointed out to him. In several instances, the disclosure the father says is included at a particular tab is either not included or not at the tab he specified.

[19] The situation of deficient disclosure continued right up to June 9, 2015, when the hearing of the motions started. Indeed, the June 9, 2015, hearing could not be completed due to a lack of preparedness on the part of the father, confusion about the evidence the father indicated he had filed with the court but did not actually form part of the evidentiary record, and the need for further evidence\disclosure from the father.

[20] From my review of the August 9, 2014 order, there are several items from the January 7, 2014 disclosure order that remain outstanding and for which no documentation, excuse or explanation has been provided. These include:

(a) Failure to provide a copy of all benefit information circulars or benefit booklets outlining all employee benefits for health care, dental care, prescription and life insurance, or, if no circular or booklet is available, a detailed statement from the employer or the group plan insurer outlining these benefits.

(b) Failure to provide copies of all T4 slips for 2014. Here I note that the father produced only one T4 for 2014 - a T4 issued by Attridge Coach Lines Inc. In his November 3, 2014 affidavit however he deposes that he is working as working as an employee for a company called VBL (manager Dan Vankleaf) in Hamilton. He did not list VBL as one of his own company's customers for 2014. There is no evidence upon which I can conclude that VBL and Attridge Coach Lines Inc. are the same company. I conclude from this that in 2014 he was working for VBL as an employee, rather than in some self-employed capacity, and as such the father would have been issued a T4 for 2014by VBL. HE has not produced such a T4;

(c) Failure to provide proof of any payments of support made directly to, or for the benefit of, the support recipient or a child (not through Family Responsibility Office) for the last 12 months. The index to the brief entitled "Table of Contents" filed June 17, 2015, indicates that Tab 8 contains document entitled "Child support Paid to Cindy to Date $4,430". There is nothing, however, behind Tab 8. At Tab 7 though (and also at Tab 15 of the brief entitled "Magee, Ranjith: Disclosure Index" filed April 2, 2015) there is a document entitled "TD E-Trans to Cindy All Child support to date: This document starts at November 15, 2012 and ends at March 30, 2015. It is a document that the father or someone else prepared for him showing a listing. It is not documentary proof that the payments listed thereon were made. It is not clear from the document, even if the payments were made, whether they reflect direct payments to the mother, indirect payments made to her via FRO, or a combination of both.

[21] To be clear, there are many other items the father was to produce but did not. The father has, however, given some explanation for why he did not do so. For example, his evidence and submission is:

(a) He has not produced T4 slips for 2011, 2012 and 2013 because he was self-employed and thus, not issued any. I accept this explanation;

(b) He does not have financial statements for any businesses or income and expense statements or a list of assets, liabilities and debts because he does not prepare such formal documents. His business income and expenses are all, he says, declared on his personal tax returns. I accept this explanation for 2011, 2012 and 2013 as his income tax returns for 2011, 2012 and 2013 show his business income and expenses;

(c) With respect to financial statements for 2014 and 2015, I note that he produced 2 typed documents in his June 17, 2015 Documents Brief which set out the sources of his self-employment income, how much he claims he was paid from each source, and his expenses. Interestingly, the only business expense he shows is HST.

[22] On June 9, 2015, I ordered that the father, among other things, produce the following disclosure:

(a) A copy of his 2014 income tax return filed with CRA along with documentary evidence from CRA that he has, in fact, filed his 2014 income tax return. The copy of the return provided shall include all information slips issued to him (i.e. T 45 etc.) and all schedules.

(b) A statement showing a breakdown of all monies received during the period of January 1, 2015 through to and including May 31, 2015 by him on account of his brokerage business (i.e. date received, how much received, from whom received, and for what purpose);

(c) A statement showing a detailed breakdown of the application/use of those monies right (what were they use for, what date) and how much of the money paid amounted to profit;

(d) A record of his employment from his last employer or if he does not have this, a letter from that employer setting out the date of the start and end of his employment with them, the total amounts paid to him in 2014 (gross), and the total amounts paid to him in 2015 (gross); and,

(e) An up-to-date statement of arrears issued by the Director of the Family Responsibility Office.

[23] The father did not comply fully with my order in that he did not provide items (a), (d) or (e), and what he provided on account of (c) was, for the most part, incomprehensible.

[24] Although there is extensive production in accordance with the father's obligation to provide disclosure pursuant to the January 7, 2014 order, I find that the father has failed to comply fully with that disclosure order. I also find that the father has not complied with his ongoing disclosure obligations pursuant to the August 9, 2014 order. Further, I find that he has failed to comply with the disclosure obligations set out in my June 9, 2015 order.

SHOULD THE AUGUST 9, 2014 ORDER BE SET ASIDE?

The Legislation, Rules, and Guiding Legal Principles

[25] A court may exercise its discretion and change an order, pursuant to Rule 259(19) of the Family Law Rules, O Reg 114/99, that:

(a) was obtained by fraud;

(b) contains a mistake;

(c) needs to be changed to deal with a matter that was before the court but that it did not decide;

(d) was made without notice; or

(e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.

[26] The case law establishes that the court does not have jurisdiction to set aside an order pursuant to any specific subrule contained in the Family Law Rules . It only has jurisdiction to change an order pursuant to subrule 25(19) for the reasons circumscribed in the subrule. See : Boivin v. Smith, 2010 ONCJ 411 and Ontario (Family Responsibility Office, Director) v. Dick 2013 ONCJ 198 - both cases applying the reasoning in DiCiaula v. Mastrogiacomo.

[27] In my view, the inquiry must begin and end with a determination of whether any of the circumstances described in subrule 26(19) exist, and if so, whether the presiding judge should change the order as a result. If not, then the order should not be changed.

[28] I am aware however, that some jurists have imported into the Family Law Rules , the set aside provisions set out in the Rules of Civil Procedure by applying subrule 1 (7) of the Rules. That subrule, these jurists conclude, permits the court to import the set aside provisions contained in the Rules of Civil Procedure and thus, the common law test for setting aside an order. In these jurists view, the Family Law Rules do not deal with the matter of when to "set aside" an order adequately. See: DaRosa v. Gillespie, 2013 ONSC 3072 ; Boivin v. Smith, supra and Ontario (Family Responsibility Office, Director) v. Dick, supra; Peterbilt of Ontario Inc. v. 156567 Ontario Ltd., 2007 ONCA 333; Chitel v. Rothbart, [1988] O.J. No. 1197 (Ont. C.A.) .

[29] The case law sets out the factors, at common law, for the court to consider when determining whether to change or set aside a default order or judgment:

(a) The moving party must move promptly after learning of the order to have it changed or set aside;

(b) The moving party must provide an adequate explanation for the default;

(c) The moving party must establish an arguable case on the merits;

(d) The moving party must act in good faith;

(e) The court should consider the prejudice that may be suffered by the responding parties to the motion;

(f) Rules concerning changing or setting aside default judgments are not to be applied rigidly; and,

(g) The ultimate determination is whether the interests of justice favour changing or setting aside the judgment.

[30] The following was added in the case of CCAS v. Tenisha S.:

(a) whether there would be non-compensable prejudice to the Applicant or the child if it was set aside; and,

(b) The necessity for bringing finality to disputes, especially where there are children.

Analysis

[31] Although I do not agree with those jurists who have expanded the court's jurisdiction under the Family Law Rules to permit an order to be set aside based on the common law test for doing so, I want to give the father the benefit of having his request considered using the more expansive interpretation of the court's jurisdiction. I have thus, applied and considered his request from both perspectives.

[32] The father cannot change the August 9, 2015 order pursuant to Subrule 25(19) as none of the conditions set out in that Rule have been met. I base this conclusion on the following findings:

(a) No one alleged that the August 9, 2014, order was obtained by fraud, contains a mistake, or that it failed to deal with a matter that was properly before the court;

(b) Although the father was not present at the motion to strike his paladins, he had notice of it. He chose not to attend the hearing, claiming, for the second time in a row, that he was ill. Justice O'Connell was aware of his reason and was not satisfied with it. His failure to participate in the trial was due to his pleadings having been struck as a result of his poor litigation choices; and,

(c) The father asked for and was given the opportunity by Justice O'Connell to be heard before the final order was made by way of written submissions. He chose not to follow the proper procedure to submit these;

[33] I would also not set the order aside because the interests of justice do not favour changing or setting aside the judgment, having regard to the following:

(a) The father did not move promptly after learning of the order to have it changed or set aside. The order was made in August 2014 and he did not bring his motion to have it set aside until November 2014;

(b) The father has not provided an adequate explanation for:

(i) Failing to attend at the hearing before Justice O'Connell;

(ii) Why he did not follow proper procedure when offered an opportunity to make written submissions following the hearing before Justice O'Connell;

(iii) The delay in moving to have the August 9, 2014 or previous cost orders aside;

(c) The father has failed to act in good faith in that:

(i) He has made minimal and very sporadic voluntary payments to wards his support obligation owed to Elliot (arrears or ongoing);

(ii) He has not paid any of the costs he was ordered to pay;

(iii) He has brought forth claims relating to custody and access that have absolutely no merit given that he has not even exercised access to Elliot since July 2013;

(iv) When he first brought his motion in November 2014, he had not complied with the disclosure orders of January 7, 2014 and August 9 2014;

(v) He still has not fully complied with the disclosure orders of January 7, 2014 and August 9, 2014 and he has now failed to comply with my June 9, 2015 disclosure order;

(d) The father has not established an arguable case for custody and access on the merits;

(e) The father has not established an arguable case for setting aside the cost orders;

(f) If this Court sets aside any portion of the August 9, 2014 order, there will be prejudice to the mother and child. That prejudice comes in the form of further delay in a final disposition of the issues. This mother has been in litigation since early 2013. She and the child have a right to finality. Further, it is not in Elliot's best interests for his mother to continue to expend her energy, time and money fighting claims that have no merit and virtually no chance of success. Her energy, time and money would be better devoted to meeting Elliot's needs – something the father is clearly not prepared to do.

[34] For these reasons the father's request to set aside the August 9, 2014 order is dismissed.

IS THERE A BASIS TO REVIEW THE ORDER?

Access

[35] Justice O'Connell ordered that the father was to have supervised access at a supervised access centre.

[36] The only variation permitted by Justice O'Connell relates to access, and in this regard her order is clear: access to the child is to be reviewed "once the father has established regular and consistent contact with the child, such that the child is comfortable in the father's presence".

[37] The father has not exercised any access whatsoever to the parties' son since he was about 12 months old - since July 2013. As such, the conditions which must exist to enable a review of Justice O'Connell's access order do not exist and no review is possible.

[38] For these reasons the father's request to change the custody and access provisions of the order of Justice O'Connell dated August 9, 2014 by way of "review" is dismissed.

Child Support

[39] Justice O'Connell ordered that the father pay child support including his proportionate share of the child's section 7 expenses. She directed that the father could apply to change the order for child support once he had complied with his ongoing disclosure obligations under the August 9, 2014, order and once he had fully complied with the January 7, 2014, order for disclosure.

[40] The father has not fully complied with either the disclosure orders of August 9, 2014 or that of January 7, 2014. In these circumstances, the father cannot rely upon the leave granted by Justice O'Connell in her August 9, 2014 order.

[41] For these reasons the father's request to review and change the child support provisions of the order of Justice O'Connell dated August 9, 2014 is dismissed.

SHOULD THE EXISTING CUSTODY AND ACCESS ORDER CHANGE?

The Legislation

[42] Section 29 of the Children's Law Reform Act, RSO 1990, c C.12, provides the statutory authority for varying a custody or access order. It states:

A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.

Analysis

[43] In her reasons for judgment released August 9, 2014, Justice O'Connell, sets out the basis for her decision to award the mother sole custody at paragraph 46:

46 Although the respondent stated at the case conference that he was seeking custody of the child, there is no basis for an order for custody to the respondent, given his lack of participation in the child's life since the parties separated in 2012 when the child was only six months old. Further, the evidence establishes that the parties do not communicate in any meaningful way. There will be a final order for custody to the applicant.

[44] The basis for Justice O'Connell's decision to award the father supervised access is set out at paragraph 48 of her reasons:

48 Given the very young age of the child and the fact that that respondent has not seen the child since he was twelve months old, it is in the child's best interests to develop a relationship with his father in a secure and supervise setting to re-establish a relations him with him. At this point, the respondent is a stranger to him. A supervised access facility will provide that opportunity to the child and the respondent and will also provide the court with neutral and independent evidence from professionals regarding the nature of the relationship and the development of the relationship between the father and the child.

[45] There is simply no evidence that remotely suggests that things have changed since the order was made.

[46] The father has had no contact with Elliot since the order was made. He gave no reason for not exercising the access Justice O'Connell granted him. As a result, he still does not know Elliot or have any knowledge of Elliot's current needs or the care he requires.

[47] There is no evidence to suggest that the parties have had any communications since the order was made, outside of these proceedings, let alone that that their communication has improved.

[48] For these reasons the father's request to vary the custody and access provisions of the order of Justice O'Connell dated August 9, 2014, on the basis of a material change in circumstances, is dismissed.

SHOULD THE EXISTING CHILD SUPPORT ORDER CHANGE?

The Father's Position

[49] The father submits that the August 9, 2014, order should be changed because:

(a) At no prior time in his employment history has he ever earned an income of $50,000 annually;

(b) His lifestyle with the mother during their cohabitation was not equivalent to one of someone earning $50,000;

(c) The mother's estimate of his income is not a proper basis for the court to rely on to support the level of income he was imputed to have; and,

(d) Since February 22, 2015 (the date when his driver's licence was suspended), he has been unable to work as a driver. As a result, his income now falls below the minimum income one must earn for there to be any amount payable under the Child Support Guidelines, O Reg 391/97 (the Guidelines ").

[50] In the father's view, the proper basis upon which to determine his child support obligation for the period prior to February 22, 2015, is to use his reported income – that is, the income he declared to the Canada Revenue Agency as reflected on his Notices of Assessment and income tax returns. From February 22, 2015 onwards, the father submits he should pay nothing in child support.

Applicable Legislation and Legal Principles

[51] Motions to change support are governed by subsection 37 (2.1) of the Family Law Act, RSO 1990, c F.3.

Powers of court: child support

37.(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,

(a) discharge, vary or suspend a term of the order, prospectively or retroactively;

(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and

(c) make any other order for the support of a child that the court could make on an application under section 33.

[52] The facts are sufficient in this case to justify a refusal on this Court's part to exercise the court's discretion under section 37(2.1). I have decided, however, to exercise my discretion and consider the father's request because there is now far more evidence available to the court as a result of the father's extensive productions, than was available to Justice O'Connell. I recognize that much of that evidence ought to have been available and was within the father's control to produce in the previous proceedings. Some of it was not however. Also, I want to make sure that the order for support remains fair and just in accordance with the Guidelines . Finally, I want to bring, as both parties have asked me to, some finality to the litigation. The only way I can see that happening is if the father is given the opportunity to have the evidence he has produced, thoroughly considered. In other words, the interests of justice favour considering the father's request and the evidence.

[53] This is a case where an order for support was made after the payor had his pleadings, a finding of imputed income was made, and, the payor has come forward claiming that the court set the level of support based on a level of income he claims he has never earned. It is similar to the situation discussed by Justice Pazaratz in the case of Trang v. Trang, 2013 ONSC 1980. As Justice Pazaratz notes, in such cases the payor has the responsibility (burden) of proving that the circumstances that gave rise to the finding of imputed income, have changed. At paragraph 46 of the Trang, supra decision, Justice Pazaratz states:

46. But if the original support order was based upon "imputed" income, a more comprehensive analysis is required on a motion to change. The court must consider:

a. Why did income have to be imputed in the first instance? Have those circumstances changed? Is it still appropriate or necessary to impute income, to achieve a fair result?

b. How exactly did the court quantify the imputed income? What were the calculations, and are they still applicable?

[54] It is with these legislative guidelines and legal principles that I have considered the father's request to change the order.

Have the Circumstances Giving Rise to the Need to Impute Income Changed?

[55] In her August 9, 2014, reasons for judgment, Justice O'Connell sets out the reasons why income had to be imputed to the father and the basis for her imputation of an annual income of $50,000 to him at paragraphs 3, 49 and 50:

3 The respondent is 43 years old and resides in the city of Brampton. He lives with his mother in her home. He advised the court that he works as an employed or self-employed chartered bus and limousine driver. He has also been a ski and snowboarding instructor. According to his sworn financial statement, dated August 26, 2013, that he filed in these proceedings on the same date, he is employed at Belca Tours and Coach Incorporated and his monthly income from is $3,016.67 or $36,200.00 annually. According to page 2 of the financial statement, this income is comprised of a monthly salary of $2,916.67 and monthly commissions, tips and bonuses of $100.00. This is the only financial statement filed by the respondent. There are no notices of assessments, t-4 slips, or pay stubs attached.

49 Regarding the determination of the respondent's income for child support and section 7 expenses, the applicant has filed evidence where she states that during their relationship, the respondent was earning between $50,000.00 and $60,000.00 annually, with self-employment or employment income as a chartered bus and limousine driver. This included the commissions and tips that he received from customers, mostly tourists. The applicant is aware that the respondent earns significant tips and gratuities when he crosses the border with tourists.

50 Given that the respondent's pleadings having been struck, based on the evidence before me, I find that income should be imputed at $50,000.00 and the respondent is therefore required to pay ongoing support of $450.00 commencing May 1, 2013 which is the first month after he was served with the mother's application for child support. I fix arrears at $3,500.00, taking into consideration that the father made some voluntary payments of $250.00 per month since that time.

[56] Based on her reasons for judgment, I find that it was necessary for Justice O'Connell to impute income to the father because of the father's failure to provide adequate financial disclosure. Further, I find that the only information that the court had available to it at the time, because the father's pleadings had been struck, was the mother's evidence and the father's financial statement sworn August 26, 2013.

[57] The circumstances, the lack of financial disclosure from the father at the time, have most certainly changed. This Court now has far more and quite extensive evidence about the father's circumstances, employment, and income than Justice O'Connell had before her. The change is the father's actual production of evidence. I find that the change occurred when the father brought his motion, in November 2014. As such, the father is entitled to seek a variation of child support from the date of the change onwards. That is, from November 2014 onwards.

What was the Father's Income from November 2014 Onwards?

Applicable Legislation and Legal Principles

Generally

[58] Both parents have an absolute responsibility to support their children to the extent that they are able to do so. The purpose of the Child Support Guidelines is to establish a fair standard of support that ensures that children continue to benefit from the financial means of both spouses after separation, using a methodology that strives to achieve objectivity, efficiency and consistency. Obodoechina v. Ayetor, [2013] O.J. No. 6066 (Ont. C.J.) ; Lee v. Lee; Milford v. Catherwood, 2014 ONCJ 276 (Ont. C.J.).

[59] Sections 15 to 20 of the Guidelines are the starting point for the calculation of a party's income for child support purposes. Section 15(1) provides that subject to section 15(2) , a spouse's annual income is determined by the court in accordance with sections 16 to 20 .

[60] Section 16 of the Guidelines provides that subject to sections 17 to 20 , a spouse's annual income is determined using the sources of income set out under the heading "total income" (line 150) in the T1 General Form issued by the Canada Revenue Agency, and by then making the adjustments provided for in Schedule III to the Guidelines. Schedule III includes an adjustment for union dues.

[61] Imputing income is one way for the court to gives effect to the joint and ongoing obligation of parents to support their children. Drygala v. Pauli; Stewart v. Turner, 2014 ONCJ 464 (Ont. C.J.); B. (G.T.) v. B. (Z.B.), 2014 ONCJ 382 (Ont. C.J.).

[62] Section 19(1) of the Guidelines permits the court to impute income. The subsections relevant to this case are:

19(1) Imputing income

The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

(a) the parent or spouse is intentionally underemployed or unemployed, other than where the under- employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;

(d) it appears that income has been diverted which would affect the level of child support to be determined under these guidelines;

(f) the parent or spouse has failed to provide income information when under a legal obligation to do so;

[63] The court can impute such amount of income to a parent as it considers appropriate in the circumstances.

Imputing Income Section 19 (1)(a)

[64] In Drygala v. Pauli (supra) the Ontario Court of Appeal set out the following three-part test to be applied in considering a request to impute income:

1. Is the spouse intentionally underemployed or unemployed?

2. If so, is this required by virtue of his or her reasonable educational needs, or the needs of the child of the marriage, or arising from reasonable medical needs?

3. If the answer to #2 is "no", then the court must decide whether to exercise its discretion to impute income and, if so, in what amount.

[65] In the case of Tillmanns v. Tillmanns, 2014 ONSC 6773, Justice Pazaratz reviews the general principles that apply to the imputation of income under section 19(1)(a). These principles, which are adopted by me in this case, are set out below.

[66] There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their dependants.

[67] Courts have a significant degree of discretion when imputing income.

[68] The onus is on the party seeking to impute income to establish that the other party is intentionally underemployed or unemployed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made.

[69] If the court is not satisfied that the support payer is intentionally under-employed, the inquiry ends there. But once intentional underemployment is established the onus shifts to the payor to show one of the exceptions of reasonableness.

[70] "Intentionally" means a voluntary act. It does not apply to situations beyond one's control. A parent is intentionally underemployed if that parent chooses to earn less than he or she is capable of earning having regard to all of the circumstances.

[71] The court does not need to find a specific intent to evade child support obligations or bad faith in order to impute income.

[72] A parent cannot avoid child support obligations by a self-induced reduction of income.

[73] Where the payor claims they have simply been unable to find employment, the absence of evidence of reasonable job search efforts will usually cause the court to conclude the payor is intentionally underemployed or unemployed.

[74] The court will not excuse a payor from their support obligations or reduce those obligations where the party has persisted in un-remunerative employment, or where they have pursued unrealistic or unproductive career aspirations.

[75] Persistence in non-remunerative employment or self-employment may entitle the court to impute income.

[76] If a party chooses to pursue self-employment as an alternative income earning path the court will examine whether this choice was reasonable in all of the circumstances, and may impute an income if it determines that the decision was not appropriate having regard to the parent's child support obligations.

[77] Reckless behaviour which diminishes income earning capacity may also result in income being imputed.

[78] If a court finds a payor is intentionally underemployed or unemployed, a court cannot arbitrarily allocate an imputed income. There must be an evidentiary basis for the income level to be imputed.

[79] The court must consider many factors including the age, education, experience, skills and health of the party; his or her past earning history; the standard of living during the parties' relationship; and the amount of income the payor could reasonably earn if they worked to capacity. The court can also consider the pattern of income — usually during the three years leading up to termination of employment — to determine an amount that is fair and reasonable.

[80] A person's lifestyle can provide the criteria for imputing income.

[81] Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them. A history of deceptive behaviour or unreported income will increase the likelihood of income being imputed.

[82] An adverse inference should not, in and of itself, support imputing any amount income that one party requests. There should be a proportionate connection between the extent of the adverse inference that the Court is being asked to draw and the evidence provided.

The Evidence

The Father's Employment, Representations, and Reported Income

[83] Despite the varying descriptions the father has given about the nature of his work, I find that throughout the years he has operated as an employee, an independent contractor for various companies, and as a self-employed chartered bus and limousine tour operator and broker. His own company is a sole proprietorship and is called "Ran Livery and Coach" (a.k.a. Ran Livery Driver, Ran Livery Coach, and Ran Livery Broker).

[84] The father's evidence is that his income for child support purposes in 2011, 2012, and 2013 as reflected in Line 150 of his 2011 – 2013 income tax returns or notices of assessment:

(a) 2011 (as per his 2011 notice of assessment), his total Line 150 reported income was $11,063;

(b) 2012 (as per his 2012 notice of assessment), his total Line 150 reported income was $11,489 and

(c) 2013 (as per his 2013 notice of assessment), his total Line 150 income for that year was $10,562.

[85] The father gave no clear statement as to what his 2014 income was and his evidence in this regard is inconsistent and confusing. For example:

(a) In his November 3, 2014, affidavit he says that he expects the combination of his monthly gross earnings from employment and self-employment to approximate $16,676.52 annually [$1389 gross monthly earnings (including tips) x 12 months];

(b) In his financial statement sworn Match 30, 2015, he declares his previous years' income from all sources was $16,809.55".

[86] In a brief entitled "Table of Contents" filed June 17, 2015 the father indicates that his 2014 income tax return is at tab 2 and his T4 for 2014 is at tab 3. Despite what he deposes, there is no copy of his 2014 income tax return included in this brief. What is in this brief at various tabs is this:

(a) A T4 issued by Attridge Coach Lines Inc. showing gross income of $8,932.41;

(b) A document entitled "Statement of Business for 2014". The total income he reports on this document, after HST is deducted, is $5,553.88;

(c) The first page of his T1 General 2014 (which has no helpful information whatsoever about his earnings on it);

(d) A document called "Executive Summary" for 2014 Taxation Year" which lists his Line 150 income for 2014 as $10,892.

[87] Given the conflicting, confusing, incomprehensible nature of much of the evidence and the lack thereof, including the missing T4 I noted earlier for 2014, I cannot, with any degree of confidence, determine what the father's actual reported or declared earnings are for 2014. What is clear is that the father has asserts, depending on the document that one looks at, that it is either as low as that which he claims he reported to CRA of $10,892 or at its highest, $16,809.55 – what he deposed on his latest financial statement.

[88] Determining the father's 2015 year-to-date income is even more difficult. Again, the father gave no clear statement as to what his 2015 income is and his evidence is again inconsistent and confusing. For example:

(a) The father's evidence is that in 2015 he was continuing to work for VBL. HE makes no mention of working for 744457 Ontario Ltd. in his evidence. He produced, however, one pay stub for 2015. It was issued by 744457 Ontario Ltd. - Veteren's Taxi located in Hamilton. There is no evidence indicating whether VBL and 744457 Ontario Ltd. - Valentine's Taxi are one and the same company. I have given the father the benefit of the doubt and assumed they are;

(b) The pay stub that the father produced for 2015 issued by 744457 Ontario Ltd. covers the period of January 8, 2015 to January 21, 2015. It shows that during that two week period he worked 50 hours, was paid $15 per hour, and had year to date gross earnings of $1,050.

(c) His evidence was that he began working for VBL in 2014 and continued to work for them in 2015. The June 9, 2015 order required the father to produce "a record of his employment from his last employer or if he does not have this, a letter from that employer setting out the date of the start and end of his employment with them, the total amounts paid to him in 2014 (gross), and the total amounts paid to him in 2015 (gross); his record of employment or proof of year-to-date earnings from them. The father produced none of these things;

(d) The document entitled "Statement of Business for 2015" shows that he performed work for as a self- employed person for only one company, his own, Ran Livery. The gross income reported here, after deducting HST, is $1,076.51. The period covered is not identified. As I ordered him on June 9, 2015 to produce a statement showing all year to date earnings up to that date, and this is all he has produced, I conclude that this is the period covered. This disclosure puts his year to date earnings at $1,076.51. After adding this amount to the amount in the forgoing paragraph, it appears that the father's evidence is that the total income he has earned between January 1, 2015 and June 9, 2015 is $2,126.61 ($1,050 plus $1,076.61 = $2,126.61). This prorated over a 12 month period would equate to $4,253.22 ($2,126.61/6 x12).

(e) In his financial statement sworn Match 30, 2015, the father deposes that he currently receives $1,389 in self-employment income per month plus $100 in tips for a total monthly of $1,400.79 or $16,809.55 annually.

[89] Given the conflicting, confusing, incomprehensible nature of much of the evidence and the lack thereof, I cannot, with any degree of confidence, determine what the father's actual year-to-date earnings are. I rely upon his evidence as set out in his sworn financial statement of March 30, 2015. Based on that, I find that even with his driver's licence suspended, the father's own projections of what his 2015 reported income is and will be $16,809.55 annually – an amount that is about $6,000 higher than in 2011, 2012, 2013 and 2014, all years when his driver's licence was operable.

Imputing Income – 19(1)(d) and 19(1)(f)

[90] The mother's evidence is that the father earns cash income including tips commissions that he does not declare which artificially deflate his income. In these ways, she submits, the father is diverting income that would otherwise be included in his income for child support purposes. She believes the father's income is no less than $50,000 - considerably more than that which he has declared.

[91] The mother correctly points out that the father has provided very little evidence to substantiate prove the expenses that he has claimed as business expenses are legitimate business expenses. The father claims they are all legitimate but failed to provide any meaningful or understandable documentation to substantiate any of the claimed expenses on his 2012 and 2013 income tax returns. As he failed to comply with my order that he produce his 2014 income tax return, there is no real way at all to tell what expenses were deducted other than HST.

[92] The mother also gave evidence that she knows the father has undeclared income because during their relationship, he was earning between $50,000.00 and $60,000.00 annually, with self-employment or employment income as a chartered bus and limousine driver. This included the commissions and tips that he received from customers, mostly tourists. She gave evidence that she is aware that he earned significant tips and gratuities when he crosses the border with tourists.

[93] The father denies that the mother's evidence about his earnings while the parties were together, their lifestyle and that he had or has any unreported earnings. His evidence is that he does earn tips but only about $100 a month and often he has to use that money to cover the associated business expenses. Further, there are many times when no tip is given at all.

[94] I placed very little weight on the mother's evidence that the father earned $50,000 - $60,000 during the relationship based on lifestyle because it lacked any detail, is highly speculative, and quite arbitrary.

[95] I accept the father's evidence that he has business expenses and it is logical that sometimes he receives tips and sometimes he does not. It is also logical that some of his tips or commissions would have to be applied to cover his own expenses associated with the tours and trips such as meals, accommodations, etc. Having said this, the father has not kept good records, or if he has, he has not produced them. He simply has not provided sufficient reliable and credible evidence to prove that his tips and commission earnings are minimal (i.e. about $100 per month) or that he has included these in the amounts he has declared to CRA, [particularly for 2014.

[96] It is also very clear from the evidence that it would be very easy for the father to receive payment for work done or in the form of tips and commissions and not declare that income.

[97] All of these factors coupled with the lack of record keeping and evidence (including the conflicting evidence) suggest that the father has a significant ability to, and is, diverting income which would affect the level of child support to be determined under these Guidelines .

[98] I also find that the father's evidence that his reported or declared earnings to CRA are an accurate reflection of his earnings in 2011, 2012, 2013 and 2014 is not credible. Neither are his representations to this Court with respect to his income in each of these years and in 2015.

[99] I base this finding on the discrepancies and deficiencies in the evidence discussed above and on the fact that those reported earnings are dramatically at odds with the evidence set out in his various financial statements. For example, in his financial statement sworn March 30, 2015, the father shows monthly personal expenses totaling approximately $1,582.01 or $18,984.17 annually. He also shows no assets to speak of other than two watches and a laptop; and, that he has no debts, except for the arrears of child support owed in the amount of $29,171.17, and an outstanding small claims court judgment against him in the amount of $10,000. This is a similar financial statement to that which he swore on August 26, 2013. In that statement he deposed that his income for 2012 was $35,000, and for 2013 he projected his income to be $36,200.04. He also showed annual expenses in his budget of $37,920. That financial statement lists virtually the same assets as his most current financial statement with the exception of some small savings, and the same $10,000 debt on account of a court judgment.

[100] Without corresponding debt or some explanation as to how he covers $18,984.17 in personal expenses per year now, or the $37,920 in personal expenses in 2013, without incurring debt, or earning a far greater amount in gross income, the conflict in the evidence is irreconcilable and his evidence is not believable.

[101] As the burden of proof is on the father to prove his income, the conflict ought to be resolved in favour of the child – the person to whom the duty to support is owed. I therefore draw an adverse inference that the father's evidence, including his evidence about his "reported" or declared" earnings is not credible and does paint accurate or reliable picture of his true income for child support purposes.

[102] For these reasons I make two further findings: I find the father has diverted and unreported income and thus, this is an appropriate case to impute income to him pursuant to 19(1) (d) of the Guidelines . I find that the father has not complied with a legal obligation to provide information about his income for 2014 and 2015. As a result, it is also appropriate in this case to impute income to the father for 2014 and 2015 pursuant to section 19(1) (f).

Imputing Income – 19(1)(a)

[103] The facts in this case support an imputation of a much higher income to the father than that which he reports or declares pursuant to 19(1) (a) of the Guidelines . That is, on the basis that the father is intentionally underemployed and not maximizing his income earning potential. I have reached this conclusion based on the considerations set out below.

[104] First, at all material times the father reports income has been well below that of a full time employee earning minimum wage – about $22,000 per year.

[105] Second, the father did not give any evidence to explain why his reported earnings are so low or to explain why he has persisted in employment that does not even yield an income equivalent to minimum wage.

[106] Third, the father gave no evidence about any job search efforts he has made, or about any efforts he has made to supplement his self-employment income with other income, such as from working as a full-time driver, a first responder, ski patrol, or a ski or snowboard instructor – all things he is qualified to do and has, at least with respect to work as a driver and first responder, and ski patrol – extensive training and experience.

[107] Fourth, the father's evidence did not reveal anything that would justify his underemployment.

[108] Fifth, when asked why he persisted in such under-remunerative employment and self-employment, his response was simple and three-fold:

(a) He did not realize that he was earning so little;

(b) The amount of hours he could work as a fulltime driver, and thus his income if he worked full time as a driver for a company, would depend on work being available;

(c) He chooses to be available to drive his elderly mother to and from appointments and to assist her in caring for his autistic nephew.

[109] I find, based on the evidence before me that the father has persisted in non-remunerative and under-remunerative employment and self-employment. His decision to pursue self-employment as an alternative income earning path and to persist in that under-remunerative employment was and is not a reasonable one. It was and is not an appropriate decision having regard to his child support obligations.

[110] The onus was on the father to provide sufficient evidence to satisfy the court that circumstances existed or exist to justify his decision to earn less than even minimum wage, and not to look for alternative or supplementary alternative employment. The father's evidence overall was either non-existent, lacked any detail, or failed to link the issue to his ability to work and maximize income. None of the circumstances he raised either singularly or collectively satisfied the Court that his failure to maximize his income is justified.

[111] For these reasons I find that the father has been intentionally under-employed since 2011 pursuant to section 19(1)(a) of the Guidelines and that additional income should be imputed to him throughout this time frame. I turn next to that issue.

The Level of Income to Impute to the Father

[112] It is not difficult to assess how much income the father was and is actively earning or was an is capable of actually earning based on the father's evidence and submissions. In considering this issue I placed significant weight on:

(a) The father's evidence in his 2013 financial statement that he had earned $35,000 in 2012 and his expectation that he would earn $36,200 in 2013;

(b) The father's admission during his submissions that a driver working full time would earn about $35,000 to $45,000 annually;

(c) A minimum income of at least $30,000 is consistent with what is reflected on the pay stub that he produced for 2015 issued by 744457 Ontario Ltd., covering the period of January 8, 2015 to January 21, 2015. That paystub shows that the father's rate of pay was $15 per hour. If his hours were full time it would have yielded a gross income of $31,200 ($15 x 40 hours x 52 weeks).

(d) According to the forgoing pay stub the father's year-to-date gross earnings for 2015 were $1,050. If this pattern of hours over a two week period had continued, his employment with this company would have yielded a minimum gross income of $27,300 ($1,050 x 26 pay period = $27,300).

(e) The father is able to supplement his employment income with income from self-employment as a chartered bus tour operator and broker. He could also supplement it by working in a paid position of first responder on ski patrol. I heard no evidence that he has looked for such paid positions or that such positions are not available and as such, I draw a negative inference in favour of the mother, that such positions exist;

(f) If the father maximized his income earning potential by supplementing it in the forgoing ways he could easily earn additional income. When coupled with additional income from such things as commissions and tips, I find he is capable of earning a gross income of $50,000.

[113] I also considered and find that this father is relatively young, about 44 years old and there is no evidence to suggest that his health is anything but good. The evidence is clear as well that he is a highly certified, qualified, and experienced driver and first responder. In this regard I point out the following:

(a) He has an absolutely clean abstract and CVOR record;

(b) He currently holds, although it is presently suspended, a BZ licence and can transport 72 infants or children without restriction through North America.

(c) His evidence is that he is a volunteer first responder and has repeated his latest annual certification in November 2014, enabling him to rescue, transport and assist injured individuals, including infants, children and adults, in all medical emergencies. He has renewed the certification for Advance First Responder for the last 23 years and AED Defibrillation certification for the last 10 years.

[114] Based on all of these considerations I find that the father is earning or is capable of earning $50,000 per year. I therefor impute an annual gross income to the father for child support purposes in the amount of $50,000.

The Suspension of the Father's Driver's Licence

[115] The evidence is that the father has an ongoing support obligation for his daughter from a previous relationship in the amount of $285.58 per month and that he is in arrears on account of that support obligation somewhere in the range of $29,171 to $33,608.54. The evidence is also clear that the father's driver's licence was suspended by FRO on account of those arrears on or about February 22, 2015.

[116] The father submits that the suspension of his driver's licence prevents him from obtaining and maintaining employment as a driver. As such, he submits his income effective February 22, 2015 is minimal and consists of what he is able to earn as chartered limousine and bus tour broker. He asks that, effective February 22, 2015, his child support obligation be reduced to zero.

[117] There are a number of cases which stand for the proposition that the Court should not exercise its discretion to vary support or to reduce and rescind arrears when the reasons for loss of employment, unemployment, or underemployment is due to the payor's own misconduct.

[118] In Costello v. Costello, 2012 ONCJ 399, Justice Zisman, focused on the public policy issue of whether a support payor's child support obligation should be reduced when the reasons for loss of employment are due to his own conduct. At paragraphs 34, 40, and 60, she says:

34. In this case, the father lost his employment because he chose to drink and drive and was subsequently arrested and convicted.

35. I adopt the reasoning of Justice Czutrin in the case of Luckey v. Luckey wherein he stated as follows:

Should the dependent children also have to pay the price of this loss of employment? A court will grant relief of support where the payor loses the ability to provide support for reasons beyond the payor's control.

The courts have long recognized that where a payor parent quits his or her employment for selfish or for "bad faith" reasons, the courts will not grant a variation of support based on a material change in the means of the Applicant.

After all, as the court comments in Ronan v. Douglas Walsh (1994), 5 R.F.L. (4th) 235 (Ont. Prov. Div.) at page 238:

.....a payor spouse who has contracted to pay child support in a separation agreement and then quits his or her employment or changed the nature of his or her employment in bad faith should not be able to rely on that change.

60. Based on all of these factors, I would not exercise my discretion to vary the father's current support obligation. The father certainly cannot expect a court to exercise its discretion to reduce his child support obligation, when he loses a well paying job because of his own reckless behaviour, fails to abide by court orders for disclosure, fails to provide any proof of any sincere efforts to find alternate employment and when he is content to work part-time for minimal income.

[119] Following the same reasoning, Justice S.B. Sherr states, in the case of Caine v. Ferguson, 2012 ONCJ 139, at paragraph 25 :

25 The respondent completely failed to comply with the order and as a result, had his driver's licence suspended. He cannot use his own misconduct as a shield against a support claim or as a justification to reduce support arrears. See: Luckey v. Luckey, 1996 CarswellOnt 2237; Marucci v. Marucci, 2001 CarswellOnt 4349; Sherwood v. Sherwood . The consequences of his actions should be borne by him and not his dependants. See: Baldini v. Baldini .

[120] The circumstances in this case are similar to those in Caine v. Ferguson, supra. I see absolutely no reason not to apply the same principles and reasoning as were applied in that case and in the other cases discussed above. The father in this case failed to comply with the order requiring him to pay support for his daughter and as a result, had his driver's licence suspended. He cannot use his own misconduct as a shield against a support claim or as a justification to reduce support arrears. The consequences of his actions should be borne by him and not his son.

[121] In all of these circumstances (including the fact that the $50,000 per annum I have found the father is earning or is capable of earning in 2014 and 2015, is the exact same level of income Justice O'Connell imputed to him in her August 9, 2014 order), I find that the father has not met his evidentiary onus. I am not prepared to exercise my discretion to vary the child support order of Justice O'Connell dated August 9, 2014. The father's claim in this regard is dismissed.

[122] In all of the circumstances and given that this court has now conducted a thorough analysis of the father's evidence, it is appropriate to declare that paragraph 9 of Justice O'Connell's August 9, 2014, order which states as follows, is terminated.

The order is made without prejudice to the respondent being permitted to bring a motion, on proper notice to the applicant, to seek to change his financial support obligations in this order, without the necessity of proving there has been a material change in his circumstances, upon providing proof to the court that he has complied with the outstanding disclosure order made on January 7, 2014 and provided he has complied with his obligation to provide ongoing financial disclosure.

SHOULD THE FATHER RECEIVE A CREDIT TO HIS CHILD SUPPORT ARREARS ?

[123] The father wants a credit towards his arrears equal to all the payments that he made between November 15, 2012 to date, which he claims total $4,430.

[124] Justice O'Connell fixed arrears from May 2013 to August 9, 2014 at $3,500. This figure, according to her judgment takes into account all of the payments she found the father should receive credit for up to that point. I have not set aside that order and as such, I cannot go behind it and replace it with a different order.

[125] The mother's evidence is that the father has made one payment of $250 in October 2014, $50 in November 2014, $50 in December 2014, and $50 in February 2015 towards ongoing child support. The mother's evidence matches the father's evidence for this period save and except that the father includes one more payment – a payment of $25 in March 2015. Her evidence is also that he has paid nothing towards the $3,500 in arrears, and given his history of payments since the order was made on August 9, 2014, is in significant greater arrears of support.

[126] It is clear from the mother's evidence that the FRO is enforcing support. To ensure that the father would receive a credit for any payments from August 9, 2014 onwards, I ordered the father to produce an up to date an updated statement of arrears from FRO. He did not do so. As a result of his breach of my June 9, 2015 order and his failure since January 7, 2013 to produce proof of all payments of support made directly to the mother, I find the father's claim without merit and I dismiss his claim for any additional credit for payments made between November 2012 to date.

SHOULD THE COST OF SECTION 7 EXPENSES AND DAYCARE BE EXPRESSED IN A PERCENTAGE?

[127] At paragraph 51 of her August 9, 2014 Reasons for Judgment Justice O'Connell states:

51 I also order that respondent pay his proportional contribution to the child's section 7 expenses, including the child's day-care expenses. The applicant has proposed that the respondent's contribution be 30 percent of the section 7 expense, which is very reasonable in the circumstances. The applicant has provided evidence that her daycare expense is $400.00 per month. The respondent's contribution therefore is $120.00 per month, commencing September 1, 2014.

[128] The problem, according to the mother, is that the day care costs have increased since the order of August 9, 2014 and unless the August 9, 2014 order is amended to state a percentage rather than the specific dollar amount of $120 ordered by Justice O'Connell, it is unenforceable at the increased amount

[129] Based on the evidence before me, I am satisfied that the child remains enrolled in daycare and that the monthly cost of daycare varies and is now greater than the $400 a month it was at the time when Justice O'Connell made her order. I am not prepared, however, to amend Justice O'Connell's order so that the fixed dollar amount of the father's contribution towards the child's section 7 expenses (including his contribution towards daycare) is replaced by a percentage - 30%.

[130] I am not prepared to make the order that the mother seeks for several reasons, including:

(a) In her submissions the mother stated that her income is currently about $100,000. There was no evidence to support this submission or upon which I could make a finding with respect to her income – no sworn financial statements, notices of assessment, income tax returns, or pay stubs for 2015 showing gross year to date earnings. Without this evidence, I cannot be satisfied that a 30% contribution from the father is still fair and appropriate;

(b) Section 7(3) of the Guidelines stipulates that the court must take into account any tax credits, benefits and deductions when determining the amount of the expense to be shared. There is no evidence as to the after tax cost of daycare. It may be that the after tax cost to the mother, the portion that it is be shared by the father, is much less than the before tax cost to the mother given the changes in her income;

(c) I am not satisfied that FRO will be able to enforce an unspecified order and ever changing amount as it would be very difficult to do so. I cannot see FRO, reviewing the mother's receipts each month, calculating the father's 30% share of those receipts, and then taking the steps to enforce a different amount each month. In any event, this would be unfair to the father as he would never know how much FRO expects him to pay until FRO enforces the amount;

(d) Such an order would, in effect, allow the mother to circumvent the whole motion to change process that parties are directed in Rule 15 of the Family Law Rules to follow when they seek to adjust a support order based on a changes in either the nature or amount of a section 7 expense, or, in the event that a party's income has changed, as it has occurred here in the mother's case.

[131] For the foregoing reasons, the mother's motion to amend the August 9, 2014 order to express the father's contribution towards daycare at 30% rather than in the fixed monthly dollar of $120 is dismissed.

SHOULD COSTS AWARDED TO THE MOTHER BE ENFORCEABLE BY FRO AS AN INCIDENT OF SUPPORT?

[132] The father acknowledges the three outstanding costs orders. He also acknowledges that the total of the awards is $3,000 and that he has not paid any of the costs.

[133] I have reviewed the endorsements that correspond with each of these costs orders and find as follows:

(a) The $500 awarded to the mother on February 19, 2014 relates solely to the mother's success on a motion that she brought relating to travel to the Dominican Republic;

(b) The $500 awarded to the mother on March 18, 2014, relate to costs thrown away as a result of the father's failure to attend court that day for the hearing of the mother's motion to strike the father's pleadings;

(c) The $2,000 awarded to the mother on August 9, 2014, relate to the motion to strike the father's pleadings and to the uncontested trial.

[134] It is the father's own fault that the March 18, 2014 and August 9, 2014 cost orders were made. Had he complied with his disclosure obligations, presented a case with merit, and participated properly in the proceedings and in accordance with the Family Law Rules , the costs orders may have been different or not made at all.

[135] The father did not appeal any of the cost orders. I am required to assume that they are correct and I cannot go behind the orders to substitute my own decision.

[136] The father's submission is that the amount of costs should be changed once the court has determined what his support payments should have been and should be, as well as once the court has determined his request for costs and repayment of the overpayment he may have paid to the mother to date in child support. What the father wants can be achieved if the father is awarded costs at a future date. Until then, he owes the mother $3,000 in costs and he must pay them.

[137] For these reasons the father's claim as it relates to the three cost orders is dismissed.

[138] The mother asks that I amend the three cost orders so that they can be enforced by FRO. Her evidence is that her Case Manager from the FRO has told her that the FRO will not enforce any of the cost orders because the orders do not specify that these costs were incurred for child support and maintenance and should be enforced by the FRO.

[139] The $500 awarded to the mother on February 19, 2014 has nothing to do with child support. I am not prepared to grant the mother's request that these be enforced by FRO.

[140] The $500 awarded to the mother on March 18, 2014 and the $2,000 awarded to her on August 9, 2014, are directly, but not exclusively, related to the issue of child support and ought to be enforced by FRO.

[141] The mother's request for an order directing that the costs awarded to her on March 18, 2014 and on August 9, 2014 be enforced by FRO is granted.

SHOULD THE FATHER'S ABILITY TO LITIGATE BE CIRCUMSCRIBED?

[142] The mother asks that the court direct that the father be barred from filing any materials with the court and from appearing before the court until such time as he has complied with the previous orders for disclosure and payment of costs.

[143] Subrule 1 (8) of the Family Law Rules sets out that if a person fails to obey an order in a case, the court may make any order it considers necessary for a just determination of the matter, including:

(a) An order for costs

(b) An order dismissing the claim

(c) An order striking out any pleading (including documents on motion to change), financial statement or any other document filed by a party.

(d) An order that all or part of a document the court ordered produced, and was not, may not be used in the case

(e) If the breach is by a party, that the party is not entitled to any further order in the case, unless the court orders otherwise.

(f) An order postponing the trial

(g) On motion, a contempt order.

[144] Rule 1(8) is also sufficiently broad to allow the grant of a stay of a claim, where it is necessary for a just determination of the case, and where there has been a wilful failure to follow the Rules or obey an order in the case. The phrase "just determination" is sufficiently wide to include protecting the integrity of the administration of justice, and that is what is at stake if a party willfully disobeys an order. See: Hughes v. Hughes; Martin v. Martin, [2005] O.J. 4567 (Ont. S.C.J.) ; Wreggbo v. Vinton, 2013 ONCJ 250.

[145] At paragraph 41 of her August 9, 2014 reasons, Justice O'Connell had this to say about the father's conduct:

41 The respondent has refused to comply with three court orders for financial disclosure made over an eight month period. He has refused to pay the cost orders made against him. He is in arrears of child support, missing the monthly payments of support based on the arbitrary amount of $250.00 per month that he has chosen to pay. These proceedings have been ongoing now for 16 months. It is a fairly straightforward application for custody and support.

[146] Not much has changed since August 9, 2014, with respect to the father's egregious conduct. For example:

(a) He has failed to comply fully with four different disclosure orders (The June 9, 2015 order as well as the three Justice O'Connell refers to);

(b) He has failed to pay any of the costs that he has been ordered to pay;

(c) He filed three separate notices of motion, all asking for similar relief;

(d) He brought a motion to change child support in the middle of the hearing of his other two motions, although not made using the prescribed form;

(e) He failed to ensure that all of his material was properly filed in the continuing record;

(f) He took unreasonable positions and made claims in which he had no chance of success such as his request to vary the custody and access provisions of the August 9, 2014 order.

[147] The father's actions caused delay in the adjudication of the issues both in these proceedings and in those which proceeded before Justice O'Connell. They also necessitated several court attendances that ended up being a waste of time as he was not properly prepared. They caused the mother to unnecessarily take time off from work and put her to considerable stress financially and emotionally. He essentially embarked upon a "war by attrition". This is to say nothing of the effect his actions have had on the administration of justice through his unreasonable and unnecessary consumption of the court's time and resources.

[148] In the circumstances and relying upon the discretion given to me in Rule 1 (8) of the Family Law Rules and the directive to deal with cases justly in Rule 2(2) and 2(3) , I find that it is fair and appropriate for the court to limit the father's access to litigation. Requiring the father to obtain leave of the court in the manner set out below, before taking any further steps or seeking any further relief from the court, is the best way to prevent the father from abusing the process and from depleting the mother's time and emotional and financial resources in future. This is accomplished by allowing the court to be the gatekeeper at the preliminary stage. It is also the only way to bring some measure of finality to the litigation and in that way serves the best interests of the child.

CONCLUSION AND FINAL ORDER

[149] For all of the foregoing reasons there shall be a final order as follows:

1. The father's motion to set aside, vary, review and change the custody and access order of Justice O'Connell dated August 9, 2014 is dismissed;

2. The father's motion to set aside and change the cost orders made by Justice O'Connell on February 19, 2014, March 18, 2014 and August 9, 2014 is dismissed;

3. The father's motion to set aside, review, and change the child support provisions of the order of Justice O'Connell dated August 9, 2014, is dismissed;

4. The father's motion to change the child support arrears provisions of the order of Justice O'Connell dated August 9, 2014, is dismissed;

5. The mother's motion to amend the order of Justice O'Connell dated August 9, 2014 such that the father's contribution towards daycare be expressed in terms solely of a percentage rather than as a dollar amount, is dismissed;

6. The costs of $2000 ordered payable to the mother by the father by order of Justice O'Connell dated August 9, 2014 and the costs of $500 ordered payable to the mother by the father by order of Justice O'Connell dated March 18, 2104, shall both be enforced by the Family Responsibility Office as an incident of child support;

7. Paragraph 9 of the order of Justice O'Connell dated August 9, 2014 is hereby terminated.

8. The father is precluded from bringing any further motions, applications, and from taking any other steps in this Ontario Court of Justice which name the mother as a party, until such time as he has:

(a) Paid the ongoing child support amount consistently for a period of 12 consecutive months; and,

(b) Paid the sum of $100 per month minimum towards arrears of child consistently each month for a period of not less than 12 months;

(c) Paid all outstanding cost awards made in favour of the mother; and,

(d) Obtained leave of the court in advance to take the step he proposes.

9. Where the father seeks to take a step or to commence further proceedings in this Ontario Court of Justice which name the mother as a party, the following steps must be taken by the father:

(a) He shall apply for leave by way of 14B motion made on notice to the mother;

(b) He shall submit, with his 14B motion, an affidavit wherein he confirms that he has complied with terms set out in the forgoing paragraph (paragraph 8), and which has attached to it documentary proof of said compliance;

(c) He shall submit with the 14B motion, all documentation that he intends to rely upon in relation to the proposed step or proceeding he seeks leave to take.

10. The mother is to, if she wishes to seek costs, serve and file written cost submissions (not to exceed 3 pages, double spaced, in 12pt. Ariel font) along with a Bill of Costs and any offers to settle that she has made. She is to serve and file this material by September 4, 2015. The father shall serve and file any response, by September 10, 2015 (length not to exceed 3 pages, double spaced, in 12pt. Ariel font). Any Reply by the mother is to be served and filed by September 14, 2015 (not to exceed 1 page, double spaced, in 12pt. Ariel font).

11. This matter adjourned to September 16, 2015 at 3:00 p.m. for decision and reasons with respect to costs to be delivered orally. If no cost submissions are filed with the court, the issue will be dismissed and the date vacated so that the parties need not attend on September 16, 2015.

12. A separate Support Deduction Order shall issue.

Released: August 28, 2015

Signed: "Justice Victoria Starr"