Court File and Parties

Court File No.: Toronto DFO-11-10070 – B1

Date: 2020-11-03

Ontario Court of Justice

Between:

M.B., Applicant

— AND —

A.F., Respondent

Before: Justice Alex Finlayson

Heard on: September 21, 2020

Reasons for Judgment released on: November 3, 2020

Counsel:

M.B. on her own behalf

Jared Teitel, counsel for the respondent

ALEX FINLAYSON J.:

PART I: NATURE OF THE TWO MOTIONS BEFORE THE COURT

[1] The overall proceeding, currently before this Court, is the applicant mother's Motion to Change child support for the parties' 11 year-old son, A.B. The respondent father has made claims of his own, in his Response to Motion to Change.

[2] The governing child support order that each side seeks to vary is the Final Consent Order of Justice Murray dated June 1, 2017. It is the third Final Consent Order that this Court has made in various rounds of litigation that have come before this Court over the past almost 10 years. Specifically, this is the third Motion to Change child support and overall, it is the fourth round of litigation concerning child support for A.B.

[3] This most recent, Final Consent Order of Murray J. dated June 1, 2017, was negotiated by way of Minutes of Settlement that were then incorporated into the Order. Both parties had counsel and financial disclosure at the time they entered into their child support agreement. Among other things, the Final Consent Order provides that the father will pay child support for A.B. in the amount of $360 per month commencing April 1, 2017, based on "imputed" income of $40,000.00, and $300 per month for section 7 expenses. Neither the Order, nor the Minutes set out the mother's income for the purposes of section 7 expenses, nor the type of section 7 expenses being shared, nor the total amount of section 7 expenses being shared. The father explains that income was imputed to him at the time because he did not have his 2016 tax return.

[4] The father is a salaried, T4 employee. He works as a full-time driver and technician for a coffee company. He earns $20.00 per hour. His Line 150 income in 2019 was $43,488.55. For the past several years (including 2016 and 2017: ie. the years prior to and of the June 1, 2017 Final Consent Order), the father earned in the low to mid $40,000 per annum range. The "imputed" amount to which the parties agreed in their Minutes and the Final Consent Order of June 1, 2017 is not far off the mark from his Line 150 incomes over the past several years.

[5] The father says he does not fully know what the mother does for a living. He believes that she is in receipt of ODSP. The mother's prior financial statements, which she did not file or update for the purposes of these motions, suggest this as well. However, in a recent decision of the Superior Court to which I was referred in the mother's motion material, also involving the mother, a judge of the Superior Court recently said that the mother is employed. See for example E.M.B. v. M.F.B., 2020 ONSC 2474 at ¶ 8.

[6] Despite this history of the father earning employment income, the mother's position in the Motion to Change is that the father is concealing income. She believes that he is more affluent than he claims, and that he must have considerable hidden resources. She seeks to impute an income to him on various grounds, including based on an alleged lifestyle. Similar lifestyle allegations were made in the prior rounds of the litigation, too.

[7] The mother wants the Court to impute an income to the father of over $100,000.00. The mother's Motion to Change also asserts that the date of retroactivity should precede the most recent Final Consent Order of Murray J. dated June 1, 2017, and perhaps it should go back as far back as 2013.

[8] To support her arguments that more income should be imputed to the father and that the Court should make an additional disclosure order too, the mother relies on the father's old joint bank account statements. The mother already had four years of the father's old joint bank statements in her possession (from January 2013 to January 2017) at the time she commenced this Motion to Change. She obtained those statements, in part as a result of a temporary consent Order dated June 9, 2015, made in the prior round of the litigation between the parties. She has gone through them, added up various deposits, and highlighted various other transactions.

[9] However, the mother was represented by competent counsel, both at the time that she obtained that previous temporary consent Order for production of his bank statements, while she had the bank statements in her possession subsequently, and when she entered into not one, but two previous Final Consent Orders of this Court, dated October 6, 2015 and June 1, 2017. Neither of those two Final Consent Orders determined the father's income to be anywhere near the level the mother now alleges it is. And for this Court to now vary child support retroactively as the mother would have the Court do, this Court would have to disregard both of those prior, Final Consent Orders.

[10] It is not just additional income that the mother asks the Court to impute to the father, consequently resulting in an increase to the table amount of child support. The mother also claims an above Guideline amount of child support. Specifically, in her Motion to Change, the mother says that the father should actually be paying child support of $2,000 per month, and section 7 expenses of $2,000 per month, retroactively. This amount, if ordered, would exceed the father's total gross annual income in any of the years in issue.

[11] It is in this context that on September 21, 2020, I heard two motions brought within the current proceeding, one from the mother and one from the father. Initially, only the mother brought a motion. The mother's motion came before me as a result of her successful appeal of the Order of Sirivar J. dated December 6, 2018, dismissing an earlier disclosure motion. As I will explain, neither this Court, nor the Superior Court sitting on appeal, dealt with the mother's first disclosure motion on its merits, however. Rather, the appeal was allowed on fairness and procedural grounds.

[12] On January 15, 2020, I scheduled the mother's renewed motion, to be heard on a date in July. The Court was prepared to hear it earlier, but the mother asked for a timetable for the exchange of materials that spanned over months. Then, the mother did not proceed with her motion in July, and instead sought an adjournment based on reasons related to Covid-19.

[13] On June 10, 2020, the Court rescheduled the mother's disclosure motion to September 21, 2020. I also granted leave for the father to bring a cross-motion for summary judgment that day, to be heard on the same September date. The Court gave the parties a full day for argument on September 21, 2020.

[14] I initially understood the mother's renewed motion was supposed to be for disclosure only. And it is true that the mother's motion does contain a number of requests for disclosure. However, the mother also asks to question the father pursuant to rule 20(5) of the Family Law Rules, and separately, she asks for a 60-minute cross-examination of the father "per the October 1, 2018 Endorsement of Justice E. Murray, to assess [the father's] credibility".

[15] Those are not her only requests. The mother claims other relief not only in her Notice of Motion, but in the various other documents that she has filed as well. For example, beginning at paragraph 364 on page 55 of her affidavit dated April 30, 2020 (but sworn June 29, 2020), the mother says that there should be a "change of venue", that documents should be removed from the Court file to remove "unnecessary clutter", that the father's cross-motion for summary judgment should be dismissed because it was "improperly brought", that notwithstanding her request in the Notice of Motion for 60 minutes of cross-examination in addition to questioning, there should also be a hearing with "unlimited" cross-examination of the father, that she is entitled to costs, and that the father pay her a penalty of $100 per day, if he fails to produce disclosure.

[16] Beginning at paragraph 293 on page 33 of her reply affidavit sworn July 13, 2020, the mother has added a request that the father's pleadings should be struck. At paragraph 205 on page 29 of her affidavit sworn August 21, 2020, the mother asks for the various substantive and other orders that are set out in her Motion to Change. That would include the main substantive relief in the overall Motion to Change, even though she is opposed to the father's cross-motion in which he asks the Court to dispose of the Motion to Change finally, on its merits.

[17] As I have said, the father has brought a cross-motion for summary judgment because he wishes to bring the litigation in this Court to its timely conclusion. He says that neither a trial, nor any additional disclosure, are required, and that neither should be ordered. But what he is really asking for is not that the Motion to Change be dismissed in its entirety (as certain paragraphs of his Notice of Cross-Motion dated April 23, 2020 say), but rather for summary judgment on the child support claims.

[18] The new final Order he seeks would be based on his calculations of his income, and thus the corresponding child support amount that flows from the table. His position is that no additional income from a personal injury settlement he received in 2017, relating to a motor vehicle accident in which he was involved back in 2013, should be imputed to him. Rather, child support should continue to be based on his Line 150 income, as has always been the case. The father also asks for a change to the section 7 expenses, based on the argument that some of those section 7 expenses are no longer being incurred.

[19] Retroactivity back to 2017 was not seriously disputed by the father. To be clear, both sides would have this Court adjust the father's support at least back to the date of the June 1, 2017 Final Order, to account for fluctuations to the father's income since the date of that Order; the mother would have the Court go back further. They also disagree on the amount of the adjustment.

[20] Finally, the father seeks an order to prohibit the mother from commencing another round of litigation. While the father's request is principally framed in his Notice of Motion as a request that the mother is a vexatious litigant under section 140 of the Courts of Justice Act, that is not something that this Court may grant; only the Superior Court may do so. Nevertheless, during oral argument, the father's counsel tailored the request to fit within relief that this Court may grant.

[21] What is in issue in this litigation is entirely disproportionate to the steps and positions the mother is taking, or that she wishes to take. Quite apart from the other places across her motion material in which she claims various disclosure and other relief, the mother's Notice of Motion alone is 6 pages long. It contains some 27 paragraphs of relief. Some of those 27 paragraphs have subparagraphs.

[22] The mother brought the initial disclosure motion, an appeal, and now this renewed disclosure motion, despite the fact that the father has already produced comprehensive disclosure, disclosure charts, a certificate of financial disclosure, updating disclosure after his initial productions, explanations as to what does not exist, and explanations as to the basis for his refusals to fulfil some of the disclosure requests. The mother's motion is brought in the face of the father's abundant disclosure, which reveals that the increase to table child support, to which the mother is entitled, is much less than she claims. Furthermore, the father has already adjusted his table child support voluntarily, or through interim consent orders, since the June 1, 2017 Final Consent Order, to 'top up' child support as there have been fluctuations to his income from time to time. The end result is that he will owe her only a relatively small amount of arrears (compared to that for which the mother argued) since the date of Murray J.'s last Order.

[23] The mother is clearly spending much of her time pursuing this law suit, and she is taking numerous steps within it. For this motion before me alone, she has filed three lengthy affidavits, a factum and a Book of Authorities. She has filed a separate affidavit to respond to the father's cross-motion for summary judgment.

[24] The mother's main affidavit on the disclosure motion is two volumes, and it contains 86 tabs of exhibits. Her Book of Authorities is two volumes also, and it has 48 tabs. There are a number of documents in her Books of Authorities that are neither statutory references, nor case law, and which are not properly before the Court. These motion materials number in the hundreds, but more likely in excess of one thousand pages, if not more.

[25] It is not only in this Court in which the mother is pursuing this litigation. While, as of the September 21, 2020 date that I heard argument of these two motions, the mother's appeal of Sirivar J.'s Order had been disposed of, the mother still had a different appeal, and a motion for leave to appeal pending in the Divisional Court. Those proceedings relate to one small costs order, and to one order for no costs, made by two different judges of the Superior Court in connection with the mother's appeal of Sirivar J.'s Order. Although she was the successful appellant in her appeal of Sirivar J.'s Order, no costs orders of that appeal were made against the father. But costs orders were made against the mother. And she refused to pay them, despite their small quantum, choosing instead to take further proceedings to attack those small costs orders.

[26] It is also evident from the material, that the mother strongly dislikes the father's counsel. Her material before this Court contains mean-spirited comments about Mr. Teitel. She believes he has engaged in professional misconduct. She has either threatened to, or perhaps she has actually launched a Law Society complaint against him. She has also made comments about him personally. She has even accused him of criminal behaviour.

[27] The father says that the mother's litigation conduct has caused him to incur thousands of dollars in legal fees. It is easy to see how the father's statement to that effect, is true. I would say this based on the incredible volume of material before this Court for these motions alone, let alone the undisputed evidence detailing the numerous litigation steps that have been pursued, and to which the father had to respond. I am told by the father that the mother has filed hundreds of pages in the various, related Superior Court proceedings, too.

[28] Although each party's respective motions exceed the scope of what the Court was initially told the motions were to be about (albeit to different extents, with the mother's expansion of issues being more egregious), each side has filed more than ample material, each side was given a fair opportunity to respond, and each side was given more than enough court time to present her and his respective cases. Nothing productive would come from this Court declining to deal with some of the various requests on technical or discretionary grounds. For example, I would not dismiss any particular request for relief, for a reason like the father's summary judgment motion was brought improperly, as the mother argued. Given the history of this case, that would be contrary to the objective of the Family Law Rules. I intend to deal with all the issues raised by both sides in their Notices of Motion. In the mother's case, that will include the various other requests that are sprinkled throughout her affidavits and her factum, too.

[29] For the reasons that follow, the mother's motion (and her other requests in other documents that have been placed before me) are dismissed in their entirety. The father's cross-motion for summary judgment motion is granted. To be clear, I am not dismissing the Motion to Change as claimed in paragraphs 1 to 3 of the father's Notice of Cross-Motion dated April 23, 2020, but I am granting a final order on the mother's Motion to Change, and on the father's Response to Motion to Change. And except as specifically set out below, there will also be an order the mother must seek leave from this Court, prior to commencing any further proceedings in this Court.

PART II: BACKGROUND

A. History of the Parties' Relationship

[30] According to the father, the parties met a few times in 2008. They never lived together. The mother became pregnant and gave birth to A.B. in 2009. A.B. has always resided with the mother. He does not enjoy a relationship with his father.

[31] The father is now married to someone else. According to the father, he met his current spouse long after he stopped seeing A.B.'s mother, and before he even knew about A.B.'s existence. The father and his spouse have a child of their own, who is now 9 years-old. The father also has two adult children from a previous relationship. The mother's disclosure requests have even included requests for documentation about these adult children, ostensibly on lifestyle grounds.

[32] There have never been parenting issues between the parties concerning A.B. While the first Final Consent Order from this Court does provide that the mother will have custody of A.B., the litigation over the past decade has really revolved around child support.

B. The Parties' Incomes

[33] Before the father obtained his current job working for the coffee company, he used to also work at a fish market (also as an employee). As of 2017, he only works for the coffee company. He has filed with the Court a summary from the Canada Revenue Agency of the T4s he received from 2015 to 2019 to prove this.

[34] With the exception of a portion of the personal injury settlement that he received in 2017, all of his income is fully captured on Line 150 of his income tax returns. The father's Line 150 income was $20,047.46 in 2014, $31,800.48 in 2015, $46,985.05 in 2016, $43,187.00 in 2017, $44,899.27 in 2018 and $43,488.55 in 2019. After getting into a motor vehicle accident in August of 2013, his income declined. This, he explains, is why he had reduced income in 2014 and 2015.

[35] Following the car accident, the father launched a personal injury law suit. He did not settle the law suit until 2017. Unfortunately, he settled it on the afternoon of June 1, 2017, a few hours after he settled the last round of these child support proceedings before Murray J. I am told that he did not disclose the personal injury settlement on the morning of June 1, 2017 when he appeared in this Court. His counsel's explanation in submissions was that the father did not know that he would be settling the personal injury law suit, later that day. While this is a credibility issue which I find I can resolve within the parameters of a summary judgment motion, I have used the word unfortunate here, because it has certainly contributed to the mother's heightened suspicion that the father is concealing income.

[36] The father has one bank account. As I have already averred to, it is a joint account that he owns with his spouse.

[37] The father's spouse is also a T4 employee. Although her income is irrelevant to the determination of the father's income for child support, it is relevant insofar as the father's response to the mother's arguments about the deposits going into the joint account is concerned. But the father has produced much information about his spouse's income, too. For example, he has filed with the Court her notices of assessment for 2018 and 2019. The father's spouse's Line 150 incomes in those years were $59,857.00 and $64,108.00. Orally during the motion, I was told that the father's spouse also does occasional digital design work on a self-employed basis, but mostly as a hobby, and she earns negligible income from that.

[38] Despite at least one Judgment of the Superior Court that says otherwise, in this proceeding I am told that the mother does not work and she is in receipt of ODSP. According to her financial statement sworn April 24, 2018, the mother also receives various tax benefits and credits. So do the other financial statements that she deposed, but which the father filed.

[39] Based on the documentary evidence that is before the Court on these motions, the mother receives ODSP and other government benefits in the aggregate of between $33,000 and $34,000 per year. According to her 2015, 2016 and 2017 notices of assessment, the mother's Line 150 incomes were $19,704.00, $17,952.00, and $21,590.00. While it is possible that the mother's 2018 tax information has been filed within the voluminous motion materials that are before the Court, I have been unable to locate such information for 2018. The mother has not produced her 2019 tax return or notice of assessment. She says she has not filed her 2019 taxes yet, due to Covid-19. Her T5007 Statement of Benefits for 2019 says that she received $23,007.00 in 2019.

C. Prior Proceedings

[40] There were numerous prior events in the various proceedings before this Court, the Superior Court and the Divisional Court, leading up to the motions I heard on September 21, 2020. In light of the nature of the relief claimed on these motions, I do intend to summarize the prior proceedings in some detail.

(1) The Initial Final Consent Order of Murray J. dated May 12, 2011

[41] The first Final Order of this Court is that of Justice Murray dated May 12, 2011. It provides that the mother shall have sole custody of A.B., that the father shall not have access to him, and that he shall pay child support in the amount of $382 per month, commencing June 1, 2011, based on annual income of $41,590.00. The father was also, at that point, ordered to pay a one-time amount of $1,750.00, on account of special or extraordinary expenses pursuant to section 7 of the Child Support Guidelines.

[42] Insofar as the parties' disclosure obligations are concerned, this first Order stipulates that the parties are to exchange their three most recent years of income tax returns and notices of assessment, not previously provided, by June 1 each year. The Order also sets out the father's place of employment at the time, and it states that all outstanding claims raised by either party back then, were resolved.

(2) The Consent Disclosure Order in the First Motion to Change Proceedings (ie. in the Second Round of Litigation)

[43] It was on June 9, 2015, in the second round of the litigation, that the parties entered into a temporary Consent Order for a number of things, including for financial disclosure. That temporary consent Order of June 9, 2015 required the father to provide an updated sworn financial statement, pay stubs or related documentation, tax returns, proof of benefits, a current resume and "bank statements for all accounts over which the father had signing authority covering August 2013 to present". Both sides were represented at the time.

[44] The father went beyond the requirements of that consent Order. For example, he produced his bank statements beginning on January 1, 2013. It appears that the father also voluntarily updated his bank statements beyond the "present", as required by that Consent Order. I say this because in the current Motion to Change Continuing Record, the mother has attached to her Change Information Form sworn April 24, 2018, the father's bank statements from January 1, 2013 all the way through to the end of January 2017.

[45] Regardless, the father now says that this Court has never determined that his bank statements were necessary or relevant to the determination of child support, at least on a contested basis. I agree with this statement. And none of the Final Orders that I am summarizing in this decision mention any obligation on the father to provide ongoing disclosure of bank statements, or even much else than that which is required by the Guidelines.

(3) The Second Final Consent Order of Murray J. dated October 6, 2015

[46] With the mother already having the father's joint bank statements up to that point, the initial Final Order was varied on consent by Murray J. on October 6, 2015. Both parties were still represented by counsel at the time.

[47] This new Order provides that commencing November 1, 2015, the father shall pay child support of $308.00 per month, based on annual income of $35,360.00. In addition, the father was ordered to pay $8.00 per month, representing his share of the child's annual child care expense of $100.00 at the time. And, it was determined that the father owed a small amount of arrears of $427.34, as of September 30, 2015. Those arrears were owed entirely to the Ministry of Community and Social Services, and to Toronto Social Services.

[48] Regarding disclosure, this new Order required the parties to exchange, no later than 30 days after the Order's anniversary date, his and her tax returns with attachments, notices of assessment or reassessment, and current information in writing about the status and amount of special and extraordinary expenses.

(4) The Third Final Consent Order of Murray J. dated June 1, 2017

[49] The third Final Consent Order is that of Murray J. dated June 1, 2017. It is considerably lengthier than the previous two Final Orders.

[50] I repeat here again that this Final Consent Order provides that the father shall now pay child support for A.B. of $360.00 per month commencing April 1, 2017, based on the "imputed" income of $40,000 per year. It provides that the father was to pay section 7 expenses in different amounts, depending on what life insurance coverage he had in place over the following year, but then as of July 1, 2018, that amount becomes $300.00 per month.

[51] In addition to the statutory right to vary it provided for in section 37 of the Family Law Act, this Final Consent Order contemplates that there will be a review of child support and section 7 expenses in January of the year in which the child is anticipated to commence a program of post-secondary education. Given the child's current age, that particular review is still several years away.

[52] The father agreed to maintain a life insurance policy of $100,000.00, naming the mother as the irrevocable beneficiary, to secure child support. The insurance was to be put in place no later than June 30, 2018. The Order contains various terms respecting the life insurance policy and how its proceeds will be applied in the event of death, and the like.

[53] The father also agreed to maintain A.B. as the beneficiary of his medical, extended health and dental coverage through his employment. The Order likewise contains various terms respecting how the health coverage will be used to defray expenses, how claims are submitted, and so forth. Any uninsured health expenses are to be shared by the parties as section 7 expenses. This term states that such uninsured expenses are to be shared proportionally to incomes, but neither the mother's income at the time, nor the percentages, are set out in the Order.

[54] In terms of disclosure, the parties agreed to provide "updated income disclosure", including tax returns and notices of assessment for the previous tax year, by June 1 of each year, plus recent proof of income by way of pay stubs or business statements. They also agreed that the father would provide an "unredacted electronic copy of the executed settlement or issued order" within 5 business days of obtaining a final settlement or order regarding his personal injury lawsuit.

(5) The Current Motion to Change

[55] The mother commenced this round of litigation on April 24, 2018. She now asks for child support and section 7 expenses in the aggregate amount of $4,000 per month. In one place in her Motion to Change, she seeks an adjustment to child support commencing January 1, 2017 only. That would pre-date the most recent Final Consent Order of June 1, 2017, by several months. However, elsewhere in her Motion to Change, the mother asks that arrears owing to the "Ministry of Community and Social Services" be determined by way of a trial, that those arrears be determined back to January 1, 2013. That would pre-date both the June 1, 2017 and the October 6, 2015 Final Consent Orders, by several years. The mother asks that the father pay off any such arrears, once determined, to the Ministry in some manner.

[56] According to various pages attached to the mother's Motion to Change, the mother asks the Court to impute additional income to the father based on his alleged lifestyle, spending patterns, past borrowing of funds, failure to provide full financial disclosure, and hidden income. The mother also seeks to rely on "the actual means and needs of the parties and the children", "the pre-separation spending patterns", the pre- and post-separation standards of living in both parents' homes, evidence regarding the "conditions, means, needs and other circumstances of each parent and of the children", "the resources and needs of both parents, and the children", and that "the parent's new partner's income may be taken into account as part of an overall analysis of that parent's house income, whether that parent is the payor or the recipient of child support".

[57] Although he only received the personal injury settlement proceeds in 2017, the pages attached to the mother's Motion to Change now say that the father's motor vehicle settlement of "$89,000" is to be added as "recovery of lost wages" for the years 2013, 2014 and 2015. And despite that in one place in the Motion to Change itself she seeks support back to January 1, 2017, the mother further says in the pages attached to the Motion to Change that she wants a trial, to impute an income to the father for the years 2013 to 2018, and to determine ongoing child support.

[58] In those same pages, the mother seeks various disclosure, including statements from 12 alleged credit cards (which she says have been paid off), mortgage statements, details about the proceeds of sale of the father's previous residence, other interest or investment income, bank statements from 2017 to present, and disclosure relating to the motor vehicle accident settlement, among other things.

[59] It is in his Response to Motion to Change sworn June 11, 2018, that the father first said that support has always been based on his previous year's income, and that the $40,000 was "imputed" to him in Justice Murray's Order of June 1, 2017, because his 2016 taxes were not yet available at the time of the parties entered into this Order. The father questions whether the section 7 expenses provided for in Murray J.'s Order are still being incurred, and therefore that he should no longer have to pay for them.

[60] In his affidavit sworn April 23, 2020, filed in support of his summary judgment motion, the father says that the mother is falsely alleging he is a millionaire and lives a life of luxury. He says that he has never been self-employed. He is disputing the mother's request for additional disclosure. During submissions about the disclosure requests, the father's counsel went further and said it would be "dangerous" for the Court to make a further production Order based on what the mother intends to do with them. Counsel submits that this would only serve to fuel and prolong this litigation, and to increase costs.

(6) The Mother's Request for Information and the Father's Response to It

[61] After the mother commenced this round of the proceedings, she served a Request for Information. She did so on June 22, 2018. It is 23 paragraphs long, and contains similar requests as those attached to her Motion to Change, and to those now included in her Notice of Motion for disclosure. The father responded to the Request for Information on September 20, 2018. Since then, he has provided more disclosure.

(7) The Case Conference before Murray J. on October 1, 2018

[62] Next, the parties appeared before Murray J. for a case conference on October 1, 2018. According to the father, the mother's Request for Information, and the father's response to it, were before the Court, and disclosure was addressed at that conference.

[63] The father says that despite all of the various requests, Murray J. only ordered that the mother was to provide her complete tax returns for the last three years, and the father was to provide further information about his counsel's calculations of lost wages from the motor vehicle accident settlement, plus his last three pay stubs.

[64] Murray J.'s Endorsement of October 1, 2018 also reads, "if [this] matter cannot be settled, I recommend that [a] R.15 hearing be done on documentary evidence with 30-60 [minutes] permitted for cross-examinations of each party". Murray J. then adjourned the matter to a settlement conference. In an obvious attempt to keep costs under control, she specifically limited settlement conference briefs to 5 pages, without tabs, and she directed that there were to be no motions prior to the settlement conference.

(8) The Mother's First 14B Motion dated October 3, 2018 Requesting Access to the Court's Recordings

[65] Three days later, the mother filed a 14B Motion dated October 3, 2018, asking for a copy of the audio recording of the October 1, 2018 conference, to prepare for the October 18, 2018 settlement conference. She also asked for a copy of the recordings from the appearances on June 1, 2017 and May 12, 2011 (the dates on which the first and third round of these proceedings settled). She asked for those recordings for her "personal record keeping".

[66] On October 4, 2018, Murray J. granted her request.

(9) The Settlement Conference Held on October 18, 2018

[67] The parties appeared before Sirivar J. on October 18, 2018. Sirivar J. set the matter down for a further appearance on December 19, 2018, to organize a focused hearing. I am told that the mother once again made a disclosure request, this time to Sirivar J. on October 18, 2018.

[68] Sirivar J. directed the mother to file a 14B Motion, accompanied by an affidavit, limited to 6 pages without attachments, to address any disclosure issues alleged to have been outstanding from the mother's Request for Information. The mother did not follow Sirivar J.'s direction.

(10) The 14B Motions for Disclosure Which Led to the Mother's Appeal

[69] Instead, the mother served three 14B Motions and two affidavits along with other unsworn documents, to address the outstanding disclosure requests. The mother was even represented at the time that she did this.

[70] On December 6, 2018, Sirivar J. determined that Murray J. had previously dealt with the mother's disclosure requests. In addition, she endorsed the following:

The applicant was to submit the request for disclosure discussed at the conference by 14B to simplify matters to that I could review the file again to ascertain whether Justice Murray addressed the request as asserted by the Respondent.

The applicant has faxed 1 inch of materials to the Court, many pages of which are duplicates. Her new counsel has improperly asked court staff to "forward" a variety of documents to me. He now will ask to file more materials. The applicant was to file by November 23, 2018.

(11) The Court Dates of December 18, 2018 and March 18, 2019 to Organize the Focused Hearing Did Not Proceed on Their Merits

[71] The next Court date that was supposed to occur, was on December 19, 2018. It was supposed to be for the purpose of organizing a focused hearing. However, prior to that date, Sirivar J. granted a different 14B Motion to adjourn the appearance, as the mother's counsel was ill. As such, the matter was adjourned to March 18, 2019.

[72] Before the new return date of March 18, 2019, the mother served a Notice of Change in Representation and started acting on her own. In the mean time, the mother launched an appeal of Sirivar J.'s Order of December 6, 2018 dismissing the mother's disclosure motion. As explained earlier, this was the first of what would be two appeals and one motion for leave to appeal, in the Superior Court and in the Divisional Court.

[73] As a result, the Trial Management Conference did not proceed on March 18, 2019, pending the mother's appeal of Sirivar J.'s disclosure order. The parties were able to arrive at a temporary without prejudice consent that day however, to adjust the father's child support. According to the temporary without prejudice Consent Order dated March 18, 2019, the father would now pay $396.32 per month, based on his 2017 income of $43,187.00, commencing January 1, 2019. And Sirivar J. ordered the mother to pay costs of the 14B Motion for disclosure, in the amount of $500. She allowed the mother to pay it off at the rate of $100 per month.

(12) The Mother's Two Additional 14B Motions Requesting Access to the Court's Recordings

[74] After this, the mother filed two more 14B Motions, now asking for the Court's audio recordings of the appearances on June 9, 2015, August 13, 2015, October 18, 2018 and March 18, 2019. One of those appearances (June 9, 2015) was the date on which the father consented to produce bank statements in the prior proceedings. In her 14B Motions, the mother said she required those recordings to prepare for trial, case conferences, focused hearings and appeals, and for her own personal record keeping.

[75] The mother's first 14B Motion was not granted because of an issue with its service. But on June 13, 2019, Scully J. granted the second 14B Motion.

(13) The Court Attendance on October 22, 2019

[76] On October 22, 2019, the parties attended before Masse J. The mother's appeal of Sirivar J.'s Order of December 6, 2018 was still pending at that point. On this date, the parties consented to a further temporary order for chid support, now in the amount of $416.97 based on the father's income of $44,899 for 2018. Masse J. then scheduled a Trial Management Conference for January 15, 2020.

(14) The Superior Court's First Cost Order Against the Mother dated November 12, 2019

[77] By the fall of 2019, the mother's appeal of Sirivar J.'s Order of December 6, 2018 had still not been heard. By Endorsement of Moore J. of the Superior Court dated September 11, 2019, the Court ordered the mother to serve hard copies of her appeal material. According to the father, the mother had served hundreds of pages of material in connection with that appeal, but she did not comply with Moore J.'s direction. So the father says that he brought a 14B Motion in the Superior Court in October, 2019, to compel her to do so.

[78] On November 12, 2019, Akbarali J. ordered the mother to comply with Moore J.'s direction, by November 19, 2019. She also ordered the mother pay $500 in costs of the father's 14B Motion, within 30 days. In response to Akbarali J.'s costs Order, the mother launched another appeal, this time to the Divisional Court.

(15) The Appeal of Sirivar J.'s Order Was Allowed on December 6, 2018

[79] On December 5, 2019, Diamond J. heard the mother's appeal of Sirivar J.'s Order of December 6, 2018. Diamond J. allowed the appeal. He found that Sirivar J.'s dismissal of the disclosure motion was rooted in a finding of res judicata and that was legally untenable, given the record before the Court.

[80] Diamond J. held that the mother was entitled to have her disclosure request determined by motion on its merits. He set aside Sirivar J.'s Order of December 6, 2018, as well as her costs order of $500 dated March 18, 2019. He did not decide the question of whether the mother should get the all, some or none of the disclosure on the merits of her motion.

[81] In his Endorsement, Diamond J. suggested, "without directing the conduct of the proceedings" in this Court, that the mother's disclosure motion might be addressed on January 15, 2020, which at that point was the next scheduled Court date in this Court. This was not a binding direction on this Court. Nor was it a determination that the father could not bring a cross-motion, as the mother now argues.

[82] The mother had sought costs of her appeal in the amount of $1,000. But Diamond J.'s Endorsement specifies that there had been certain prior orders made in the appeal, arising out of 14B Motions and missed attendances. Diamond J. held that those prior costs were the mother's responsibility. In the result, he offset those, and ruled that there would be no costs of the appeal to either party.

(16) The Mother's Motion to Set Aside Diamond J.'s Order Respecting Costs of the Appeal

[83] Next, the mother brought another 14B Motion, which went back before Diamond J., asking him to set aside his ruling that there would be no costs of the appeal. On January 14, 2020, Diamond J. released an Endorsement finding that the mother's motion was a "dressed up appeal and collateral attack" on his costs disposition. He dismissed the mother's 14B Motion and ordered costs payable to the respondent "in the cause of the proceeding".

(17) The Appearance Before This Court on January 15, 2020

[84] This matter returned to this Court on January 15, 2020. That was the first appearance before me. I have presided over all subsequent appearances since then.

[85] The disclosure motion could not proceed on January 15, 2020. Five days before that, the mother filed a fresh, voluminous affidavit. She wanted the Court to refer to various other documents in a box of material, previously filed. She had not filed a new Notice of Motion setting out the exact disclosure she sought, either.

[86] I was not prepared to proceed in this fashion. I told the parties that I would schedule a disclosure motion for July 21, 2020. Out of an abundance of caution, I allocated two hours for it to be argued.

[87] The Court was prepared to hear the motion much earlier than the July 21, 2020 return date that the Court fixed. In fact, counsel for the father objected to the motion being scheduled so far into the future. But the mother asked for a scheduling order over a long period of time, to enable her to prepare her material.

[88] I directed the mother to focus her motion and file her material properly, rather than expecting the Court to refer to material filed at previous points in time. I made a scheduling order for the exchange of materials. I directed the mother to file a proper Notice of Motion. I ordered that all material on which the parties intended to rely would be filed in one place, so that the record before the Court on her motion would be clear.

[89] Despite that direction, neither side fully followed the direction. As I have already explained, the mother then made requests for Orders, not only in her Notice of Motion but elsewhere in her material. When the motion was heard, the Court had to turn to the current Continuing Record to review the parties' pleadings, which frame the relevance of the mother's disclosure requests. And in one of his affidavits, the father referred me to the prior disclosure order of June 9, 2015 in a footnote, without attaching the disclosure order itself.

(18) The Mother's Motion in the Divisional Court on February 28, 2020

[90] On February 28, 2020, the mother brought a motion in the Divisional Court regarding her appeal of Diamond J.'s ruling on costs of the appeal of Sirivar J.'s Order of December 6, 2018. According to the father, the mother short served the motion, and again served hundreds of pages of materials.

[91] Based on what has been put before me, it appears that the mother was seeking an extension of time to file her appeal of Diamond J.'s ruling on costs. But Lederer J. endorsed that the mother required leave to appeal. He also endorsed that he had reviewed with the mother the proper approach to appealing costs, with leave being required. Despite that, Lederer J.'s Endorsement states that the mother still wished to proceed.

[92] Lederer J. set out a time table for that to occur. And he ordered the mother to pay additional costs to the father of $200.00. As far as I am aware, this is the only costs order that the mother has not appealed, or taken steps to appeal.

[93] In her material now before me, the mother alleges that she paid these costs. Having reviewed the competing affidavit material on this point, and based on her other conduct of ignoring aspects of orders of this Court and the Superior Court, I accept the father's account to the contrary. I find that as of the date that these motions were argued before me, the mother had not paid Lederer J.'s costs order of $200.

(19) The Father's Decision to Bring a Summary Judgment Motion, and the Mother's Request to Adjourn Her Disclosure Motion

[94] According to the father, by March 2020 he decided that "enough was enough". In his affidavit sworn April 23, 2020, he says that he had thought long and hard about his options, and it had become apparent to him that a motion for summary judgment was necessary "to put a stop to" the mother. He says that he had incurred thousands of dollars in legal expenses to respond to four proceedings in three courts. So on March 20, 2020, he served a Notice of Motion for summary judgment upon the mother.

[95] At that point, this Court had not granted leave for him to bring a summary judgment motion. I was still under the impression that this Court would be dealing with the mother's disclosure motion, only. Then on May 26, 2020, the mother filed a 14B Motion seeking an adjournment of her disclosure motion from July 21, 2020 to a date in September 2020. Although my scheduling order of January 15, 2020 extended over months at her request, she asked for a further extension. Some of her reasons were based on Covid-19. In the same 14B motion, the mother sought an order dismissing the father's summary judgment motion, without argument.

[96] On June 1, 2020, I scheduled a teleconference for June 10, 2020. I endorsed the following:

There was an appeal of a disclosure order in this matter. The SCJ directed that the disclosure motion proceed. When the matter returned before me (a different judge) the mother requested a new timetable for the motion over months, over the objection of Mr. Teitel. As it is the mother's disclosure motion and to some extent her prejudice, I granted the extension. The mother now seeks a further adjournment for a further 3 to 4 months. She says it is opposed. I appreciate Covid-19 intervened, but this matter may be capable of proceeding with the use of technology. Mother's unsworn affidavit in support of the 14B also specifies that Mr. Teitel served a different motion.

This matter is 2 boxes and requires Court oversight and specific case management. I will not grant a further adjournment of several months without ensuring that there is proper organization in place.

Telephone conference to proceed on June 10, 2020 at 3 pm. I will hear submissions on the adjournment and set next steps/directions if they are required.

[97] I presided over the teleconference on June 10, 2020. The mother's arguments that the father should not be allowed to bring a summary judgment motion revolved around the fact I had not granted leave for a summary judgment motion when I scheduled her disclosure motion on January 15, 2020, and that Diamond J. did not say in his appeal decision that a summary judgment motion could be brought by the father. I do not accede to either of these arguments. The father had not asked for leave to bring a summary judgment motion previously, as he did not decide to proceed by way of summary judgment until March 2020. And whether the father would proceed by way of summary judgment or not, was not before Diamond J. on the appeal. The appeal focused only on the more narrow issue of the correctness of Sirivar J.'s Order of December 6, 2018.

[98] I appreciate that in her Endorsement of October 1, 2018, Murray J. made a limited disclosure order, directed a settlement conference and "recommended" that in the absence of a settlement, that this case be dealt with by way of a focused hearing, with some limited cross-examination. While her recommendation to the parties at the time was eminently sensible, that is not how this case unfolded. The mother instead brought a further disclosure motion and an appeal. This case went in a different direction and the father, in response, was entitled to change his approach, too.

[99] This Court has wide latitude to set the process, based on Rules 1 and 2 of the Family Law Rules, and its inherent jurisdiction control its process. To the extent that Murray J.'s Endorsement of October 1, 2018 is a binding procedural ruling about the conduct of the final hearing (which I find it is not), the Court has jurisdiction to revisit prior procedural rulings, as things change. The trial judge, or judge hearing the final hearing, has the authority to set the process for that hearing. See also, for example rule 1(7.4) of the Family Law Rules. And contrary to the mother's argument, the management of this case does not fall within the purview of the Superior Court, just because an appeal is taken on a certain, other issue (ie. disclosure).

[100] For both oral and written reasons delivered on June 10, 2020, I directed that both parties' motions would proceed before me on September 21, 2020. I indicated that the date was peremptory to both sides. I one again gave specific directions to both parties for the exchange and filing of all motion materials. The new date was chosen to accommodate the mother's request for additional time to respond to the cross-motion, and to address her Covid-19 concerns.

PART III: ISSUES AND ANALYSIS

A. Overview of the Analysis Concerning the Matters in Issue and the Type of Hearing in this Case

[101] I begin the analysis by remarking that Motions to Change need not always be dealt with by way of a trial. In fact, a trial is not even the default procedure. Rather, rule 15 contemplates that they shall be heard on affidavit and documentary evidence.

[102] A trial is the exception. Rule 15(26) states that where the Court is of the opinion that a motion cannot be properly dealt with because of the material filed, because of the matters in dispute or for any other reason, the court may give directions including directions for a trial.

[103] In some Motions to Change, there will be conflicting affidavits and credibility issues will be such that a trial will be required. See for example Ierullo v. Ierullo (2006), 32 RFL (6th) 246 (Ont. C.A.). I note that Ierullo v. Ierullo involved a Motion to Change spousal support, and so the Court was required to weigh and consider the various factors for a spousal support analysis. That is not what is before me in this case.

[104] By was of a contrasting example, in Glazer v. Glazer, 2019 ONSC 809, MacEachern J. determined that a trial was not required for her to determine a Motion to Change child support and section 7 expenses, even when that included a retroactive claim. At ¶ 16, she held:

I do not find that a trial is necessary to deal with this motion to change. I find that I am able to reach a fair and just determination on the merits on this motion - the process allows me to make the necessary findings of fact, allows me to apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than extending this process to include a trial.

[105] And even where there is to be a trial of a Motion to Change, or some form of a hearing that includes both documentary and viva voce evidence, this Court has the authority to direct how it will proceed, and to place limits on its scope. See for example rule 1(7.2) of the Family Law Rules. That includes limiting the number of witnesses, directing that evidence by way of affidavits be filed, and placing limits on cross-examinations.

[106] Neither side specifically pursued rule 15(23) in argument before me. Rather, the mother just proceeded as if the Court would be determining her disclosure motion and ordering a trial, and the father has brought a cross-motion for summary judgment. To consider his request I must decide the issues he raised through Rule 16. That said, in determining whether a trial is required under Rule 16, the Court is also effectively considering whether this Motion to Change can be properly dealt with on a paper record, or whether some other form of hearing is required, within the meaning of rule 15(23).

B. Applicable Legal Principles Concerning Summary Judgment

[107] Rule 16 of the Family Law Rules governs summary judgment. Pursuant to rules 16(1) and 16(4), to obtain summary judgment, the father must set out specific facts showing that there is no genuine issue requiring a trial. Pursuant to rule 16(4.1), the mother may not rest on mere allegations or denials. She must set out in her evidence specific facts showing that there is a genuine issue for trial. In short, each party must put his and her best foot forward regarding the existence or non-existence of material facts that have to be tried. See Karlovic v. Karlovic, 2018 ONSC 4233 ¶ 39.

[108] Even if the mother's responding evidence does not establish a genuine issue for trial, the Court must still be satisfied on the evidence before it that the father, as the moving party, has established that there is no genuine issue requiring a trial. See Kawartha Haliburton Children's Aid Society v. M.W., 2019 ONCA 316 ¶ 80.

[109] Pursuant to rule 16(6), if the Court finds that there is no genuine issue requiring a trial of a claim or defence, then the Court shall make a final order accordingly. There are additional fact-finding powers set out in rules 16(6.1) and 16(6.2) to which the Court may have resort under appropriate circumstances, to determine whether there is a genuine issue requiring a trial.

[110] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada said the following about summary judgment:

(a) undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes. See ¶ 24; and

(b) the Ontario amendments to the summary judgment rule changed the test for summary judgment from asking whether the case presents a "genuine issue for trial" to asking whether there is a genuine issue requiring a trial. The new rule, with its enhanced fact-finding powers, demonstrates that a trial is not the default procedure. See ¶ 43.

[111] In Hryniak v. Mauldin, the Supreme Court set out a two-step process for determining whether summary judgment should be granted. First, the judge must determine if there is a genuine issue requiring a trial based on the evidence, without using the additional fact-finding powers set out in Rule 16(6.1). If, after this initial determination, there still appears to be a genuine issue for trial, the judge may resort to the additional fact-finding powers to decide if a trial is required.

[112] There will be no genuine issue requiring a trial when the Court is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process allows the Court to make the necessary findings of fact, allows the Court to apply the law to the facts, and is a proportionate, more expeditious and less expensive means to achieve a just result. See ¶ 49. As the Supreme Court said, "the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the Court confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute." However, a process that does not give the judge confidence in conclusions to be drawn can never be a proportionate way to resolve the dispute. See ¶ 50.

[113] If there appears to be a genuine issue requiring a trial, based on the record before the Court, the Court should then determine if the need for a trial can be avoided by using the powers set out in rule 16 (6.1). These powers involve the weighing of evidence, evaluating credibility, and drawing inferences.

[114] The use of these powers is discretionary, provided that they do not run contrary to the interests of justice. Their use will not be against the interests of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole. See ¶ 66.

[115] If there are concerns about credibility or clarification of the evidence, then those issues can also be addressed by calling oral evidence on the motion itself. See ¶ 51. This is the mini-trial procedure set out in rule 16 (6.2). This power should be employed when it allows the Court to reach a fair and just adjudication on the merits and it is the proportionate course of action. While this is more likely to be the case when the oral evidence required is limited, there will be cases where extensive oral evidence can be heard on the motion for summary judgment, avoiding the need for a longer, more complex trial and without compromising the fairness of the procedure. See ¶ 63.

[116] Based on what I have already described, and for the reasons that follow, I find that it is in the interest of justice for the Court to determine this case summarily. This process allows the Court to make the necessary findings of fact and to apply the law to the facts. It is a proportionate, more expeditious and less expensive means to achieve a just result. The summary judgment process allows the Court to fairly and justly adjudicate the dispute.

[117] I find that I am able to do so based on the evidence before me. I find that the evidentiary record is sufficiently comprehensive on all aspects of the case for me to make a fair and just determination of the issues on the merits without the need for a trial. Cross-examination of witnesses would add little, if any value to the court's analysis.

[118] In some instances, I will have resort to the Court's expanded powers under rule 16(6.1). To the extent that the father's credibility is in issue regarding his failure to produce his 2016 tax return at the time of the June 1, 2017 Final Consent Order, and regarding his failure to produce or advise of the personal injury settlement on the morning of June 1, 2017, I find that I may resolve these credibility issues too, under rule 16(6.1). I find that the Court does not require any oral evidence under rule 16(6.2).

[119] In granting summary judgment in this case, I am also considering and applying rules 2(2) to 2(5) of the Family Law Rules to ensure that a case is dealt with justly. These rules require a procedure that is fair to all parties, one which saves time and expense, and provides that the case is to be dealt with in ways that are appropriate to its importance and complexity. The notion of proportionality is a heavy consideration in the Court's use of summary judgment in this case.

C. Applicable Legal Principles Concerning the Variation of a Child Support Order

[120] To properly decide the issues raised in the parties' competing motions, it is necessary to place them within the proper legal framework that applies to the overall Motion to Change.

[121] Sections 37(2.1)(a) and (c) of the Family Law Act provide that, if the Court is satisfied that there has been a change in circumstances within the meaning of the Guidelines, or if evidence that was not available on a previous hearing has become available, the Court may "discharge, vary or suspend a term of the order, prospectively or retroactively" and "make any other order for the support of a child that the court could make on an application under section 33". And, the Court is to make an order in accordance with the Guidelines, unless certain exceptions apply (none of which are engaged in this case). See section 37(2.2).

[122] Sections 37(2.1) and (2.2) of the Family Law Act direct the Court to the Guidelines to determine what constitutes a "change of circumstances". As the amount of child support in the Final Order of Murray J. dated June 1, 2017 includes a determination based on the table, section 14(1.) of the Guidelines applies. Section 14(1.) provides that any change in circumstances what would result in a different order for the support of a child or any provision thereof will suffice.

[123] It is important to note yet again here, that the Final Order of Murray J. dated June 1, 2017 is a consent order. L.M.P. v. L.S., 2011 SCC 64 concerned a variation of the spousal support terms contained in an agreement that had been incorporated into a court order. The variation application proceeded under section 17 of the Divorce Act as opposed to under Ontario's provincial legislation. Although the case dealt with spousal support, the majority opinion of the Supreme Court held that the proper approach to the variation of existing orders is found in Willick v. Willick. Willick is a case that concerned child support.

[124] At ¶ 29-36 L.M.P. v. L.S., the Court set out the following principles respecting the variation of a consent order, which apply to variations under the Family Law Act too:

(a) The Court must be satisfied that there has been a change of circumstance since the making of the prior order;

(b) The "change of circumstances" must be "material" meaning that "if known at the time, would likely have resulted in different terms";

(c) The focus is on the prior order and the circumstances in which it was made;

(d) The Court should not depart from it lightly. The test is whether any given change "would likely have resulted in different terms";

(e) What will amount to a material change will depend on the actual circumstances of the parties at the time of the order; and

(f) The subsequent conduct of the parties may provide an indication as to whether they considered a particular change to be material.

[125] Parties may contemplate that a specific type of change will or will not give rise to a variation. At ¶ 39, the Court held that the degree of specificity in the terms that provide for a particular change will be evidence of whether the parties, or the Court, contemplated the situation raised on a later application for variation. Alternatively, at ¶ 40 of L.M.P. v. L.S., the Court states that a general provision, for example a clause that it is subject to variation upon a material change, will not give the Court any additional information as to whether a particular change would have resulted in different terms, if known at the time of that order. As such, the Court must examine the terms of the governing document and the circumstances of the parties at the time it was entered into, to determine what amounts to a material change.

D. Whether Additional Disclosure or a Trial is Required For The Court to Determine Whether the Necessary Change Threshold Has Been Met

[126] Having regard to these principles, there are certain aspects of Murray J.'s Final Consent Order of June 1, 2017 that are particularly important to assessing change. But the determination of whether the change threshold has been met in this case requires neither additional disclosure, nor a trial. I am satisfied that there has been a change in circumstances within the meaning of section 37(2.2), section 14 of the Guidelines and the Supreme Court's test in L.M.P. v. L.S. for the following reasons.

[127] First, it is not even seriously disputed that the change threshold is met in this case. Although the mother would have the Court impute a greater income to the father, even the father concedes that his Line 150 income in the years since the June 1, 2017 Final Consent Order has been higher than the $40,000 amount set out in the Order, which would warrant a different child support order. And in fact, he has already sent the mother 'top-up' payments. His own conduct evidences his view that he believed sufficient changes occurred.

[128] Related to the first reason, while it is true that the child support in the June 1, 2017 Final Consent Order includes a determination based on the table, the amount of child support flowed from the parties' characterization of the father's income of $40,000 as being "imputed". It is thus necessary to examine the use of the word "imputing" in more detail.

[129] At ¶ 42-60 of Trang v. Trang, 2013 ONSC 1980, Pazaratz J. held that whether there has been a sufficient change in circumstances to change child support is not always as simple as comparing the father's income then to now, and deciding when his income changed, and why.

[130] Rather, the Court must first consider whether the support order was based on the father's declared income or whether income was imputed. Pazaratz J. said that if the support order was based on declared income, then changes in declared income in subsequent years are more persuasive. But if the order was based on imputed income, then the Court must ask:

(a) Why income had to be imputed in the first place?;

(b) Have those circumstances changed?;

(c) Is it still necessary to impute to achieve a fair result?; and

(d) How did the Court quantify the imputed income, and are those calculations still applicable?

[131] The Final Consent Order of June 1, 2017 contains no guidance as to how the sum of $40,000 was arrived at, nor why the word "imputed" was used. Therefore, according to the Supreme Court's direction in L.M.P. v. L.S., this Court must look to the circumstances of the parties at the time.

[132] Those circumstances are:

(a) Both parties were represented by counsel at the time they entered into the Final Consent Order;

(b) The mother already had in her possession the father's bank statements for various years, before she signed the Minutes of Settlement. Although she would now have the Court do some form of a bank account and lifestyle analysis, and conclude that the father's income exceeds $100,000, that was clearly not done, or at least it was not pursued to that extent, at the time of the June 1, 2017 Consent Order. Rather, the parties agreed to "imputed" income of $40,000.00; and

(c) The father's explanation is that the "imputed" income of $40,000 was intended to be his Line 150 income for the previous year, but that he did not have his 2016 tax return at the time of the settlement.

[133] The statement in subparagraph (a) above, is not a disputed fact for which resort to the Court's expanded powers under rule 16(6.1) is required to resolve. Nor is it disputed that the mother had the bank statements at the time, nor that an income to the father in excess of $100,000.00 was not the result agreed to. These facts are all evident on the record before the Court.

[134] Likewise, it is not disputed that the father had not given his 2016 tax return to the mother, at the time they entered into the June 1, 2017 Final Consent Order. The father explained why the sum of $40,000 was used. His explanation is challenged.

[135] Now although he said that he did not have his 2016 tax return at the time of the June 1, 2017 Final Consent Order, his counsel fairly concedes that the tax return was filed with the Canada Revenue Agency prior to June 1, 2017. While this is a credibility issue, the father nevertheless produced a T slip to the mother. He subsequently produced the 2016 tax return, just 1 ½ months, later on July 12, 2017. It revealed that his income was not that much higher. And the father later sent the mother cheques to make up the short fall. These facts are all undisputed.

[136] Regarding the father's explanation as to the reason for imputing, even the mother's own submissions acknowledge that imputing was intended to be an estimate of the father's employment income. During submissions, the mother claimed that she wanted her previous lawyers to take other steps in the prior round of proceedings in pursuit of more imputing based on the prior productions like the bank statements, but she alleged that they did not follow her instructions. She implicitly if not expressly challenged the competency of her prior counsel. She also alleged that her former counsel was unable to follow her instructions, given the limited time that legal aid allocated for this case on a Legal Aid Certificate. I accept none of those criticisms of her former counsel on their merits. But her submission was an acknowledgement that the $40,000 amount was not based on any form of bank account analysis/imputing, because she said her counsel did not do that work.

[137] In addition, the mother failed to place before the Court any actual cogent evidence to challenge the father's assertion about the basis upon which income had to be imputed to him. I would note again here that the mother obtained the Order for the release of the audio recording of the June 1, 2017 attendance, back on October 4, 2018 in this proceeding. But it was not put before me. To the extent that any representations might have been made to the Court on June 1, 2017 about the basis of the "imputing" at the time, I was not given that information.

[138] The father's explanation as to the reason for "imputing" is the logical one that makes the most sense. This is particularly so, when I see that the father's income in other years has mostly been in the low to mid $40,000 range. It also makes sense because in 2014 and 2015, he earned less than $40,000 after his car accident. The parties must have been projecting what his income would be following his return to work, but without his 2016 tax return in hand.

[139] In the result, the parties simply underestimated the amount that he earned in 2016 when they settled on the $40,000.00 amount in the Final Order. The parties could have simply adjourned the June 1, 2017 appearance to await the father's tax return for 2016, to get the precise number. They chose not to, instead preferring to settle that day.

[140] To the extent that the Court must have resort to rule 16(6.1) to determine whether a genuine issue requiring a trial exists, I would weigh the evidence and evaluate credibility in the father's favour here. I find it is fair to do so. I am prepared to accept the father's account. I am prepared to do so because his explanation makes sense, because he produced the 2016 tax return soon thereafter, and he made his best efforts to give the mother top up amounts of child support based on the actual Line 150 amount in his 2016 tax return. And to the extent that any of his math was done incorrectly back then, the mother will now be made whole as a result of this Judgment. As such, his failure to produce the 2016 tax return at the time of the June 1, 2017 Order becomes of no moment.

[141] All of this leads me to the conclusion that income in the June 1, 2017 Order was intended to be based on his prior year's Line 150 income. I find that income had to be imputed to him because he had not produced his 2016 tax return, but it was known to the parties that he would be earning more than he had earned in 2015, given his return to work after recovering from the accident. Therefore, as Pazaratz J. said in Trang v. Trang, changes to the father's taxable income in subsequent years are more persuasive evidence as to whether there has been a requisite change in circumstances, or not. These issues require neither a trial, nor additional disclosure, to determine.

[142] Third, the father also concedes (at least as part of his alternative arguments) that some income attribution to him from his personal injury settlement in 2017 is appropriate, and that too is a change in circumstances. To be clear, his principal position is to dispute that. Had that been strenuously pursued, the Court would have nevertheless concluded that the receipt of that settlement was a sufficient change to warrant a change to the child support also.

[143] A review of the Final Consent Order itself reveals that the parties themselves contemplated that the father's receipt of the personal injury settlement might be a change in circumstances. Otherwise, why would they have imposed an obligation upon the father to provide disclosure about it, in paragraph 21 of the Order? And given the evidence before the Court that some of the personal injury settlement was to replace lost income, I would have no hesitation in concluding that the father's receipt of the personal injury settlement is a change, insofar as his 2017 income and the corresponding child support that he should pay based on that year's income, are concerned.

[144] Therefore, neither a trial, nor additional disclosure are required, for the Court to conclude that the father's receipt of the personal injury settlement also meets the requisite threshold of change. The Court need not resort to its expanded powers under rule 16(6.1) to reach this conclusion.

[145] And finally, as I will come to, neither a trial nor additional disclosure are required either, for the Court to address how the money the father received from the personal injury settlement should be treated as income for child support. As I will explain, there is no more disclosure on this issue to be had. I find that any attribution of income to the father from the settlement can be fairly done by way of legal argument, based on the evidentiary record before the Court.

E. Whether a Trial or Additional Disclosure is Required to Address the Mother's Retroactive Claims

[146] The mother's Motion to Change is confusing as it pertains to retroactivity. On the one hand, she asks for a retroactive variation to January 1, 2017. That would precede the June 1, 2017 Order by a few months. But on the other hand, she also seeks to go back to 2013. That would precede not only the June 1, 2017 Order, but also the predecessor Final Order of October 6, 2015, to which the mother also consented.

[147] The mother relies on certain well-known cases about retroactive support, including in D.B.S. v. S.R.G. 2006 SCC 37. That case concerned an initial application for retroactive support. This case concerns a retroactive variation.

[148] Three days prior to the argument of these motions, the Supreme Court released Michel v. Graydon, 2020 SCC 24, concerning retroactive variations, and in particular, the jurisdiction of the Court to retroactively vary an order, after the child support obligation in it had already expired. That is not the precise circumstance of this case before me, but I accept that this Court can retroactively vary an Order in appropriate circumstances.

[149] In this case, I really need not delve into this issue much further. That is because it is not seriously disputed by the father that there should at least be adjustments to the June 1, 2017 Order going back to the date of the Order, based the subsequent changes in circumstances that I have mentioned above.

[150] Insofar as the mother's request that the Court might reach back and vary, not only Murray J.'s Order of June 1, 2017 but also effectively her Order of October 6, 2015, and order more support for periods prior to those dates, I find the Ontario Court of Appeal's comments in Gray v. Rizzi, 2016 ONCA 152 to be dispositive of the issue.

[151] In Gray v. Rizzi, the payor had not provided disclosure in the initial proceedings. A judge of the Superior Court initially imputed an income of $133,000 to him. That was done in November 2005. The judge then made a child and spousal support order accordingly.

[152] In 2013, the payor launched a Motion to Change and provided better disclosure as part of that proceeding that ought to have been provided initially. On June 10, 2014, the trial judge in that second proceeding held that there had been a material change in circumstances, determined the payor's income back to 2002 and recalculated child and spousal support going over a number of years, including for periods of time that pre-dated the initial Order. The result is that the trial judge decreased the amount owing under the initial Order prior to the change in circumstances.

[152] The Court of Appeal reversed the trial judge's ruling. The Court held that the trial judge erred in finding that the payor had experienced a change in circumstances prior to the November 2005 Order. See ¶ 23. The correct analysis would have been to consider whether there had been a requisite change in circumstances since the making of the 2005 Order, not beforehand.

[154] Gray v. Rizzi was decided under the Divorce Act. The Family Law Act contains different statutory variation language than does the Divorce Act. In particular, section 37(2.1) of the Family Law Act provides, in part, for a variation based on "evidence not available on the previous hearing." When comparing this different statutory language though, at ¶ 33-37, the Court of Appeal stated that a court should not allow a variation under section 37(2.1) of the Family Law Act based on new evidence if the reason that such evidence was "not available" is because of a party's deliberate failure to meet his disclosure obligations in the first place.

[155] In this case before me, the situation is the opposite, in that it is the mother (the support recipient) seeking an increase based on evidence that would pre-date the governing Order (and the previous Final Consent Order of October 6, 2015 too, for that matter). But the mother's desire to do this is just as inappropriate.

[156] Specifically, in this fourth round of these proceedings, the mother is taking old bank statements, produced in prior proceedings, that she had while represented by counsel and prior to settling with the father on October 6, 2015 and again on June 1, 2017, to argue that he really earned more as far back as 2013. She is trying to change the manner in which the father's income was determined in two prior Orders. She wishes to therefore argue that he underpaid child support.

[157] That would call upon the Court to engage in years of re-calculations, when this Court has already dealt with child support multiple times for this family over the years. It would also require the Court to recalculate amounts already agreed to by child support assignees (the Ministry and the City of Toronto), who did not attend and make submissions on these motions before me.

[158] In my view, the mother is not entitled to this relief. There is no application before the Court to set aside either the October 6, 2015 or the June 1, 2017 Final Consent Orders. There is nothing before me to suggest that the father failed to provide the necessary disclosure prior to either Order, nor that there is additional relevant disclosure that she was somehow precluded from pursuing, or that she did not have, at the relevant times.

[159] I find that the mother is not entitled to an increase in support for any period of time prior to the commencement date in the Final Consent Order of Murray J. of June 1, 2017. A trial is not required on the issue of retroactivity, nor does the mother need additional disclosure, to address the date to which child support should be retroactively varied, either.

F. Whether a Trial or Additional Disclosure Are Required for the Determination of the Father's Income

[160] Insofar as the determination of the father's income is concerned, for the purposes of calculating by how much the child support in the June 1, 2017 Final Consent Order should be varied, it is not just the 2016 tax return now available, the father's receipt of the personal injury settlement in 2017, plus the father's Line 150 incomes in other years, that the mother says are relevant and should be included in the analysis. Once again the mother seeks to rely on his old bank statements in an attempt to have the Court recalculate support back to 2013 (which I am not prepared to do for reasons already expressed), but she also says the pattern in those old bank statements warrant an order for updated bank statements, so that she can pursue additional imputing arguments for the years since the June 1, 2017 Order, too.

[161] In this respect, the mother's opposition to the father's summary judgment motion is interrelated with her disclosure motion. In a nutshell, because the father has not provided every piece of disclosure that she has requested, she says summary judgment should not be granted. She also wants to question him on the disclosure once it is provided, and so on that basis, she says this Court should not grant summary judgment, either.

[162] To consider whether the father's refusal to provide certain disclosure is a reason to dismiss the summary judgment motion, and to determine whether the Court should make a further disclosure order, I must turn to the proper legal framework, within this existing variation proceeding, pursuant to which the mother is entitled to advance imputing arguments.

(1) Applicable Legal Principles Concerning the Determination of the Father's Income

[163] Section 2(3) of the Guidelines provides that where, for the purposes of Guidelines, any amount is determined on the basis of specified information, the most current information must be used. Pursuant to sections 15 and 16 of the Guidelines, the father's annual income is determined using Line 150 of his tax returns, subject to any Schedule III adjustments. Neither side made any arguments about Schedule III adjustments.

[164] The Court's use of Line 150 on the income tax returns is subject to sections 17 to 20 of the Guidelines. The mother's imputing arguments are based on section 19 of the Guidelines, and particularly based on sections 19(1)(d), (f) and (h), as well as lifestyle arguments. Therefore, I reproduce the relevant excerpts of section 19, which read:

19(1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

(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;

(h) the parent or spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax.

[165] However, these sections are not an invitation for the Court to arbitrarily select an amount to impute. There must be a rational basis underlying the selection of an amount, grounded in the evidence. See Drygala v. Pauli, 2002 CarswellOnt 3228 (C.A.) ¶44.

(2) The Applicable Terms of the Final Consent Order of June 1, 2017 Concerning Disclosure, and the Applicable Regulatory Provisions

[166] To assess the extent to which both sides have fulfilled their disclosure obligations (but to assess the father's compliance in particular), I begin by referring to the disclosure provisions in the Final Consent Order of June 1, 2017 itself. The terms of the June 1, 2017 Final Consent Order really just memorialize what the parties' ongoing obligations were, after the date of the June 1, 2017 Order, as required by the Guidelines. They essentially incorporate the applicable portions of sections 24.1 and 25 of the Guidelines.

[167] There are also other terms in the June 1, 2017 Final Consent Order, which I have already summarized, which required the father to provide other documentation in relation to certain substantive obligations that he agreed to. For example, he was required to provide documents about his life insurance, and about health benefits coverage for the child. And there is the clause respecting disclosure of the personal injury settlement.

[168] As there is now a new Motion to Change concerning child support and section 7 expenses, both sides were required to serve a sworn financial statement and a Certificate of Financial Disclosure, along with the documents in section 21(1) of the Guidelines. See rules 13(1), 13(1.3), 13(3.1), 13(4.2), 13(5.0.2.), 13(7), and 13(7.1) of the Family Law Rules. The mother was required to provide proof of A.B.'s special or extraordinary expenses.

[169] The financial statement and the supporting documentation that each side was required to provide, was to be kept current throughout the life of the litigation. Pursuant to rule 13(12), before any motion, each party shall update the information in any financial statement that is more than 30 days old, by serving and filing a new financial statement, or an updating affidavit.

[170] While the various documents referred to in these rules and in the Guidelines are to be exchanged by the parties, only some of them must be filed with the Court along with the financial statements. However, on these motions for disclosure and summary judgment, many additional documents have been placed before the Court, in order for me to decide the issues and to assess the mother's allegations of non-disclosure.

[171] Finally, pursuant to sections 21(1) to 21(3) of the Guidelines, parents involved in child support cases are required to provide a number of documents. In the father's case, those documents are tax returns, tax assessments, his most recent statement of earnings, and perhaps a statement of employment insurance as he was out of work for a period of time. In the mother's case, she would be required to provide tax returns, assessments and a statement of benefits.

(3) The Father's Compliance with the Disclosure Provisions in the June 1, 2017 Final Consent Order

[172] Although he was late in two respects, I find that the father has fully complied with the disclosure obligations required by the June 1, 2017 Final Consent Order.

[173] First, although the father did not provide his 2016 tax return at the time the parties entered into the June 1, 2017 Final Consent Order, he sent a copy of it by email to the mother on July 12, 2017. Since his income was $46,895.05 instead of the "imputed" income of $40,000.00 set out in the Order. The father sent the mother post-dated cheques to make up the difference without the need to return to the Court.

[174] The June 1, 2017 Final Consent Order required him to purchase life insurance and name the mother as the irrevocable beneficiary by June 30, 2018. The father did so on June 10, 2017, which was only 10 days after the June 1, 2017 Order, and over a year before the deadline in the Order.

[175] The father inadvertently named the mother as the revocable beneficiary. He corrected his error when it was brought to his attention and sent confirmation of the correction on October 23, 2017. Although he set it up incorrectly, he had still fixed the error well in advance of the deadline under the Order. The father says that to date, the policy remains in effect with the mother as the irrevocable beneficiary.

[176] The father also added A.B. to his employment benefits, in accordance with the Order. That information, and a copy of the benefits booklet, was sent to the mother on July 12, 2017, well in advance of the deadline. I am told that on January 29, 2018, the father's benefits provider accidently reimbursed him for expenses paid for by the mother. The father returned the funds to her right away. He wrote a cheque the same day.

[177] Although the father's personal injury law suit settled on June 1, 2017, he did not send the documents from that to the mother right away. He admits this. He says he was under the impression that more documents were pending, hence his delay. While I address this in more detail below, he provided documentation to the mother at some point in 2018. Once the father retained Mr. Teitel, many additional steps were taken to confirm that nothing further exists, and it is evident to the Court that the father went above and beyond what was required of him in terms of productions here.

(4) The Father's Compliance with the Rules and the Guidelines

[178] Likewise, I also find that the father fully complied with the disclosure requirements in the rules and the Guidelines.

[179] Nevertheless, the mother was entitled to request additional information beyond that which is prescribed. Rule 13(11) says that if a party believes the financial disclosure provided by another party under this rule, whether in a financial statement or otherwise, does not provide enough information for a full understanding of the other party's financial circumstances, the party shall ask the other party to give the necessary additional information, and if the other party does not give it within 7 days, the court may, on motion, order the other party to give the information or to serve and file a new financial statement.

[180] This rule is the starting point for the mother's disclosure motion. But I would find that what the father provided, beyond the requirements of the rules and the Guidelines, is more than adequate too.

[181] The mother's Request for Information dated June 22, 2018 and the father's response to it are attached at Exhibits "H" and "I" of the father's affidavit sworn April 23, 2020. I do not intend to repeat, on a line by line basis, what the mother has asked for in the face of the father's disclosure, and what the father's answers to those requests were. I will say that father's counsel helpfully prepared a chart of the requests and the father's responses to the requests (filed at Exhibit "I"). The chart sets out what the father supplied, it explains which documents that the mother requested do not exist, and where the father has refused to provide documents requested by the mother, the chart explains the basis for his refusals.

[182] The father subsequently served to the mother a Certificate of Financial Disclosure dated September 19, 2018, which is attached as Exhibit "X" to his affidavit sworn April 23, 2020. This Certificate, along with his affidavits filed in support of both motions before the Court, provide a strong evidentiary basis to support my finding that the father produced disclosure above and beyond what is needed for this case.

[183] On May 19, 2020, the father sent a comprehensive disclosure brief in response to the mother's motion. That cover letter that accompanied the brief also contains a chart of the father's responses to the mother's disclosure requests set out in her Notice of Motion dated April 30, 2020. In answering those requests, the father also cross-referenced the mother's earlier Request for Information, his response to it and his Certificate of Financial Disclosure. In a number of instances, he reiterated what he had said to the mother previously in those earlier documents.

[184] Now it is true that the father did not provide documents to respond to each and every of the mother's many requests. As the father's counsel's disclosure chart at Exhibit "I" and the letter of May 19, 2020 and disclosure brief state, several of the requests are not relevant to the issues before the Court: for example requests for documents going back to 2013, documents regarding the sale of the father's previous home, ownership papers for the father's 2017 Hyundai, educational expenses for the father's other children, and so forth.

[185] Without completely detailing everything the father provided and refused to provide in this decision, I will say that the father produced:

(a) two updated financial statements;

(b) tax returns and notices of assessment from 2015 to 2019;

(c) pay stubs;

(d) T4s;

(e) summaries from the Canada Revenue Agency detailing the T-slips from employment that he had between 2015 and 2019;

(f) an employment letter setting out his compensation;

(g) his spouse's tax information and notices of assessment for 2015 to 2019;

(h) numerous documents concerning the personal injury settlement, including correspondence between Mr. Teitel and the personal injury lawyer;

(i) his benefits booklet;

(j) details of the years in which he and his spouse earned rental income from a part of his former residence;

(k) the amounts of gross and net rental income they received;

(l) rental receipts from a former tenant;

(m) details of his credit cards;

(n) the values in his bank account and credit cards to support the values he listed on his financial statements;

(o) a credit application;

(p) a car loan transaction history;

(q) evidence of the value of his car; and

(r) documents to prove the life insurance policy he has to secure child support.

[186] Based on my review of the material before the Court on both motions, and based on the submissions that I heard, I am more than satisfied that the father has provided all that was required of him under the Final Consent Order of June 1, 2017, the Rules and the Guidelines. In fact, he has exceeded their requirements. I make these findings to dispose of all of the various disclosure requests that the mother has made in her motion and across her various affidavits. Nevertheless, in this decision, I will more particularly address the mother's requests for additional bank and credit card statements, and the mother's request for additional documents relating to the father's personal injury settlement, as it is on those areas that the submissions really focused.

(5) Analysis Concerning the Mother's Requests for Additional Bank and Credit Card Statements and for an Accounting

[187] It is well known that a properly sworn financial statement and full financial disclosure are essential requirements of family law cases. But when the question of just how much disclosure is enough comes before the Court, it should also have regard to rule 2 of the Family law Rules. Not only in this rule, but running throughout the Family Law Rules as a whole, are notions of common sense, proportionality and fairness.

[188] In Climans v. Latner, 2020 ONCA 554, the Court of Appeal recently had occasion to comment about the limits of reasonable disclosure in a family law case. While that case was factually different than this one before me, and although the Court discussed disclosure in the context of an appeal of a costs order, the Court held at ¶ 102-105 that disclosure must be considered in context, and in relation to the issues.

[189] Judges in a number of other cases have likewise also commented not only about the importance of full financial disclosure, but also about the limits that should be placed upon it. A litigant's desire to get at every possible shred of disclosure is not the standard. The disclosure process must not deteriorate into a fishing expedition. Disclosure should not be used to cause delay, burden the other side with unnecessary costs, or to reap tactical advantage. It should not be used to confuse, mislead or distract the trier of fact's attention from the main issues. In the same way that non-disclosure can be harmful to a proceeding, so too can excessive disclosure be. And a party need not be put to time-wasting, costly exercises in justifying every dollar that has been spent. See for example Boyd v. Fields, [2006] O.J. No. 5762 (S.C.J.); Kovachis v. Kovachis, 2013 ONCA 663; Milgrom v. Levy, 2019 ONSC 564; and S.B.R. v. L.L.R., 2018 SKQB 177.

[190] In this case before me, the mother seeks the father's joint bank statements from January 1, 2017 to September 21, 2020, proof of any cash deposits into the account from January 1, 2013 to September 21, 2020, a statement of what source any deposits came from, including if it came from the father's spouse, an accounting of all transfers from January 1, 2016 to September 21, 2020, details of two deposits made back in 2013 (well before two Final Orders of this Court were made), credit card statements from January 1, 2017 to September 21, 2020 and explanations for various payments to credit cards going back to 2015.

[191] In response to this, the father's disclosure chart says:

Mr. F. is not prepared to disclose his statements for his various bank accounts, credit cards and other debts, beyond to confirm the values in his Financial Statement. He is a T4 employee, over which he has no control and all of his employment income, his only source of income, is fully reported on his tax returns. Mr. F.'s bank statements are therefore not relevant nor proportionate to the issues in contention.

[192] I agree with Mr. Teitel's statement int eh disclosure chart. In addition, I am dismissing the mother's requests for this additional disclosure and information for the following four reasons.

[193] First, during submissions, the mother said that there are in excess of $100,000 in deposits going into the father's joint account in certain years. For example, she said she counted deposits of $123,183 in 2013 and $111,892 in 2016.

[194] The mother said there are cash deposits and withdrawals being taken from ATMs, too. She believes that the father is working under the table for cash, even though the father has denied that and he has provided Tslips and other employment documentation to the contrary.

[195] The mother made statements to the Court, like how can the father afford to pay for his car insurance, and that he has a bank loan from TD, but she does not know what is that for. The mother claimed that the father admitted earning cash to her in the past, although she did not make this statement in any sworn document before the Court.

[196] In contrast to all this, there is an overwhelming amount of evidence before the Court as to the father's actual financial circumstances.

[197] Regarding her arguments about the activity in the father's account, I repeat again that the father has one bank account, and it is a joint account with his spouse. The mother's submissions that there are desposits in excess of $100,000 per year going into it, largely if not entirely ignore that both the father's, and his spouse's incomes, are deposited into this joint account. The mother's analysis does not account for the fact that into this joint account, there would have been deposited the father's income, his spouse's income, tax benefits relating to their 9-year old child, and perhaps other amounts, such as the rental income that he used to receive for a basement apartment in his home, but which he no longer receives, and which was included on his tax returns in any event, or transfers from their line of credit.

[198] Second, I agree with the father that he was never ordered, at least on an opposed basis, to produce his bank statements (or most of the other information that the mother now asks for). I nevertheless am separately considering the relevance, or even the semblance of relevance of her requests on their merits in this proceeding. But I must place those requests into context, in light of the issues before the Court in this case, and in light of the provisions in the rules and the Guidelines, and the principles articulated in the case law that I have referred to above.

[199] Even though I am dismissing the mother's requests on their merits, I would also not ignore the fact that the mother only had his historic bank statements, as a result of the consent Order of June 9, 2015 and the father's subsequent voluntary actions in prior rounds of proceedings. That has enabled the mother to pursue the lifestyle and imputing arguments now, and she has done so in a misleading fashion. And significantly, the mother settled the prior rounds of litigation based on an income to the father of $40,000, while armed with the very same statements upon which she now relies, and she did so with the assistance of counsel.

[200] Third, I would go on to also consider the father's other, extensively disclosed financial circumstances, which in my view corroborate his account that his earns employment income only, and does not live a life of luxury. According to his financial statement sworn September 4, 2020, the father is the joint owner of a house with his spouse. The house is located in Cambridge, Ontario. They purchased it in 2017 for $541,000.00. That house was paid for in part with the proceeds of sale from a previous home that they owned before that. Although the mother claims otherwise on imputing and lifestyle grounds, the sale proceeds from the previous home is not income for child support, nor is it a basis to impute additional income to him.

[201] The mother has shown me photographs of the father's home, and of his 9-year old's bedroom in that home, in pursuit of her lifestyle arguments. The father and his family live in what might be described as a suburban bungalow. Their house, including the child's bedroom within it, is perfectly nice. But neither the house, nor the bedroom, is particularly lavish or luxurious. Likewise, the mother has made allegations about the car that the father drives. In reality, the father owns a 2017 Hyundai Elantra. It is not a Cadillac, as the mother has alleged in this proceeding. The mother has documentation about his car loan.

[202] And according to the mother's material, the father took a few trips in the past. Yet all of those trips listed in the mother's material pre-date the Final Consent Order of June 1, 2017.

[203] The father's financial statement reveals that he has negligible savings. For example, the father's current house with his spouse is encumbered. There is debt owing on a line of credit, that he also owes jointly with his spouse. Apart from the equity in his home, the father's other non-mortgage debt exceeds his other assets. Nevertheless, the mother wants an accounting of numerous transfers going back and forth between the line of credit and the bank account, over several years.

[204] The father has paid child support as required by the Court's Orders from time to time, and he increased it as he thought was appropriate. He is not required to account to the mother for how he spent his remaining money.

[205] Fourth, I agree with counsel for the father that the cost of allowing additional disclosure, and likely the fall out from that (ie. what the mother will likely do with that information), is completely out of proportion to what is at stake in this litigation.

(6) Whether Additional Disclosure in Connection with the Father's 2013 Motor Vehicle Accident and the 2017 Personal Injury Settlement Should be Ordered

[206] Regarding the personal injury settlement, I agree, at first blush, that it was suspicious that the father settled the personal injury action on the afternoon of June 1, 2017, after having settled the child support issues before Murray J. that morning, and without disclosing the potential for a settlement later that day. His explanation, made through his counsel during the motion, was that he did not know that he was going into a settlement meeting on the afternoon of June 1, 2017.

[207] While his credibility is in issue here, it is mitigated by the fact that he has now fully disclosed the settlement. Two uncontested facts here are critical to the disposition of these motions and the challenge to his credibility, in my view. First, the father did not actually receive any funds on account of the personal injury settlement until after the June 1, 2017 Final Consent Order. As such, this can now be accounted for in a child support analysis. And second, the June 1, 2017 Final Consent Order makes provision for the father to provide that disclosure upon receipt, with which the father has now complied, albeit late.

[208] I am satisfied that the father has fully disclosed all that exists relating to the personal injury settlement. The father has disclosed his Statement of Claim, the Final Releases for the Accident Benefits Claim and for his Tort Claim, the Final Settlement for his Accident Benefits Claim, his personal injury lawyer's accounting of the funds received, and various letters between counsel explaining what the father received and how the benefits are characterized. Counsel for the father has also written to the personal injury lawyer more than once, to seek additional clarification to satisfy the mother that there is nothing more to be provided.

[209] Based on the record before me, I am satisfied that there is nothing further to be disclosed in relation to the personal injury settlement. Alternatively, what has been disclosed is more than sufficient for the Court to determine the income issues.

(7) The Mother's Compliance With Her Disclosure Obligations

[210] I would not depart from the mother's disclosure motion without making an observation about the mother's own conduct respecting her disclosure in this litigation. Despite the hundreds or thousands of pages of material that she filed and her many allegations about the father, the mother did not herself comply with the disclosure requirements of the rules and the Guidelines.

[211] She neither filed an updated financial statement and disclosure as required of her under rule 13(12), nor did she provide a Certificate of Financial Disclosure as required by rule 13(5.0.2). Nor did she provide the necessary proof of the section 7 expenses, as required by rule 13(3.1)(3.) and section 21(3) of the Guidelines.

[212] This is part of the context that the Court of Appeal in Climans v. Latner directed the Court should consider, although perhaps more so when it comes to costs. Nevertheless, the mother's failure to provide disclosure about the section 7 expenses in particular does impact the Court's ability to deal with one of the main substantive issues before the Court on the motions.

(8) Conclusions Respecting Whether the Father's Summary Judgment Motion Should Be Dismissed Based on the Father's Alleged Failure to Provide Disclosure

[213] As I have determined that there will be no further disclosure order made, the mother's argument that there is outstanding disclosure and that militates against the Court addressing this matter by way of summary judgment must fail.

(9) Conclusions Respecting Whether a Trial Is Required to Determine the Father's Income and Consequently Child Support

[214] I find that the June 1, 2017 Final Consent Order can now be varied, to ensure that the mother receives the appropriate amount of additional child support from any additional income now available. These are not circumstances for which a trial is required. Except for perhaps the income attribution issue relating to the father's personal injury settlement received in 2017, a trial is not required to otherwise determine the father's income. An approach that uses Line 150 incomes for all years, except 2017, is appropriate under the circumstances.

[215] And even regarding the personal injury funds, I similarly find that a trial is not required to determine what amount of income should be attributed to the father. It is my view that that can fairly and proportionally be done, based on the evidentiary record currently before the Court, and based on legal argument, with reference to the case law. I turn to that next.

G. The Income to be Attributed to the Father in 2017, From the Personal Injury Settlement

[216] Whether to impute an income under section 19 of the Guidelines is a discretionary decision. The exercise of that discretion must be principled, however.

[217] In Rivard v. Hankiewicz, 2007 ONCJ 180, Murray J. considered whether tax-free annuity payments in settlement of a personal injury law suit should be included as income for child support purposes. At ¶ 24-45, she canvassed a number of authorities and summarized their principles as follows:

(a) In cases where the evidence establishes a portion was paid on account of lost wages and a portion was paid for costs of future care, some courts have determined that only the portion for lost wages will be treated as Guidelines income;

(b) In cases where there is no allocation, some courts by contrast have treated the entire amount as income; and

(c) In some cases, courts chose to attribute the same income to the payor as that earned prior to the accident.

[218] The authorities Murray J. canvassed reveal that a payor, who is a recipient of a damages award, should place some evidence before the Court as to the allocation of damages. Whether there is evidence of any spending of the funds on treatment or care related to the injuries (as opposed to spending on personal items) may be relevant, as will be whether the payments were recurrent (ie. monthly) or paid in a lump sum. See Rivard v. Hankiewicz ¶ 42; see also Lukovnjak v. Weir, 2016 ONSC 6893 ¶ 44-52.

[219] By contrast, in K.(M.) v. S. (R.A.), 2004 BCSC 1798, Wedge J. started her analysis by recognizing that the tort system is based on the premise that the only means to compensate an injured plaintiff for the loss of amenities of life or the enjoyment of life is monetary. An award for non-pecuniary loss is "intensely personal" and is not made to replace an income. It is designed to compensate for non-monetary losses. As are costs of future care awards.

[220] It is not clear whether it was argued in K.(M.) v. S. (R.A.) that had the recipient spent the money he received for non-pecuniary losses or for the cost of care on personal items instead, whether that would have impacted its characterization as income for child support, or not. Nevertheless, Wedge J. took the view that awards for non-pecuniary losses do not fall within section 19(1)(h) of the Guidelines, at all.

[221] The mother asserts that the Ontario Court of Appeal has ruled otherwise. She says that where a payor/settlement recipient fails to provide actual evidence of his pain and suffering by way of medical records, if the settlement lacks a breakdown as to the characterization of damages, and if the respondent "carelessly dissipated" the settlement, the full amount of the settlement should be included in income. She provided me with no actual authority from the Court of Appeal that says this.

[222] One of the cases she cites for that proposition is Fequet v. Fequet. That is a decision of Turnbull J. of the Superior Court, not the Court of Appeal. Turnbull J. determined income on a motion for temporary support. And in Fequet v. Fequet, the Court only attributed to the payor the portion of a structured settlement that pertained to income replacement. The Court declined to penalize the payor for spending some of the settlement on housing, at least at that stage of the case.

[223] The second case upon which the mother relies is Fraser v. Fraser, 2013 ONCA 715. In that case, the Court of Appeal did reject the payor's argument that his entire motor vehicle accident settlement was not income for child support purposes. However, the Court did not say that the entire amount would always be included, either, and in the result of the case, the Court did not include the entire amount.

[224] Rather, in Fraser v. Fraser, there was no evidence before the Court as to the breakdown of damages. While Simmons J.A. disbelieved the father's assertion that none of it would be compensation for lost income, she chose to impute to him interest income calculated on the entire amount he received, rather than including a portion or the whole of the amount received into the payor's income. See ¶ 109-111, and 123. Moreover, this case was more about whether the court below erred in imputing an income to the payor of $80,000 per annum based on various sources, not only the settlement. The Court found that it did, and significantly reduced the amount of income imputed in most years.

[225] Finally, the mother relies on Hunks v. Hunks, 2017 ONCA 247, also from the Court of Appeal. Once again, this case does not stand for the proposition that the mother asserts. The main issue on appeal in Hunks v. Hunks was whether a structured settlement should be characterized as income or property. However, it is clear that the structured settlement in issue in this case, was entirely purchased using the portion of the damages award that had been characterized as lost future income. The case did not address whether the other heads of damages should fall into income, too.

H. Application of the Principles in the Cases to the Father's Personal Injury Settlement

[226] The father settled his accident benefits claim and his tort action for a global sum of $87,000.00. However, that was the gross amount prior to deduction for legal fees and disbursements. After the payment of legal fees and disbursements to his lawyer, the father received a net amount $45,000.00, or about 52% of the gross amount.

[227] Of the total $87,000 settlement, the documentation reveals that $22,000.00 was on account of the father's accident benefits claim. Fortunately, this accident benefits settlement is further broken down as to compensation for various heads of damages. Counsel submits that about 15% pertains to lost income, but the settlement documentation actually reveals that $5,000 of the $22,000, or about 23%, was for income replacement. The other $15,000 was for medical benefits, and $2,000 was for costs and disbursements. And according to the father's personal injury lawyer, after deducting legal fees and disbursements, he actually received only $3,350 (of the $5,000 amount) for income replacement.

[228] That leaves the remaining $65,000.00 of the $87,000 settlement. That was the amount he received on account of his tort claim. Applying the above 52% ratio to net out legal fees and disbursements, that means that the father received about $33,800 in net dollars, for the tort claim. Unfortunately, and despite many requests from Mr. Teitel for additional information, there is no breakdown of this amount, allocated to any particular head of damages, in the settlement.

[229] In her Endorsement of October 1, 2018, Murray J. ordered the father to provide further information about his counsel's calculations of lost wages from the motor vehicle accident settlement. This statement does not refer to a breakdown from the personal injury lawyer. Rather, the father says that his family law lawyer (Mr. Teitel) had at one point prepared a proposal/calculations as to how to pro rate the remaining net tort settlement, based on similar terms or percentages as the accident benefits claim's breakdown. That, he says, is what Murray J. was referring to in her Endorsement of October 1, 2018. The father did not put that calculation before me on this motion, as he says that was a settlement proposal, not his litigation position.

[230] The mother argues that there should be a trial to address how much of the settlement should be characterized as income. However, those submissions again turn on what she says is the need for additional disclosure. On the merits of the issue though, the mother really wants the full $87,000 to fall into his income in 2017.

[231] The father's principal position, on the merits of this issue, is that no amount should be added to his income. The father submitted that the Court has discretion in a retroactive support case to do this. Alternatively, only the sum of $3,305.00, representing the net portion of the accident benefits settlement, that is clearly attributable to income replacement, should be included in the father's income for 2017. And in the further alternative, some kind of pro rating should be done to the tort settlement, using similar percentages as that used respecting the accident benefits settlement.

[232] In my view, neither the mother's, nor the father's first two positions are reasonable. I begin with the mother's positions. First, there is no additional disclosure to be had concerning the personal injury settlement, as I have already said.

[233] Second, regarding the submission that the full amount of $87,000.00 be included in income, the father never received that much money. He lost just over half of it in legal and other expenses incurred in the litigation, to recover the net amount of $45,000.00. The mother's position in this regard is illustrative of the unreasonable positions she has taken. I would not add $87,000 into the father's income in 2017.

[234] I gather her alternative position would be that the full net amount of $45,000 would be included instead. But I likewise do not find that to be appropriate, as not all of it pertains to lost income.

[235] Regarding the father's argument that nothing be added, I would not accede to this polar opposite position. The parties themselves clearly contemplated disclosure of the settlement would be provided in the June 1, 2017 Final Consent Order. Had the father supplied the settlement documentation before the June 1, 2017 Final Consent Order was agreed to, there is no question in my mind that the issues now being raised would have been pursued back then. The parties obviously that that at least some income from the settlement might be attributed to him.

[236] Regarding the first alternative submission that only $3,305.00 from the accident benefits settlement be included in income, that stems from the fact that remaining tort settlement did not contain a breakdown of the characterization. I do not accept this approach either. Simmons J.A.'s comments in Fraser v. Fraser make abundant sense, and it is doubtful that none of the tort settlement was intended to replace income.

[237] In this case before me, I am prepared to find that it is more likely than not that some lump sum amount from both settlements was intended to replace income. However, I have no calculations before me regarding the tort settlement.

[238] One option would be to direct a trial about this. But what additional evidence would there be? Perhaps the mother might flesh out that the father spent the money he received on personal items. She seems to want to argue that he was not as injured as he said he was. She clearly wanted to pursue disclosure to make that argument. And the mother would have the Court find that he actually spent the money he received on his house, and on trips, rather than on his health needs.

[239] It is my view that it is fair and reasonable to adopt the father's third alternative submission, and to pro rate the tort settlement on a similar basis as the breakdown of the accident benefits settlement. The Court finds this approach is the most fair to both sides, under the circumstances. The arguments that the mother wishes to advance about how the money was spent, are a bit of a side issue, in my opinion.

[240] First, I am prepared to accept the principles articulated by Wedge J. as to the reason for compensation for non-pecuniary losses. I accept the principles she stated to a point, although it is not a hard and fast rule. Wedge J.'s analysis suggests that it is fair that some damages not be included in income, although I accept that other cases do not take this position as strongly.

[241] Second, the father rightly points out that he did not get a credit for any overpayments of child support, that he made pursuant to the first Final Consent Order of May 12, 2011, after the accident. That first Order required him to pay child support based on an annual income of $41,590.00, but his income dropped to $20,047.46 and $31,800.48 in 2014 and 2015. Nevertheless he continued to pay the full amount set out in the May 12, 2011 Order, as if the accident had never happened. The Statement of Arrears from the Family Responsibility Office, attached at Exhibit "G" to the father's affidavit sworn September 4, 2020 confirms this.

[242] Third, this is not a case, like in some of the authorities referred to above, in which the payor has been unable to return to work as a result of the accident, and so there is an underlying concern about a child's needs going unmet if the entire settlement is excluded from income. In this case before me, the father has already returned to work, and for the past several years he has earned more than what he earned prior to the accident (ie. for example, he now makes more than his income of $41,590.00 as reflected in the first Final Consent Order of May 12, 2011). The child will therefore continue to receive support based on the father's full employment income going forward in this case.

[243] Fourth, as a result of my decision in this case, the father's 2017 income will now be increased by the pro rated amount of the total settlement he received. The child will therefore receive an even greater amount of child support for the year in which that money falls into his income. This is so, even notwithstanding the fact that the father did not get relief back in 2014 and 2015.

[244] And fifth, one of the approaches in the case law is to impute an amount similar to what the payor earned prior to the accident. The amount that I am attributing to him, will include a gross up, for the reasons explained below. The amount I am attributing to him makes up for the lost income in 2014 and 2015, although not fully. While it does not do so entirely, I am less troubled by that, in light of the finding that I have made that the father did not get the break on child support in 2014 and 2015.

[245] Therefore, I will impute 23% of the net amount of $33,800.00 of the tort settlement to the father as income, meaning that an additional $7,774.00 would be included in the father's income for 2017. In the result, I would add the sum of $11,079 (ie. $3,305.00 from the accident benefits settlement + $7,774.00 from the tort settlement) to the father's Line 150 income for 2017, with a gross-up.

[246] The father argues that even though these amounts from the personal injury settlement were non-taxable in his hands, they should not be grossed up. He relies on the statement of Wedge J. at ¶ 39 of K.(M.) v. S. (R.A.) to argue this.

[247] Respectfully, I am not certain that Wedge J.'s approach is correct. Other cases which I have already cited, including Simmons J.A.'s obiter comments at ¶111 of Fraser v. Fraser, have not taken this approach. See also Fequet v. Fequet ¶ 30. And in my view, the objectives of the Guidelines warrant a gross-up. See ¶ 10-13 of Orser v. Grant, 2000 CarswellOnt 1354 (S.C.J.) per Benotto J. (as she then was).

[248] Therefore, I find the father's 2017 income is calculated as follows:

Line 150 Income for 2017: $43,187.00

Additional Income from Personal Injury Settlement: $11,079.00

Gross Up: $ 4,669.00

Total Guidelines Income: $58,935.00

[249] The father has argued against a gross-up and the mother is acting on her own. As such, neither side therefore gave me a gross-up calculation. Rather than go to the time and expense of having the parties submit additional material, I have used DivorceMate to calculate the gross up based on the tax rates in 2017. My calculation is attached to this decision as Schedule "A". If, and only if, either side believes there is a calculation error in my gross up calculation, the parties may make brief submissions about this when they make costs submissions. This is not an invitation to re-litigate anything else, or to challenge any findings of fact or conclusions that I have made in this decision.

I. Calculation of Child Support

[250] There is a dispute before me as to whether the Court should base child support on the father's income in the year that he earned it (the mother's position), or from the previous year (the father's income).

[251] The mother's position is not actually to her, or to the child's benefit. Again, when the parties entered into the June 1, 2017 Final Consent Order, they did so based on an underestimate of the father's income, in the absence of his 2016 tax return. The most recent full tax return that had been produced at the time was for 2015, and the income the father earned in that year was less than the $40,000 amount that the parties agreed to in the June 1, 2017 Final Consent Order. The father then produced his 2016 tax return in mid July 2017, about 1 ½ months after the June 1, 2017 settlement, revealing that he earned more than $40,000 in 2016. In fact, his Line 150 Income for 2016 was higher than his Line 150 Income over the past 6 years. If the Court does not base child support on prior year's incomes, then the mother and the child will not receive the benefit of the father's increase in income for 2016, as the calculations would only be reconciled starting in 2017 using 2017 incomes.

[252] It may be that the mother's concern is that she will not get a full year of child support based on the additional income from personal injury settlement if I undertake the child support calculations over time frames suggested by the father. If that is the concern, it is misguided. Below, I will show that the mother will in fact get a full year of increased child support that takes into account the gross-up amount that I have added to the father's 2017 income. The only different is that she just gets it for 12 months for the period of mid 2018 to mid 2019 instead.

[253] The father's position, that child support be paid from June 1 of one year to May 31 in the next, is the most sensible for those reasons. In addition, it has the advantage of allowing any further adjustments going forward to be done based on complete tax returns from the previous year, and hopefully without the need for any further cumbersome disclosure processes, like that which occurred in this round of the litigation.

[254] Therefore, I am calculating child support as follows:

Period	Number of Months	Previous Year's Income	Table Amount	Total for the Period
April 1, 2017 to May 1, 2018	14	$46,985.05 (2016)	$424.00 for 8 months $436.00 for 6 months	$6,008.00
June 1, 2018 to May 1, 2019	12	$58,935.00 (2017)	$545.00 for 12 months	$6,540.00
June 1, 2019 to May 31, 2020	12	$44,899.27 (2018)	$417.00 for 12 months	$5,004.00
June 1, 2020 to November 1, 2020	6	$43,488.55 (2019)	$400 for 6 months	$2,400.00
Plus section 7 Expenses Pursuant to the June 1, 2017 Final Consent Order up to November 1, 2020				$11,630.00
Subtotal				$31,582.00

[255] From the arrears calculation, the father is entitled to a credit for the amounts he paid. The Statement of Arrears from the Family Responsibility Office, attached at Exhibit "G" to the father's affidavit sworn September 4, 2020, reveals that he paid the governing orders that were in place from time to time between April 1, 2017 through to September 1, 2020, in full. The father did not owe any arrears as at April 1, 2017, and so all of those payments would be applied current amounts.

[256] The Statement of Arrears that was filed for argument of these motions only covers the period of time up to September 1, 2020. But it reveals a stellar payment history. Therefore, I have assumed based, on his payment history, that the father paid the amounts owing on October 1, 2020 and November 1, 2020 too, while this decision has been under reserve. That would be $716.97 for those two months, being the aggregate of the most recent amount of table child support in the temporary order of Masse J. of October 22, 2019 (ie. $416.97), plus the $300 monthly amount for section 7 expenses set out in the Final Consent Order of June 1, 2017.

[257] As such, the father's payments between April 1, 2017 and September 1, 2020, plus these two additional months of October and November, 2020, total $23,673.63. If I am mistaken and the father did not pay those amounts in October and November 2020, then any such minor adjustment to my math may be brought to my attention when costs are argued.

[258] I am also crediting the father with the 13 direct payments of $65.00 that he made to the mother, between July 1, 2017 and July 1, 2018. This totals $845.00. And below, I am crediting him another $1,500 for section 7 expenses. I will explain that next.

[259] The net result is that the father owes the mother arrears of $5,563.37, calculated as follows:

Subtotal Support Owing as of November 30, 2020: $31,582.00

Less Payments Through FRO: $23,673.63

Less Direct Payments/Post Dated Cheques $ 845.00

Less Credit for Section 7 Expenses $ 1,500.00

Total Owing $ 5,563.37

J. Section 7 Expenses

[260] The Final Consent Order of June 1, 2017 (and the Minutes of Settlement) lacks details as to what the monthly amount of section 7 expenses was to be for, and how the monthly amount of $300 was calculated. The Order does not describe the section 7 expenses, nor does it list their amounts, nor does the Order specify what the mother's income was at the time. While a different paragraph of the Order says that uninsured medical expenses will be shared proportional to incomes, the Order does not say what those percentages were, nor is the $300 per month figure elsewhere in the Order even said to only represent the father's pro rata share of the non-medical section 7 expenses for that matter.

[261] In this context, the father now argues that the mother is not incurring section 7 expenses in such amounts to justify the continued payment of $300.00 per month. For example, he points out that attached to the mother's 2016 tax return, is a list of expenses of only $1,696.36 per year. He argues that this is less than half of the annual amount of $3,600 that he has been ordered to pay to the mother. If this is true, then he is paying 200% of the child's section 7 expenses each year.

[262] In oral argument, the mother disagreed, and submitted that there are additional expenses that are not included on the tax return. The difficultly is that she has not provided to the Court any disclosure of A.B.'s section 7 expenses in any of the years since the June 1, 2017 Final Order was made. In her affidavit dated April 30, 2020 (sworn June 29, 2020) filed in support of the disclosure motion, she just says that the section 7 expenses for 2017, 2018 and 2019, totalled $4,800, $8,196 and $9,513, respectively, but again, no supporting documentation or any breakdown was supplied. And were this actually the case, then there would be arguments about the affordability of these expenses at that level.

[263] Nevertheless, in argument, the mother orally advised the Court that she was incurring child care expenses at the time of Murray J.'s June 1, 2017 Order. She advised the Court that those expenses are no longer being incurred since September 1, 2019.

[264] I am satisfied, based on the mother's admission during submissions, that there has been a change in circumstances respecting the section 7 expenses, since day care was being incurred at the time of Murray J.'s Final Order of June 1, 2017, but it is no longer being incurred as of September 1, 2019.

[265] One approach would be to adopt the father's methodology, and apportion an amount of section 7 expenses similar to the list attached to the mother's 2016 tax return. However, despite her failure to produce proof, I am reluctantly prepared to accept the mother's oral submission that there are other expenses that were not necessarily deductible and therefore not included on her tax returns. And in any event, the document attached to the mother's 2016 tax return, upon which the father would rely for this argument, would have been available at the time the parties agreed to the higher amount in the June 1, 2017 Final Consent Order.

[266] Another approach would be to reduce the section 7 expenses down to $200 per month back to June 1, 2017, as the father asks. But I would not order this either. According to the Final Order of June 1, 2017 itself, the father was not even required to pay $200 per month, let alone the $300 in section 7 expenses, in each month after the Order. At times he was only required to pay $170 per month, and then $200 per month, depending on what life insurance coverage he had in place. The $300 amount did not begin regularly until July 1, 2018. And the change in circumstances about day care did not come until September 2019, according to the mother.

[267] The difficulty is that the mother did not meet her disclosure obligations, by failing to provide the details of the section 7 expenses for the years in issue. She has not put her best foot forward in responding to the father's request for a reduction to the section 7 expenses in his summary judgment motion.

[268] But is the only option directing a trial (which the father does not want) or some other process, because the mother has done this? It is not proportionate to have another hearing about this. The Court's only option is to find that there has been a change in circumstances to the section 7 expenses as of September 2019, based on the mother's admission. Because of the mother's failure to provide disclosure, I cannot do the calculations with any precision. Therefore, I will reduce the section 7 expenses by $100 per month as asked by the father, but only as of September 1, 2019.

[269] If, from the mother's perspective, this calculation is wrong and the reduction is too great, then the mother must bear some responsibility in not putting the necessary information before the Court.

[270] In varying the section 7 expenses component of Murray J.'s Final Consent Order of June 1, 2017 in this fashion, I am mindful of the Supreme Court's comments in L.M.P. v. L.S. ¶ 47-50. The Court should limit itself to making only the variation that is justified by the change.

[271] It is for this reason that I have given the father an additional credit of $1,500.00 in the above child support analysis (ie. $100 per month reduction to section 7 expenses x 15 months (September 1, 2019 to November 1, 2020)).

K. Conclusions Respecting Child Support, Section 7 Expenses and Arrears

[272] Therefore, commencing December 1, 2020, the father shall now pay to the mother child support in the amount of $400.00 per month, based on his 2019 Line 150 income of $43,488.55. In addition, he shall pay to the mother the sum of $200.00 per month for section 7 expenses, commencing December 1, 2020.

[273] Subject to any minor adjustment in the event that the father did not pay the table amount owing under the temporary Order of Masse J. dated October 22, 2019, and the amount for section 7 expenses owing under the Final Consent Order of Murray J. dated June 1, 2017, in October and November, 2020, arrears of child support up to November 30, 2020 are now fixed at $5,563.37. However, I will not order that they be paid by the father at this time. The Court will invite submissions about how these should be repaid, when the Court hears submissions on costs.

L. Whether a Trial Is Required For Another Reason

[274] It is worth repeating, again, that the father is, and has been, a salaried employee. He never made a lot of income. He has been diligent with respect to his child support obligations, and mostly diligent with respect to his disclosure obligations over the years.

[275] I have found it to be appropriate to adjust to the amount of child support in the June 1, 2017 Final Consent Order, taking into account his subsequent production of his 2016 tax return, the fact that his income exceeded the "imputed" amount of $40,000.00 in the Final Consent Order of June 1, 2017 in that and subsequent years, and the fact that he received the personal injury settlement. But his new child support obligation was and is no where near the level that the mother claimed it should be.

[276] It would neither be fair, nor proportionate, to allow this case to continue. I have found it to be in the interests of justice to grant summary judgment based on the extensive record before the Court. I have highlighted a couple of areas wherein the father's credibility was called into question, but I have been able to resolve those credibility issues without the need for a trial, and even without the need for oral evidence on the summary judgment motion by way of a mini-trial. I have also found myself able to deal with the section 7 expenses.

[277] I have done so while finding it neither proportionate, nor reasonable, nor necessary to grant any additional disclosure to the mother on her disclosure motion. And there are no genuine issues requiring a trial in this case.

[278] For similar reasons, I would also dismiss the mother's request for questioning pursuant to rule 20(5) of the Family Law Rules and for some other form of cross-examinations as she has requested.

M. The Mother's Motion for a "Change of Venue"

[279] The mother wants this Court to transfer her case to the Superior Court of Justice "permanently". Her "change of venue" request is based on an assertion that there are "very complex issues in the case that go beyond the scope of the services provided by the "O.C.J."

[280] In light of my ruling on these motions, this issue is largely moot. But to the extent this request was some sort of threshold issue to this Court going on to address the issues before it on their merits, I will address this request on its merits, too.

[281] The parties have dealt with child support in the Ontario Court of Justice for the past 10 years. As I will explain there have already been three Final Orders made. This is a Motion to Change their most recent, Final Consent Order concerning child support. It is well established that it may only be varied by this Court, absent a reversal or a different order to correct an error on appeal. Moreover, although this case is not particularly legally complex, even if it were, there is no legal principle, statutory rule, or any reality to the notion that this Court is incapable of handling complex litigation. The mother's request to transfer this case to the Superior Court has no basis, and it too is dismissed on its merits.

N. The Mother's Litigation Conduct and the Father's Request for an Order Restricting Her Ability to Commence Further Litigation In this Court

[282] The father's Notice of Motion for summary judgment asks for orders that the mother may not commence further proceedings against the father without leave of the Court, and that the mother's Motion to Change is an abuse of process. These requests for relief were framed in the father's Notice of Motion as requests under sections 140(1)(c), (d) and section 140(5) of the Courts of Justice Act. These are the vexatious litigant sections.

[283] Only a judge of the Superior Court may grant relief under section 140(1). However, as counsel for the father pointed out in submissions, section 140(5) says that nothing in section 140 limits the authority of a court to stay or dismiss a proceeding as an abuse of process or on any other ground. But that section has no application to this proceeding any longer, as I have dealt with the proceeding in its entirety on its merits.

[284] That does not mean that this Court is without authority to place limits on the mother's access to this Court in the future. The mother has conducted this litigation, and her related appeals, in a particular manner. She is entitled to take an aggressive approach. But she is not entitled to waste court time, cause the other side to incur unnecessary costs and engage in abusive behaviour towards the father's counsel in the process.

[285] The father is a man of modest means. History over the past few years reveals that there have been minor, but not significant, fluctuations to his income. He also has support obligations for his 9 year-old child of his new relationship. The father cannot afford to keep litigating like this with the mother. The mother is choosing to litigate, in this Court, on her own. The father, by contrast, had the right to and made the decision to retain counsel, to ensure his best position was put before the Court. That is not an inexpensive proposition. He should not have to get drawn back into expensive and protracted litigation, unless there is merit to it, and even then, it must be controlled.

[286] There has been far too much litigation between the parties over child support. The first case began about a decade ago. The parties have been litigating on and off for 10 years, and they have been in particularly heated litigation in this round of the litigation, for the last 2 years. The litigation needs to stop. It is financially harmful.

[287] This Court, even though it is a statutory court, has the ability to control its own process to ensure that the objectives of Rule 2 are met. The Court also has an obligation to others requiring access to the Court, to ensure that resources are not unnecessarily devoted to this case, and thereby taken away from those others. See Tiveron v. Collins, 2017 ONCA 462; see also G.S.W. v. C.S., 2018 ONCJ 286 ¶ 321.

[288] Apart from the review contemplated at paragraph 11 of Murray J.'s Order of June 1, 2017, to which the parties already agreed, and which will not be included in the terms that I will Order, I intend to restrict the mother's access to this Court going forward unless she first gets leave. I will set out those parameters below. I am making this Order for the following reasons:

(a) I have already described, in detail, the litigation history of this round of the proceedings alone. It includes an expensive and unnecessary disclosure motion, and three appeals/motion for leave to appeal in the Superior Court and the Divisional Court, multiple 14B Motions relating to the conduct of the proceedings, and thousands of pages of material filed in relation to these various steps;

(b) In her materials before this Court, the mother has inappropriately referenced supposed statements or alleged verbal orders by different judges, made at conferences and on the appeals;

(c) In her materials before this Court, the mother wanted to have the Court disregard two prior Final Consent Orders, and engage in years of child support reviews, improperly;

(d) The mother has failed to comply with prior procedural directions of this Court, and of the Superior Court, including those which both placed limits on the amount of material that could be filed, and respecting how that material was to be filed;

(e) The mother has not paid at least one costs order. That is the costs order of Lederer J. dated February 28, 2020. The fact that it was only for $200, and it remains unpaid, is very telling. It remains to be seen what will transpire regarding Akbarali J.'s costs order of $500.00. And this Court has yet to hear costs submissions in connection with these motions;

(f) Most importantly, the mother has taken steps that are completely out of proportion to the amount of money in issue. That includes not only the steps she took to pursue modest amounts of child support in this case, but also her further appeals or attempts to appeal the Superior Court's minor costs orders, too.

[289] There is also evidence before the Court that mother has engaged the father and his counsel in "letter-writing campaigns". I am particularly troubled about the manner in which the mother has treated the father's counsel, Mr. Teitel. Several of her communications to Mr. Teitel are abusive. For example:

(a) the mother has told Mr. Teitel that he is not a very good lawyer, and that he should find better things to do with his time;

(b) the mother has told Mr. Teitel to return to law school and to brush up on his math skills;

(c) the mother has told Mr. Teitel that he is an "embarrassment to [her] case";

(d) the mother has accused Mr. Teitel of perjury, and threatened him with a complaint to the Law Society of Upper Canada;

(e) the mother has called Mr. Teitel, "new counsel to [her] case with no experience";

(f) the mother has referred to Mr. Teitel as a young, inexperienced lawyer, who just was called to the bar in 2014;

(g) the mother has made personal comments about Mr. Teitel;

(h) in one of her emails to Mr. Teitel, the mother sent an emoticon of a middle finger to him;

(i) the mother has accused Mr. Teitel of various forms of malpractice; and

(j) the father has good reason to believe that the mother has disparaged Mr. Teitel online; (the mother denies this, although the comments online resemble those which have been made in her correspondence).

[290] In several paragraphs of her affidavit sworn August 21, 2020, filed in response to the father's summary judgment motion, the mother accuses Mr. Teitel of threatening behaviour, inappropriate tactics, harassment, professional misconduct, perjury and defamation of character against her.

[291] Because the mother has called Mr. Teitel's professionalism and competency into issue, and she has even accused him of criminal behaviour, this Court feels compelled to comment about Mr. Teitel's conduct.

[292] Mr. Teitel prepared professional materials for the father. They were helpful to the Court. Mr. Teitel's advocacy for his client on this motion was of a high calibre. He capably made his arguments, and he distilled for the Court an incredible volume of material, with relative ease. In response to each of the Court's questions, Mr. Teitel was readily able to direct the Court to an appropriate reference or exhibit in the volumes of material before the Court. He was also respectful to the mother during submissions. Mr. Teitel is not the affiant of the material before the Court. He did not commit perjury.

PART V: ORDERS

[293] I make the following orders:

(a) The mother's Notice of Motion dated April 30, 2020 for financial disclosure and other relief is dismissed in its entirety. To be clear, and except for arguments about costs, this dismissal includes the various requests for relief that the mother included in her affidavits and factum, too;

(b) The father's requests for orders dismissing the Motion to Change in his Notice of Motion dated April 23, 2020 are dismissed;

(c) The father's request for an order that the mother is a vexatious litigant, based on section 140 of the Courts of Justice Act, is dismissed;

(d) The father's Motion for summary judgment on the Motion to Change and on the Response to Motion to Change is granted on the following terms;

(e) Commencing December 1, 2020 and on the first of each month thereafter, the father shall now pay to the mother child support for A.B. in the amount of $400.00 per month, based on his 2019 Line 150 income of $43,488.55;

(f) Commencing December 1, 2020 and on the first of each month thereafter, the father shall pay to the mother the sum of $200.00 per month for section 7 expenses for A.B.;

(g) Arrears of child support up to November 30, 2020 are fixed at $5,563.37. However, I will not order that they be paid by the father to the mother at this time. Submissions may be made about their repayment when the Court hears submissions on costs;

(h) The amount in paragraph (g) above is subject to the father having already paid the sum of $716.97 to the mother in October and November, 2020. If he did not, that may be brought to my attention in the costs submissions and I will make the necessary minor adjustment to my math;

(i) Likewise, if either side takes issue with the Court's gross-up calculation appended to Schedule "A", then that too may be brought to my attention in the costs submissions and I will make the necessary minor adjustment to my math;

(j) The terms of paragraphs (h) and (i) are not an invitation to make submissions about any other matter, nor to challenge any conclusions the Court has made or any findings of fact;

(k) The parties shall exchange the disclosure required by section 24.1 of the Child Support Guidelines on or before June 1 each year, commencing June 1, 2021. To be clear, in the mother's case, that includes proof of the child's section 7 expenses for the previous year and in the current year;

(l) For clarity, the father is paying child support in this Order based on his previous year's income;

(m) Except for the review contemplated in paragraph 11 of the Final Consent Order dated June 1, 2017, if the mother wishes to commence any further Motions to Change, she must obtain leave of this Court. If she intends to seek leave, she shall do so by way of 14B Motion, accompanied by an affidavit limited to 5 pages inclusive of attachments setting out any changes in circumstances after the date of this Order, and she shall indicate in her 14B Motion that the judge hearing the motion should read this decision, which will be located in the Endorsements record;

(n) The Court will then consider whether to allow the proceeding to begin at all. It may also decide to give directions as to how any variation might be dealt with. For example, if the basis for a future Motion to Change is merely that the father's Line 150 Income is different, then that may be dealt with by way of a paper Motion to Change, in writing, and in chambers. Or a more significant change may require a more involved hearing;

(o) The Court will hear submissions on costs of these motions in writing. The father, as the successful party, shall file his costs submissions on or before December 3, 2020. Submissions on costs shall be limited to 5 pages, double spaced, plus a Bill of Costs, a copy of any Offers, and case law; and

(p) The mother shall file her costs submissions on or before January 8, 2021, subject to the same restrictions on their length and the attachments.

Released: November 3, 2020

Signed: Justice Alex Finlayson

SCHEDULE "A"

GROSS UP CALCULATION

[Gross-up calculation details to be inserted based on DivorceMate calculations using 2017 tax rates]