Kinsman v. Walker, 2022 ONCJ 588

ONTARIO COURT OF JUSTICE

DATE: December 30, 2022 COURT FILE No.: DFO 19058 01

BETWEEN:

Susan Kinsman Applicant

— AND —

Dale E. Walker Respondent

Before Justice P. J. Jones

Motion argued on: November 24, 2022 Ruling released on: December 30, 2022

Counsel: Mr. Rob McNeillie.......................................................................... counsel for the applicant Mr. Ash Mazinani....................................................................... counsel for the respondent

JONES, P. J. J.:

[1] This is my decision with respect to a motion brought by the Respondent to set aside a final uncontested trial order made by Justice Scully on January 13, 2022, and permit him to file a Response to the Motion to Change within 30 days.

[2] The order sought to be set aside is an order that varied the child support order made by Justice Scully dated September 27, 2016.

[3] The order relates to the child Jacob Walker who is now an adult child of the parties and who is no longer attending a full-time program of education. The court based the Respondent’s continuing obligation to pay child support on section 31(1)(c) of the Family Law Act (R.S.1990, c.F.3, as am.) Justice Scully found that Jacob, born May 2, 2002, is a child who is unable, by reason of illness, disability or other cause, to withdraw from the charge of his parents. Justice Scully also found that the Respondent had underpaid his child support obligation due to his failure to provide any financial disclosure.

[4] As the Respondent did not participate in the proceedings, the varied order made significant changes to the terms of the original support order and fixed substantial arrears on an imputed income.

[5] The new order:

1. Increased child support from $1,188 per month, based on the Respondent having an annual imputed income of $132,600, to $2,300 per month based on the Respondent having an annual imputed income of $270,978 commencing January 1, 2022.
2. Fixed substantial arrears of $82,482.72 owing as of December 31, 2021, by the Respondent to the Applicant. In fixing arrears, the court imputed an annual income to the Respondent of at least $270,978 effective January 1, 2016. The court reassessed support on the best information available, then deducted the actual support paid, to arrive at the fixed arrears set out in the order.
3. Included a term requiring the Respondent to pay section 7 expenses for the first time.
4. Required the respondent to maintain a life insurance policy of $500,000 for so long as he is obligated to pay child support, failing which the Applicant and the child would have first charge on his estate for the equivalent value.
5. Required the Respondent to pay $200 per month to the child’s RDSP.
6. Fixed costs payable by the Respondent to the Applicant of $19,719.88

[6] This matter came before me as the new case management judge as Justice Scully had fully retired in June 2022. As case management judge, I reviewed the file in its entirety, including reviewing the documents filed at the original application and the documents filed in support of the Motion to Change, the affidavit filed in support of the motion for sub service in 2021 and the Applicant’s 23C motion and affidavit in support of a default final order. I have also reviewed all the material filed in support and in opposition to the motion to set aside the final default order.

Background

[7] The Applicant and the Respondent started living together on or about December 1, 1999 and separated on February 1, 2003.

[8] They are the natural parents of Jacob Walker born May 2, 2002.

[9] Jacob has always been in the sole care of the Applicant. The Respondent has lived in British Columbia for many years and has visited Jacob infrequently.

[10] Jacob is now 20 years old, lives with his mother, and is in receipt of Ontario Disability Benefits.

[11] The material in the file indicates that Jacob has been diagnosed with autism spectrum disorder. The psychological assessments filed in support of the 23C relief were very detailed and support the claim by the mother that Jacob remains a dependant child. The Report of Dr. Gray contains the following comment at page 14, “Jacob needs to receive individualized and one to one support throughout the remainder of his schooling and into adulthood, while navigating occupational, housing and self-care challenges.” According to the mother’s affidavit, this 2019 report was prepared at the instance of both parties and shared with both parties. In support of Jacob’s Disability tax Credit Form, (appended to the material), Dr. Gray wrote:

“Jacob needs full support from his mother to function. He is not able to live independently and needs daily consistent supervision and support from an adult. He needs his mother to make meals, clean, make sure he dresses appropriately for the weather, give reminders for medication, help with basic hygiene, reminders to shower, brush teeth, use deodorant, etc.”

[12] The original application proceeded to conclusion on an unopposed basis. On that occasion, the Respondent admits being served substitutionally, but swears that he did not oppose the application because “he was willing to pay guideline support.” Not only did he not file an answer, he did not file any financial disclosure on which the court could calculate guideline support. Every application includes the following statement, “You MUST fill out a Financial Statement (Form 13-a blank copy attached), serve a copy on the applicant(s) and file a copy in the court office with an Affidavit of Service even if you do not answer this case.” It is also notable that the application he was served with in 2016 did indicate that the Applicant was seeking to impute an annual income to him of $142,329; when his 2016 Notice of Assessment was produced for the first time in 2022, it reports an income of $194,833, substantially more than the income imputed to him by Justice Scully in the 2016 order at $132, 600.

[13] His explanation for not filing financial disclosure in 2016 was as follows: he said that he believed that the court “had access to his most recent tax information and would set his child support accordingly.” (Para 2 of his affidavit dated November 16, 2022).

[14] No financial disclosure was ever produced by him. In other words, he did not provide annual disclosure as is required under the legislation to allow for annual readjustments of child support. The first financial disclosure received came as a result of my order requiring production of his NOAs for 2016-2021 as a precondition to his bringing a motion to set aside the unopposed trial order. The following information was received:

2016: $194,833, 2017: $236,271, 2018: $275,221, 2019: 268,380, 2020: $289,854, and 2021: $185,777

[15] The Respondent is a sophisticated litigant. The Respondent has a law degree. He practiced as a lawyer from 1988 to 2003, then started working for the Worksafe BC and continued there until his retirement in 2020. He continued to receive a full salary until September 2021. At the time of his retirement, he was a vice president of that organization. At no time did he advise the Applicant that his income was understated in the 2016 order, nor did he advise the Applicant that his income, over the years, had increased substantially.

[16] According to the Applicant, she brought the motion to change, after she became aware that the Respondent was earning far in excess of the amount used to compute the child support order in 2016. Appended to the material filed in support of her motion to change in 2021, is a copy of the B.C. public sector salaries database: 10th edition, published in the Vancouver Sun on January 13, 2021, that indicated that the Respondent earned $270,978.41 as a VP with Worksafe B.C. in 2019.

[17] The Applicant hired a lawyer who wrote two letters to the Respondent in March 2021 (sent both by email and regular mail) inviting the Respondent to enter into negotiations to resolve the issue of retroactive child support and to fix the amount of on-going child support and section 7 expenses based on fulsome financial disclosure by the Respondent. These letters cautioned the Respondent that, if he refused to engage in negotiations, the matter would be brought to court. The Respondent did not respond to those letters. He said he never received them.

[18] The material filed in support of the motion to change in 2021 contains an email exchange between the parties discussing a possible reduction in child support based on the fact that the Respondent would be fully retired in August 2021 and that his income would be reduced. For the first time, the Respondent provided some financial disclosure indicating that his annual income post retirement would be $61,516 per annum, which would translate, according to him, using the “child support Calculator, to $582.37 per month” child support. He also made reference to the fact that Jacob would be 19 years old in May. He wrote,

“ As well, in Ontario. Where a continuing dependency exists after the age of 18 due to, among other things… “illness, disability, or other cause”, there may be a continuing obligation to provide child support. However, where the child is over the age of 18, is still entitled to some child support, and still earns some income, that income should contribute toward the child’s expenses This would impact the amount of the child support. So…my point is-if Jake earns income, some of that should, in principle be deducted from the child support payments.”

[19] When the parties were unable to reach an agreement between themselves, the Respondent unilaterally reduced his support payments to $582.37 per month.

1. As the Respondent did not enter into negotiations with the Applicant’s lawyer, the Motion to change was commenced. A process server was engaged, and that process server was unable to serve the Respondent personally at his Surrey address as attempted service was made in July and the Respondent had moved from that address in June 2021. The process server did speak to the Respondent personally by telephone, but, according to the Respondent, he refused to give his new address to the process server, as the process server refused to identify the documents he was attempting to serve on him, and he became suspicious.
2. On September 8, 2021, Justice Scully made a subservice order by email on the basis that he was satisfied on the material filed that the Respondent was evading service. This order allowed email service at two email addresses, one address was his work email, which, according to the Respondent was no longer in service on his retirement, and the other, was at his personal email address -- the email used by the parties to communicate with one another.
3. The Respondent did not file an answer, nor did he file any financial disclosure. Justice Scully made a disclosure order. The Respondent did not respond.
4. On November 15, 2021, Justice Scully noted the Respondent in default and adjourned the matter to January 13, 2022 for an uncontested trial. On January 13, 2022, Justice Scully made the order the Respondent now seeks to set aside.
5. The Respondent swears that he did not have actual notice of the proceeding as his email settings are such that emails from unknown parties are sent straight to his junk folder where they are automatically deleted in bulk. He swears that he first became aware of the January 13, 2022, order in June when he was contacted by the Family Responsibility Office. He maintains, that if he had been aware of this proceeding, he would have participated in the proceeding and that he has an arguable defence on the merits. He claims to have received no notice of these proceedings and not to have receive any correspondence from the Applicant’s lawyer in March 2021, not by email (into his junk file) nor even by regular mail (unclear how two pieces of mail correctly addressed could both go astray).
6. The Applicant argues that the court should dismiss the Respondent’s motion to set aside the default order. She argues that I should not accept the Respondent’s assertion that he never had actual notice and that this claim lacks credibility. On the first application, he similarly did not participate, and by not providing financial disclosure he underpaid child support from 2016-2021. His non-participation on this occasion should be viewed in the same light.
7. She argues that he does not come to court with clean hands. He has knowingly withheld disclosure and knowingly underpaid child support for their disabled child with the result that she and Jacob existed pay cheque to pay cheque, while he enjoyed the lifestyle of a high-income earner.
8. She asks the court to reject the Respondent’s claim that he has an arguable case relating to the computation of arrears, or the on-going eligibility of his son for support during the periods in which arrears have been calculated. Further, as to the ongoing support order, she notes that Justice Scully had been made aware of the Respondent’s claim that he was fully retired as she had included his emails to that effect, however, Justice Scully made the ongoing orders based on an annual income of $270,978 due to a lack of reliable financial disclosure from the Respondent. She argues that if the Respondent wishes to change the ongoing support orders on the basis that he is now fully retired, the proper procedural route would be to bring a motion to change supported by current, reliable financial information. In para 17 of her affidavit filed in support of her 23C motion, she wrote: “I am further seeking that such support continue based on the stated 2019 salary, in the face of the Respondent’s alleged retirement until such time that the Respondent provides a financial statement and income documentation to verify his actual income.”

The Law

[20] In deciding whether to set aside the January 13, 2022, final uncontested trial order, in whole or in part, I have considered the following:

1. Rule 25(19)(e) of the Family Law Rules provides that, the court may, on motion, change an order that … (e) was made on notice, if an affected party was not present when the order was made because the notice was inadequate, or the party was unable, for a reason satisfactory to the court, to be present.

2. According to Gray v Gray, 2017 ONCA 100, the definition of change should be broadly interpreted to include the ability to set aside a default order, if, to do would “best promotes the efficient and just resolution of family law matters.”(para 13) In Gray, the Court of Appeal recognized that family law matters are different, quoting with approval Benotto J.A. in Frick v Frick (2016), 2016 ONCA 799, 132 O.R. (3d) 321 at para 11,

   “The Family Law Rules were enacted to reflect the fact that litigation in family law matters is different from civil litigation. The family rules provide for active judicial case management, early, complete and ongoing financial disclosure, and an emphasis on resolution, mediation and ways to save time and expense in proportion to the complexity of the issues. They embody a philosophy peculiar to a lawsuit that involves a family.

3. The onus is on the party moving to set aside the order and ultimately the decision as to whether to set aside is a matter of judicial discretion. Irons v. Irons, 2020 ONSC 1471 at para 112 and 113.

4. The Court of Appeal listed 5 factors that the court should consider in determining whether to set aside default judgment, as set out in Mountain View Farms Ltd. v McQueen, 2014 ONCA 194, namely: a. Whether the motion was brought promptly after the defendant learned of the default judgment, b. Whether there is a plausible excuse or explanation for the defendant’s default in complying with the rules; c. Whether the facts establish that the defendant has an arguable defence on the merits; d. The potential prejudice to the moving party should the motion be dismissed, and the potential prejudice to the respondent should the motion be allowed; and e. The effect of any order the court might make o the overall integrity of the administration of justice.

5. The court in Mountain View Farms at para 50 and 51 states that these factors are not to be treated as rigid rules. The court is to “consider the particular circumstances of each case to decide whether it is just to relieve the defendant from the consequences of his or her default.” As well, “an arguable defence on the merits may justify the court exercising its discretion to set aside the default judgment, even if the other factors are unsatisfied in whole or in part.

6. It is not an error to assess credibility at this stage: more is required than self-serving statements devoid of detailed evidence supporting key assertions. See HSBC Securities (Canada) Inc v Firestar Capital Management Corporation, 2008 ONCA 894 at para 28, “a self-serving affidavit does not create a triable issue in the absence of detailed facts and supporting evidence”.

7. In determining whether a party has an arguable case on the merits, he need only show that his defence has an “air of reality”, not whether the defence will necessarily succeed. The Court should consider whether the outcome at trial “could well have been materially different” if the Respondent’s evidence had been heard and found credible. See Irons v Irons, 2020 ONSC 1471 at para 116.

8. “While there is broad discretion and flexibility under the Family Law Rules, and under r.25(19) in particular, at least one of the five preconditions outlined in Mountain View Farms must be engaged before the broad judicial discretion under r. 25(1) of the Family Law rules can be invoked: E.S.R. v R.S.C., 2019 ONCJ 361, at para. 70” Para 22 Ontario Family Responsibility Office v Berta [2021] O.J. No. 1963.

9. The court under this rule may, in its discretion, set aside all of the order, (see Gray supra), or part of the order (see Benarroch v Abitbol et al, 2018 ONSC 5964 or dismiss the motion completely, see Gajic v Lazeo, [2019] O.J. No 6219.

Discussion

Service

[21] The Respondent does not contest the fact that he was served in accordance with the sub service order of Justice Scully made September 8, 2021. However, the Respondent seeks to set aside the final order on the basis that he was never actually served with the motion to change and therefore was not in a position to contest the orders sought.

[22] He acknowledges that the subservice order reflects his correct email address; he does not dispute that documents were sent to that address if the Applicant’s counsel swears it is so. However, he swears that he never received any of the court documents or any of the communication from the Applicant’s counsel because they went straight to his junk folder, where they were automatically deleted in bulk. He swears that his email settings are such that any email from an unknown sender is automatically sent to his junk folder.

[23] He asks the court to accept that it was as a result of his email settings that he failed to actually receive notice of the motion to change, and that if he had received notice, he would have contested the claims.

[24] On the issue as to whether I accept the Respondent’s assertion that he did not receive actual notice of the proceeding, I have reviewed the record and find there are serious issues relating to the Respondent’s credibility. For example;

1. The letters sent by the Applicant’s counsel were sent by both email and regular mail. The Respondent’s explanation that he never received any notice of this pending action because his email setting sent emails from unknown sources directly to the ‘junk file’ and then they are deleted in bulk does not explain why two letters sent at different times by regular mail to his home address in March 2021 would both have also gone astray.
2. The Respondent’s explanation that the documents served on him by email went directly to his junk folder and then were automatically deleted in bulk is hard to accept. The exact details as to his email settings were not included i.e., how long documents remained in junk before being deleted. He would have the court believe that he only accepted emails from known sources and never checked his junk file over a nine-month period to see if any information he required had been improperly filtered out (he says he checked in June 2022 and found no emails relating to this matter.) At least five emails were sent to him on this file over a six-month period, including the original documents, the disclosure order, the order permitting the matter to proceed by 23C, the 23C motion material and the final order, and none of them, according to the Respondent, came to his attention.
3. The Respondent says that he spoke directly to the process server but refused to provide his new address because he became suspicious when the process server refused to identify the documents and referred to them as confidential. As I do not accept his claim that he did not receive the letters sent in March 2021 by the Applicant’s lawyer outlining the Applicant claims and advising him that legal action would follow unless negotiations were entered into, I find that he would have had a very good idea what these documents might be about, especially as he had indicated to the Applicant that he was intending on reducing his monthly support payments for Jacob, and the parties spoke of involving lawyers if no agreement was reached.
4. The Respondent is a sophisticated litigant. His emails to the Applicant, when he was personally attempting to negotiate a settlement in anticipation of his retirement (as set out above), reveal an understanding of the Ontario child support legislation relating to adult disabled children, and the workings of the Child Support Guidelines. Yet, in his affidavit filed in support of setting aside his order, he swears at para 8 of his October 19, 2022 affidavit, that “I was offering to continue to pay child support notwithstanding the fact that Jacob was above the age of majority and no longer eligible for child support because Jacob had only recently turned 18 years old and I had not turned my mind to the fact that he was no long eligible to receive child support.” The prior emails exchanged between the parties suggest that he had clearly addressed his mind to this issue.
5. The Respondent is a sophisticated litigant. In his November 16, 2022, affidavit at paragraph 2, in an attempt to explain why he did not participate in the 2016 proceeding, he asked the court to accept that he did not participate because he was content to pay guideline amount and he “assumed that the Court had access to my most recent tax information and would set my child support payments accordingly.”
6. The Respondent is a sophisticated litigant. The Respondent never provided any financial disclosure to the Applicant until his income was about to fall dramatically due to his pending retirement. When he was served with the 2016 order and it was clear that this order was based on an income figure that grossly understated his income, he was silent: throughout the time his annual income was increasing, he was silent. For years he knowingly benefited financially from his failure to provide disclosure, and the Applicant and Jacob were disadvantaged by reason of his underpayment.

Was the Motion to Set Aside Brought Promptly After Defendant Learned of Default Judgment

[25] The final order was made on January 13, 2022. The Respondent claims to have become aware of the order in June 2022 when he was contacted by the Family Responsibility Office for enforcement purposes. In contrast, the Applicant’s affidavit asserts that the Respondent was emailed the signed final order on February 24, 2022, by the Applicant’s lawyer. By June 2022, the parties were attempting to resolve the issues and in August 2022 the Respondent brought a motion seeking a date to set aside the final uncontested order. I am satisfied that the Respondent moved with reasonable speed to set aside the order.

Plausible Explanation/Excuse for Failure to Respond and Default in Complying with the Family Law Rules

[26] As I am satisfied that the Respondent was properly served in accordance with the subservice order of Justice Scully, and as I do not accept the explanation proffered by the Respondent that he was unaware of the motion to change, I find that there is no plausible explanation/ excuse for failure of the Respondent in complying with the Family Law Rules. The Respondent is a sophisticated litigant, with legal training, and would have been able to comply with the Rules.

Arguable Defence on the Merits

[27] I have carefully reviewed the submissions of the parties on this issue. I note that the January 13, 2022, final order contains a number of provisions, some prospective in nature and some retrospective in nature, and the order also includes an order for costs. I am aware that I may set aside all, some or none of the terms of the final order.

Request to set aside arrears

[28] I see no air of reality to his defences relating to his request to set aside the order made by Justice Scully fixing arrears at $82,482.72 for the following reasons.

[29] The Respondent claims that he should not have been required to pay support to the Applicant for a period of time when Jacob was in the care of Jewish Child and Family Services (JCFS) in 2015-2017, and that he now seeks a credit for monies paid. This claim has no air of reality. During that time, the Respondent was involved with the JCFS treatment plans and paid his support regularly. His claim that the arrears should be adjusted at this late date on the basis that he paid support during a time his son was in and out of psychiatric facilities and treatment homes five or seven years ago and was not living full time with the Applicant (he says he did not know that this might be an issue) has no merit, and if raised at a trial would not materially affect the outcome.

[30] The Respondent claims he should be able to challenge that portion of the arrears that relates to the time that Jacob was over 18 years and not going to school. He acknowledges that his son is autistic but maintains that Jacob’s eligibility for support during the period is a triable issue. I have reviewed the psychological reports filed and the description given by the Applicant as to Jacob’s struggles with self-sufficiency during that period and her assertion that Jacob was totally dependant on her during that time period. From the time Jacob turned 18, the Respondent has had little direct contact with him and has no first-hand knowledge of Jacob’s day to day functioning. The Respondent filed no new reports nor any new information relating to the functioning of his son during this period. I am satisfied that the Respondent has not raised a triable issue with respect Jacob’s entitlement to support as a child unable, by reason of illness, disability or other cause, to withdraw from the charge of his parents up to and including January 13, 2022.

[31] The Respondent argues that the quantum of the arrears is not accurate and that he should be able to set aside the order and provide actual income figures. He noted that the arrears are based on $270,978 and that his NOA’s for 2016-2021 are as follows:

2016 $194,833, 2017: $236,271, 2018: $275,221, 2019: $268,380, 2020: $289,854, 2021: $185,777

[32] As in Gajic v Lazeo [2019] O.J. No. 6219, it may be tempting for the court, with the benefit of hindsight, to set-aside the support payable and do a recalculation on the basis of actual income. However, as I am satisfied that the information on which the arrears were calculated was the best evidence available to the court at the time, and that it was the inaction of the Respondent in not providing timely financial disclosure from 2016-2021 which led to the court to impute income to the Respondent on his most current known income, I am not prepared to set aside the order relating to arrears and permit a recalculation. As Justice Bale, in a similar situation, wrote in para 115 of Gajic v Lazeo,

“...in my view to do so would have a negative impact on the administration of justice. Non-participation and non-disclosure by payor spouses should never be incentivized; the Respondent was willful in his inaction with respect to both. …Permitting the Respondent to re-litigate this matter, in the circumstances of this case, would serve an injustice to the Applicant and reflect poorly upon the family court process and the administration of justice.”

Setting Aside the Current Support orders

[33] The Respondent argues that the prospective support orders are not in accordance with the Child Support Guidelines as they are based on his income while employed and not his current income now that he is retired fully. As such, he argues that that portion of the final order dealing with his support obligations going forward should be set aside as he has an arguable defence to those orders as they are based on misinformation as to his annual income for guideline purposes. He notes that the court would need to determine the correct child support order based on his current annual income now that he is retired, his ability to obtain $500,000 in life insurance, his ability to pay sec 7 expenses, and his ability to make a $200 per month contribution to his son’s RDSP. The Applicant raised this issue of the Respondent’s retirement in her affidavit filed in support of her 23C motion for final uncontested trial order. This final order was granted on the basis of the information contained in that affidavit. In para 17, she wrote: “I am further seeking that such support continue based on the stated 2019 salary, in the face of the Respondent’s alleged retirement, until such time that the Respondent provides a Financial Statement, and income documentation to verify his actual income.”

[34] I agree that these prospective support issues were always subject to further consideration and raise a triable issue. Those issues would need to be litigated if no consent on these issues is reached.

[35] As to Jacob’s continuing eligibility for support, this is an issue that must be established before a support order is made. On a go forward basis, I see this as a triable issue as I am unable to know what may have occurred in the life of Jacob since the order of Justice Scully dated January 13, 2022, was made.

Potential Prejudice to the Moving Party Should the Motion Be Dismissed, and the Potential Prejudice to the Respondent Should the Motion Be Allowed

[36] The Applicant followed the Family Law Rules and proceeded to obtain an uncontested final order. If I were to set aside this order, she would be put back into the same position as she was before bringing and prosecuting this action.

[37] If I do not set aside this order, the Respondent will be left with no recourse with respect to the fixing of arrears but will still be able to bring a motion to change relating to the terms of the ongoing child support order as such a procedure was contemplated at the time the final order was granted. I find that it would be highly prejudicial to the Applicant to reopen all issues and require her to spend further time, money and effort to deal with this case when I see no arguable case made out by the Respondent relating to the fixing of arrears. In balancing potential prejudice to each party, I find there would be disproportionate prejudice to the Applicant if I were to set aside the final uncontested order of Justice Scully dated January 13, 2022.

The Effect of Any Order the Court Might Make to the Overall Integrity of the Administration of Justice

[38] “In considering the effect an order may have on the integrity of the administration of justice, the court is to consider all the factors set out above and weigh them in the context of the facts of the case.” Irons v Irons [2020] O.J. No. 2465, para 118.

[39] On the facts of this case, if I were to set aside this final order and allow the Respondent to start afresh, this decision would damage the reputation of the administration of justice. I say this for the following reason. I find that the Respondent willfully and knowingly withheld his financial disclosure over the years. If the Respondent had provided annual financial disclosure, that disclosure would have resulted in an annual readjustment of support given the upward trajectory of his income.

[40] The obligation to provide accurate, timely financial information is the most basic obligation in family law. See Roberts v Roberts, 2015 ONCA 450. By his failure to provide that disclosure to the court in 2016, at a time when he admits to having been served, he put the court in the position where it imputed income to him that was an underestimate of his actual income. He knowingly allowed this situation to continue for years until this motion to change was brought by the Applicant in 2021. By failing to provide accurate and timely disclosure, he deprived his son, who suffers from a disability, of support that was rightfully his. This is a serious matter.

“As the Supreme Court suggested in Leskun v Leskun, [2006] 1 S.C.R 920, 2006 SCC 25, at para. 34, nondisclosure is the cancer of family law. This is an apt metaphor. Nondisclosure metastasizes and impacts all participants in the family law process. Lawyers for recipients cannot adequately advise their clients, while lawyers for payors become unwitting participants in a fraud on the court. Judges cannot correctly guide the parties to a fair resolution at family law conferences and cannot make a proper decision at trial. Payees are forced to accept an arbitrary amount of support unilaterally determined by the payor. Children must make do with less. All this to avoid legal obligations, which have been calculated to be fair quantification of the payor’s required financial contribution. In sum, nondisclosure is antithetical to the policy animating the family law regime and to the processes that have been carefully designed to achieve those policy goals.” (See para 44 of Leitch v Novac, 2020 ONCA 257)

Decision

[41] In applying Rule 25(19)(e) and the caselaw to the facts of this case, I find that the Respondent’s motion to set aside the January 13, 2022, final non-contested trial order should be dismissed with costs and I so order.

[42] In the circumstances of this case, the most efficient and fairest procedure under the Family Law Rules to deal with the situation faced by the Respondent given his retirement is for him to bring a Motion to Change with proper financial disclosure.

[43] If the parties are unable to agree on costs written submissions may be submitted as follows:

a. By the Applicant on or before February 1, 2023, not exceeding three pages in length plus a bill of costs. b. By the Respondent on or before February 15, 2023, not exceeding three pages in length plus a bill of costs. c. Reply by the Applicant by February 22, 2023, not exceeding two pages. d. If costs submissions are not received by February 1, 2023, the issue of costs will be considered settled.

Released: December 30, 2022 Signed: Justice P. J. Jones