DATE: June 12, 2023 COURT FILE NO. D45125/08 ONTARIO COURT OF JUSTICE

B E T W E E N:

MARIA NIEMBRO

AYEESHA HUSSAIN, for the APPLICANT

APPLICANT

- and – MARCELLO SERPE

BRIAR DOWNEY, DUTY COUNSEL, assisting the RESPONDENT

RESPONDENT

HEARD: JUNE 9, 2023

JUSTICE S.B. SHERR

Endorsement

Part One – Introduction

[1] The applicant seeks a stay of the respondent’s motion to change the parenting and support terms of the final order of Justice Melanie Sager, dated December 17, 2019 (the existing order). The existing order was made after a two-day trial. The applicant asks that the stay continue until the respondent pays the costs that were ordered by Justice Sager arising from the trial.

[2] The respondent asks that the applicant’s request for a stay be dismissed and that he be permitted to continue with his motion to change.

Part Two – Brief background

[3] The parties have one son together (F.S.). F.S. has significant special needs and lives with the applicant. F.S. is now 18 years old.

[4] On December 8, 2009, Justice Robert Spence made a final order that the applicant have custody of F.S.

[5] On July 13, 2010, Justice Spence ordered the respondent to pay child support to the applicant of $333 each month, based on his annual income of $36,000.

[6] The existing order was made pursuant to a motion to change brought by the applicant. On consent, Justice Sager made parenting time orders. She also ordered, not on consent, that starting on June 1, 2020, the respondent’s annual income be imputed at $45,000 and that he pay the applicant child support of $418 each month, together with $167 each month towards the child’s special expenses.

[7] On June 2, 2020, Justice Sager ordered the respondent to pay the applicant’s costs fixed at $5,916.67 (the costs order). She permitted the respondent to pay the costs ordered at $150 each month.

Part Three – The motion to change the parenting time orders

[8] The court’s authority to make or change parenting orders is governed by Part III of the Children’s Law Reform Act (the Act).

[9] The court has no authority to make or change a parenting order under the Act once a child turns 18 years of age.

[10] Subsection 18 (3) of the Act reads as follows:

Child

18 (3) A reference in this Part to a child is a reference to the child while a minor.

[11] A minor in Ontario is anyone under the age of 18. Section 1 of the Age of Majority and Accountability Act reads as follows:

Age of majority

1. Every person attains the age of majority and ceases to be a minor on attaining the age of eighteen years.

[12] F.S. turned 18 in April 2023 and is no longer a minor. The court no longer has the authority to make or change parenting orders regarding him. The respondent’s motion to change the parenting terms in the existing order is dismissed.

Part Four – The stay request

4.1 Legal considerations

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

a) An order for costs;

b) An order dismissing a claim;

c) An order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit or any other document filed by a party;

d) An order that all or part of a document that was required to be provided but was not, may not be used in the case:

e) If the failure to obey was by a party, an order that the party is not entitled to any further order from the court, unless the court orders otherwise;

f) An order postponing the trial or any other step in the case; and

g) On motion, a contempt order.

[14] Section 106 of the Courts of Justice Act reads as follows:

Stay of proceedings

106 A court, on its own initiative or on motion by any person, whether or not a party, may stay any proceeding in the court on such terms as are considered just.

[15] In Lahey v. Gauthier, 2015 ONCJ 393, Justice Sheilagh O’Connell stated, at paragraph 38, that the wording of subrule 1(8) is sufficiently broad to allow the grant of a stay of a claim, where it is necessary for a just determination of the case and where there has been a wilful failure to follow the rules or obey an order in the case. See: Martin v. Martin, [2005] O.J. 4567 (Ont. SCJ); Wreggbo v. Vinton, 2013 ONCJ 250.

[16] In Pearce v. Kisoon, 2019 ONSC 4389, the court observed that different considerations may apply to striking pleadings or granting stay orders on motions to change where the defaulting party seeks to invoke the jurisdiction of the court to vary an existing final order – the court may be more willing to grant the stay or strike the pleading. Also see: Blackwood v. Nichols, 2022 ONCJ 313.

[17] In Dickie v. Dickie, 2007 SCC 8, [2007] 1 S.C.R. 346, the Supreme Court of Canada affirmed the general rule that a court will not hear a litigant who has wilfully breached a court order until the litigant has cured the breach. This discretion is grounded in the inherent jurisdiction of the court to control its own processes and in the Courts of Justice Act, which gives the court express power to stay a proceeding. See: Oelbaum v. Oelbaum, 2011 ONCA 300.

[18] A stay should not be ordered if there is merit to the claim and the person ordered to pay costs is genuinely impecunious. See: Larabie v. Montfils, 2004 CarswellOnt 186 (Ont. C.A.), Blackwood v. Nichols, supra.

[19] In exercising its discretion under subrule 1 (8), and in determining whether to grant a stay, the court should consider the primary purpose of the rules set out in rule 2 – to deal with cases justly. See: Blackwood v. Nichols, supra.

4.2 Analysis

[20] The respondent acknowledges that he has not made any of the required costs payments.

[21] The respondent first submitted that he had no knowledge of the costs order. When the court pointed out to him that on July 31, 2020, Justice Sager had dismissed his motion to set aside the costs order, the respondent changed his submission and claimed that he meant that he had never seen the entered costs order.

[22] The court found the respondent’s submissions disingenuous. Justice Sager wrote a 6-page costs endorsement. It was emailed to the respondent by court staff. The email confirmation is in the endorsement record. The respondent received this endorsement as he moved to set it aside. He then received Justice Sager’s endorsement dismissing his motion to set aside the costs order, as he subsequently brought a Form 14B motion asking that this endorsement (that had been handwritten) be typed out. It was typed out and sent to him.

[23] The respondent was aware of the costs order. He chose not to pay anything towards it.

[24] The respondent submitted that he cannot afford to pay the costs order. This is the same submission that he made to Justice Sager when he unsuccessfully moved to set it aside. Justice Sager wrote that the respondent submitted that payment of the ordered amount of $150 per month towards the costs order will not allow him to make the child support payments and he will face “financial disaster” should the costs order not be set aside. She rejected this submission.

[25] The court may have been more sympathetic to the respondent’s submissions of financial difficulties if he had made any effort to pay the costs – just a portion of them.

[26] The court does not accept the respondent’s submission that he has been unable to afford to pay anything towards the costs order.

[27] The respondent submitted that the applicant suffered no prejudice from his failure to pay the costs order because she is on legal aid. The court does not accept this argument. It is well established that the receipt of legal aid is not a factor in costs decisions. See: Loncar v. Pendlebury, 2015 ONSC 4673; Baksh v. Baksh, 2017 ONSC 3997; Tahir v. Khan, 2019 ONCJ 781.

[28] This submission also misses the point that the court ordered the respondent to pay the applicant these costs and he has breached that order.

[29] In her costs endorsement, Justice Sager found that the applicant had acted reasonably and that the respondent had acted unreasonably during the case. It would be unjust, within the meaning of rule 2, to require the applicant to engage in what will likely be another lengthy round of litigation with the respondent when the respondent has totally disregarded the costs order arising from his unsuccessful and unreasonable conduct from the last round.

[30] The respondent submits that he has a strong case on the motion to change because of changes in his financial circumstances. The evidence does not support this claim.

[31] On initial examination, the respondent will have a real challenge of establishing a change in his financial circumstances since the making of the existing order. The respondent was unemployed during 2019 and at the trial. Justice Sager rejected his evidence that he could not work due to depression and anxiety. She made a finding that the respondent was intentionally unemployed and imputed income to him.

[32] In Trang v. Trang, 2013 ONSC 1980, Justice Alex Pazaratz made the following observations about the challenges of changing a support order where the court imputed income:

51 . When a court imputes income, that’s a determination of a fact. It’s not an estimate. It’s not a guess. It’s not a provisional order awaiting better disclosure, or further review. It’s a determination that the court had to calculate a number, because it didn’t feel it was appropriate to rely on – or wait for -- representations from the payor.

52 . A party who argues that an imputed income level is no longer appropriate must go beyond establishing their subsequent “declared” income. They must address why income had to be imputed in the first place. They must present evidence of changed circumstances which establish that either:

a. It is no longer necessary or appropriate to impute income. The payor’s representations as to income should now be accepted, even if they weren’t accepted before; or

b. Even if income should still be imputed, changed circumstances suggest a different amount is more appropriate.

53 . If “declared income” automatically prevailed on a motion to change support, it would defeat the purpose of imputing income in the first place. It might even be a disincentive for payors to participate in the initial court process. They could simply ignore support Applications – as they often do. They could wait to see if the court imputes income, and how much. If dissatisfied with the amount, the payor could later return to court waving their tax returns, to suggest that the original judge got it wrong.

55 . Similarly, the onus should not fall on the support recipient to establish why income should still be imputed on a motion to change. That determination has already been made. The onus is on the support payor to establish that there should be a change in the way their income is to be calculated.

58 . Imputed income matters. The reason why income had to be imputed matters.

59 . If an aggrieved party feels income was wrongly imputed, they can take timely steps to correct the original determination. They can appeal. They can bring a motion to set aside the order based on mistake or misrepresentation.

60 . But if a payor proceeds by way of motion to change, they must face the presumption that the original order was correct – and the original imputation of income was correct. If they want to rely on their declared income, they must establish why this time their representations should be accepted by the court.

[33] If anything, the respondent’s financial circumstances appear to have improved since the existing order was made. He earned over $41,000 in 2021. He has not provided his 2022 income tax return and notice of assessment. A recent 2023 pay stub indicates that he was paid $20 per hour for a 40-hour work week.

[34] The court considered that there are no longer any parenting issues before the court which would have dictated more caution before ordering a stay, or in ordering terms to lift the stay. See: King v. Mongrain, 2009 ONCA 486.

[35] These factors all inform the court that it is just in these circumstances to stay the balance of the respondent’s motion to change until he has paid a meaningful portion of the costs order.

[36] In determining the amount of costs that must be paid to lift the stay, the court considered that the respondent may soon be able to establish a material change in circumstances affecting child support.

[37] F.S. will likely be eligible for Ontario Disability Support Plan payments (ODSP) as he is 18 years old and has significant special needs. The applicant is also looking into F.S. moving into a resource facility that can manage his needs. It is unclear at this point whether this will result in any changes to the respondent’s support obligations – but it may. The guidelines approach may no longer be appropriate. See: Subsection 3 (2) of the Child Support Guidelines.

[38] The court has also considered that the respondent’s child support payments are presently in good standing. This persuaded the court to slightly reduce the amount of costs that the respondent must pay to lift the stay.

Part Six – Conclusion

[39] The court orders as follows:

a) The respondent’s motion to change the parenting terms in the existing order is dismissed.

b) The balance of the respondent’s motion to change is stayed.

c) The respondent may move to lift the stay by Form 14B motion, on notice to the applicant, upon providing proof that he has paid her $4,800 towards the costs order, by either money order or bank draft.

d) If the respondent fails to pay $4,800 to the respondent within 90 days, the applicant may move by Form 14B motion, on notice to the respondent, to dismiss his motion to change and seek conditions that must be met before the respondent can start any new motion to change.

[40] The applicant informed the court at the hearing that she will not seek costs for this step in the case. The respondent, who was intent on attacking the applicant during his submissions, should be aware that this is a generous act by her. He is also very fortunate that she chose not to bring a motion for security for costs.

Released: June 12, 2023

Justice Stanley B. Sherr