Barnes v. Burke, 2023 ONCJ 421
Court File and Parties
DATE: September 28, 2023 Court File Number: D55692/11 Ontario Court of Justice 47 Sheppard Ave. E, Toronto, Ontario
Applicant: A. Barnes Counsel: J. Irwin
Respondent: J. Burke Counsel: J. Pecchia
Justice: M. Sager In Chambers
This endorsement is related to the Respondent’s 14B Motion to lift the stay of his Motion to Change child support which was ordered on January 7, 2020. The Court has now received a response from the Applicant and below is my decision on the father’s motion.
Introduction
[1] In 2016 the Respondent (father) brought a Motion to Change parenting and child support orders made by Justice Geraldine Waldman on July 25, 2013. He amended his claim in April 2017.
[2] In September of 2017 the Applicant (mother) brought a Summary Judgment Motion seeking to have the father’s request to change the parenting orders dismissed. A decision was released on November 27, 2017 and the father’s Motion to Change parenting orders was dismissed in its entirety.
[3] The father’s Motion to Change child support was adjourned by the court to a date after costs of the Summary Judgment Motion was decided. On March 13, 2018, the father was ordered to pay the mother her costs of the Summary Judgment Motion fixed at $26,000.00.
[4] The father appealed the decision on the Summary Judgment Motion to the Ontario Superior Court of Justice. His appeal was dismissed and on October 16, 2018 he was ordered to pay the mother’s costs of the appeal fixed at $16,000.00 [^1].
[5] No steps were taken by the father to proceed with his Motion to Change child support following the Summary Judgment in November 2017 until October 2019.
[6] In October 2019, the father served and filed a 14B Motion seeking direction from the court on how to proceed with his Motion to Change child support. As two years had passed without any activity on the Motion to Change, a Case Conference was scheduled for January 7, 2020.
[7] On January 7, 2020 the father’s Motion to Change was stayed due to his failure to provide basic financial disclosure, an updated sworn Financial Statement and pay the outstanding costs orders which at that time were slightly over $49,000.00.
[8] On January 20, 2023, the father filed a 14B Motion with the court seeking to lift the stay of his Motion to Change. In support of his request, the father filed an affidavit sworn January 20, 2023. On January 30, 2023, I released an endorsement advising that before the court can consider lifting the stay, the Respondent had to provide evidence of his efforts to pay the outstanding costs orders, obtain a statement of arrears from the Family Responsibility Office and provide an affidavit detailing the financial disclosure he has provided to the Applicant. The 14B Motion seeking an order to lift the stay with dismissed without prejudice.
[9] On June 28, 2023, after the Respondent filed an additional affidavit sworn June 2, 2023 in support of his request to lift the stay of his Motion to Change, I released an endorsement directing the Respondent to serve the 14B Motion and Affidavits in support on the Applicant so she could respond. The Applicant was given 30 days to serve and file a response which was later extended on consent.
[10] The Applicant served and filed an affidavit sworn August 27, 2023 in response to the Respondent’s 14B Motion asking that it be dismissed.
[11] This is my decision on the Respondent’s 14B Motion seeking to lift the stay of his Motion to Change child support ordered on January 7, 2020.
The father’s position on the 14B Motion to lift the stay of his Motion to Change
The father’s evidence of a material change in circumstances since the date of the final order
[12] The father’s evidence is that since he has earned far less income then imputed to him by Justice Waldman on July 25, 2013, there has been a material change in circumstances requiring a review of his child support obligation. The father says that he is “deaf and hard of hearing a condition that was known at trial but has negatively impacted my ability to sustain full-time employment at the income level the Ontario court of Justice imputed, and at times I have had to rely on social assistance for employment and income support.”
[13] The father provides a chart of what he says his earnings have been since 2011. This chart discloses “Personal /Taxable income” and income from two corporations controlled by the father.
[14] The father’s affidavit states that around 2015 he was approved for a disability tax credit by the Canadian Revenue Agency (CRA), which he believes is evidence of his inability to earn income at the level imputed to him in 2013. He says as a result, he has overpaid child support in excess of $70,000.00 and over contributed to section 7 expenses for the children in excess of $19,000.00.
[15] The father also relies on the decision of the Assessment Review Board for the Province of Ontario dated April 13, 2018, in which the father was successful in having his 2016 property taxes cancelled due to “extreme poverty” and an inability to pay. He says this decision supports his claim that a material change in circumstances has occurred since the final order. The father represented himself in this proceeding. He advised the Board that he earned a total monthly income for 2016 of $6,793.00 of which $2,125.00 was “board” paid by his father “who lives with him” and $2500.00 in loans from family. The rest of the income was from various other sources.
[16] According to the decision, the father also told the Assessment Review Board that he has monthly expenses of $11,276.00 which include $4,020.00 in mortgage payments, $884.00 in car expenses, and $1979.00 in “family support payments” [^2].
The father’s evidence of his efforts to come into compliance without outstanding court orders
[17] The father’s evidence is that in March 2020 he filed a voluntary assignment in bankruptcy and that the costs owed to the mother will be nullified due to his bankruptcy. The father provides a letter from his insolvency lawyer as an exhibit to his affidavit sworn January 20, 2023, which he says, “explains the efforts I have made to attempt to come into compliance with outstanding court Orders and the Family Law Rules.” The letter from Matthew R. Harris Professional Corporation dated November 30, 2021, states that the father is “taking steps to clean up his debts and liabilities, and has been working with his Trustee to attempt to apply for his discharge and move forward with his life.” Other than this statement, the letter only serves to provide evidence that the discharge from bankruptcy will stay the debts owed to the mother as a result of the costs orders.
[18] The father acknowledges in his evidence that he owes the mother $49,347.59 in costs that “are included in my bankruptcy proceedings”. There is no evidence of any payments made by the father towards these costs.
Financial Disclosure produced by the father
[19] The father says that the stay of his Motion to Change was ordered because he did not serve and file an updated sworn financial statement for the January 7, 2020 Case Conference [^3]. He says that the lawyer he retained at the time prepared a sworn financial statement but neglected to file it with the court. The lawyer provided the father with a letter saying that in fact he prepared the financial statement but did not serve nor file it.
[20] The father therefore argues that he was disadvantaged by his lawyer’s actions.
[21] In his affidavit sworn June 2, 2023, the father deposes that on March 21, 2023, he swore a financial statement in response to a proceeding brought against him by the Family Responsibility Office. He attaches a copy of the financial statement to his affidavit. As a result, the father says now both the mother and the court have a recently sworn Financial Statement.
[22] The father also states at paragraph 4 of his affidavit that he has prepared his 2020, 2021 and 2022 Income Tax Returns. He does not state whether the returns have been filed with the Canadian Revenue Agency and if he has received a Notice of Assessment for each year. However, he states at paragraph 19 that funds of just over $11,000.00 will become available once he files his 2020 to 2022 Income Tax Returns with the CRA. Therefore, he has not in fact filed his Income Tax Returns for the last three years. [^4]
[23] The father’s evidence in support of this motion is that he is “unaware of any outstanding financial disclosure” and that he is “unsure of what further disclosure this Honourable Court wishes for me to provide.” He says that he intends “to make full and frank financial disclosure for my motion to change.” He also says that as he was ordered not to serve his 14B Motion seeking to lift the stay on the Applicant to avoid her incurring unnecessary costs, he is concerned that “if I continue to send disclosure to the Applicant, prior to the stay being lifted, that I will be subject to claims for costs.”
[24] Finally, the father provides an updated statement of arrears of child support from the Family Responsibility Office which discloses total child support arrears owing to the mother of $55,758.43 as of March 1, 2023.
The mother’s position on the father’s 14B Motion seeking to lift the stay of his Motion to Change child support
[25] The mother says that the court should not lift the stay of the father’s Motion to Change child support for the following reasons: (a) The mother has not received any meaningful financial disclosure from the father for years. (b) The father has not even provided basic financial disclosure including his last three years of Income Tax Returns and Notices of Assessment as he has not filed his last three years of returns with the CRA. (c) The father has upgraded his education and has provided no details of same to the mother. (d) The father is self-employed and discloses gross business income of $66,000.00 per year on his financial statement sworn on March 21, 2023, but has provided no financial disclosure regarding his current income to the mother. (e) The father has outstanding costs orders related to the parenting issues of $46,650.00. (f) The father commenced bankruptcy proceedings in 2020 which have not yet been resolved. The Application was adjourned “sine die” in October 2021 at the request of the father’s lawyer and no updating information has been provided to the mother.
[26] The mother says that given the facts as set out above, she should not be required to incur legal fees to defend the Motion to Change. She says the father should cure these deficiencies before being permitted to move forward with his Motion to Change.
[27] Subrule 14(21) of the Family Law Rules (the Rules) provides the court with the authority to restrict a party from bringing any further motions without the court’s permission. It is this rule under which the stay of the Motion to Change was ordered.
The law
Powers of the court
Subrules 14(21) and 1(8) of the Family Law Rules
[28] Subrule 1(8) of the Rules states as follows:
Failure to obey order (8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that 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.
[29] Subrules 1(8) and (8.1) of the Rules gives the court wide discretion to make orders against a party who is in noncompliance with a court order or the rules.
Financial disclosure pursuant to the Child Support Guidelines
[30] Section 21 of the Child Support Guidelines (the Guidelines) sets out the financial disclosure that a party to a claim for child support must provide if necessary to determine the amount of a child support order. For an employed party, they must provide the other party with copies of their personal income tax returns including attachments and their notices of assessment for the three most recent taxation years.
[31] A self-employed party must furnish the other party with copies of the financial statements of the parent’s or spouse’s business or professional practice, other than a partnership, and a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the parent or spouse does not deal at arm’s length.
[32] Where a parent controls a corporation, they must provide the other parent with the financial statements of the corporation and its subsidiaries, and a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the corporation, and every related corporation, does not deal at arm’s length.
Rule 13(15) and 13(16) of the Family Law Rules
[33] Subrule 13(15) of the Rules obliges a party on an ongoing basis to serve a corrected, complete or up to date document, including a sworn financial statement, upon learning that the previously provided document is incorrect, incomplete or out of date. Subrule and 13(16) of the Rules requires a party to provide a document they are obliged to provide pursuant to the Rules immediately upon learning they had failed to do so.
[34] A self employed party must provide the other party with the following financial disclosure when claims are made for child support: For the three most recent taxation years, (i) the financial statements of the parent’s or spouse’s business or professional practice, other than a partnership, and (ii) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the parent or spouse does not deal at arm’s length.
[35] The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing. Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled. Financial disclosure is automatic. It should not require court orders. See: Roberts v. Roberts, 2015 ONCA 450; Manchanda v. Tethi, 2016 ONCA 909; Colucci v. Colucci, 2021 SCC 24.
Stays and lifting a stay
[36] In C.L.B. v. A.J.N., 2022 ONCJ 313, Justice Sherr considered a mother’s request to lift the stay of her Motion to Change both parenting and support orders. Justice Sherr reviewed the law with respect to striking pleadings and orders for a stay of a matter from paragraphs 28 to 34 as follows:
[28] Where children’s interests are involved, courts should use utmost caution in striking pleadings because trial courts need the participation of both parties and information that each can provide about best interests. See: King v. Mongrain, 2009 ONCA 486, [2009] O.J. No. 2466, C.A.). The same principle applies when a court is determining whether it should order a stay of proceedings involving children. See: Dalechuku v. Dalechuku, 2021 ONCJ 53.
[29] 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.
[30] These principles should also apply to requests to lift a stay.
[31] However, there will be situations where it is necessary for a just determination of the case to order (or maintain) a stay of the proceedings where there has been a willful failure of a party to follow the Family Law Rules or to obey orders in the case. See: Martin v. Martin; Wreggbo v. Vinton, 2013 ONCJ 250.
[32] In Pearce v. Kisoon, 2019 ONSC 4389, the court observed that different considerations may apply to stay orders on Motions to Change, writing at paragraph 27: Different considerations apply, in my view however, where it is the party in default who seeks to change a final order in which the best interests of the child respecting custody and access have already been determined. The admonition against striking pleadings (or staying proceedings) may not carry the same force where it is the defaulting party who seeks to invoke the jurisdiction of the court to vary an existing final order respecting custody and access and the non-defaulting party simply seeks to have the final order upheld. Subrules 2(2) and (3) of the Family Law Rules directs Courts to deal with cases justly, including to ensure that the procedure is fair to all parties.
[33] In Dalechuku, supra, Justice Robert Spence relied on Pearce and also considered the merits of the case in deciding whether to stay the moving party’s Motion to Change.
[34] In determining these motions, the court must also consider the primary objective set out in rule 2 of the Family Law Rules to deal with cases justly.
[37] In C.L.B. v. A.J.N., the court set out conditions for the mother to lift a stay, including payment of outstanding costs, support and outstanding financial disclosure.
Analysis
[38] On January 7, 2020, the parties attended on a Case Conference of the father’s Motion to Change child support. The Motion to Change was stayed and in my endorsement I wrote at paragraph 5, The father acknowledges through his counsel that he has not served and filed an updated sworn financial statement in this proceeding (although he did serve and file one in a matter between him and the Family Responsibility Office) since at least 2016; he has not provided the mother with copies of his income tax returns and notices of assessment since 2016; he has not paid any amount towards 6 costs orders against him arising out of this proceeding and his appeal of this court’s order on the summary judgment motion totalling $49,347.58.”
[39] At paragraph 8 of the same endorsement, I wrote, “The mother cannot be required to continue to incur legal fees to prepare for and attend in court to defend the father’s claims in the face of the father’s blatant disregard for court orders and the rules regarding financial disclosure.”
[40] In staying the father’s Motion to Change, I ordered, “The court entertaining the request for leave to lift the stay shall consider the steps made by the father to come into compliance with outstanding court orders and the Family Law Rules regarding financial disclosure requirements within a Motion to Change child support.”
What has the father done to come into compliance with the court order and the legislation/Rules regarding financial disclosure since January 7, 2020?
[41] The only step the father has taken since his Motion to Change was stayed on January 7, 2020, to come into compliance with the court orders and the Rules is to prepare his 2017 to 2022 Income Tax Returns. His draft returns for 2020 to 2022 have now been provided to the mother. It is unclear if she has received the draft or filed returns for the years of 2017 to 2019.
[42] The list of what the father has not done since January 7, 2020 to come into compliance with the court orders and the legislation/Rules is much longer. They include the following: (a) He has not filed his 2020, 2021 or 2022 Income Tax Returns with the Canadian Revenue Agency. (b) He has not provided the mother with copies of his Income Tax Returns or Notices of Assessments for 2017, 2018 or 2019. It is unclear if they have even been filed with the CRA. (c) As a self employed person, he has not provided the mother with the financial disclosure required of him by the Child Support Guidelines. (d) As a parent who controls 3 corporations of which he holds 100% of the shares, he has not provided the mother with the financial disclosure required of him by the Child Support Guidelines.
[43] The above list of disclosure that has not been provided to the mother alone would provide a sufficient basis to deny the father’s motion to lift the stay. However, the father’s noncompliance with court orders is even more wide ranging then this list as he has also, (e) Not paid any amount towards costs owing to the mother in excess of $50,000.00. [^5] (f) Not complied with the court order to pay child support dated July 25, 2013, and has accumulated almost $60,000.00 in arrears of child support.
[44] One would expect a party seeking a discretionary order from the court would come with clean hands. In this case, the evidence does not support a finding that the father is coming to court with clean hands.
The father’s bankruptcy proceedings
[45] The father made an assignment in bankruptcy on March 10, 2020. On October 27, 2021, the discharge hearing was adjourned “sine die” at the request of the father’s solicitor. No steps at all have been taken, or at least none made known to the court by the father, since October 27, 2021 to complete the discharge hearing. The father says he is trying to obtain proof of payment of childcare receipts from the mother back to 2012. He says he needs these receipts to complete his Income Tax Returns as the receipts will impact the amount of his refund.
[46] The father’s request for childcare receipts is puzzling. On July 25, 2013, Justice Geraldine Waldman ordered the father to pay the mother $738.00 per month which represented 50% of the net cost of childcare per month. As the father was required to contribute towards the net cost of childcare incurred by the mother, meaning the actual after tax cost to her, he is not entitled to claim a tax deduction for this expense as that is solely the right of the mother which is why he contributes to the net cost as opposed to the gross cost.
[47] The father provides the court with absolutely no reasonable explanation for the delay in completing the bankruptcy discharge hearing by almost two years. He appears to be using the assignment in bankruptcy as a shield against paying the costs owed to the mother.
[48] Based on the material filed by the father, the court draws an adverse inference against him for his failure to complete the discharge hearing.
The merits of the father’s Motion to Change child support
[49] For the reasons set out below, I find that based on the evidence before the court the father’s motion to change appears to be very weak.
[50] The father claims that his income has decreased since the final order due to the degeneration of his hearing loss. The father has provided no medical evidence at all to support this claim. He also does not explain how this can be a basis for his claim of a material change in circumstances when his hearing loss began prior to the final order other than his hearing loss has worsened.
[51] The father had income imputed to him in 2013. At that time he earned some income from various sources including through his companies Snkrbox Inc., 3FT HIGH and BKE. On his financial statement sworn March 21, 2023, the father discloses that he earns $5500.00 gross per month in self-employment income through Snkrbox Inc. and that he still holds 100% of the shares of these three corporations. This begs the question, what has changed?
[52] Even more problematic for the father is that income had to be imputed to him in 2013 because Justice Geraldine Waldman found that “It is impossible, given the evidence, to actually determine the Respondent’s income beyond the information set out above.” At paragraph 74 of her judgment, Justice Waldman writes, “The Respondent has not met his obligation to provide full and frank financial disclosure. The Respondent was slow in providing financial disclosure, with some financial information provided ten days before trial. Even given this additional information, the financial information before the court is not complete. Important information which could have been available, including his corporate statements for 2012 and details of his income from EDO for 2013, for example, were not available to the court. The Respondent was unable to explain his financial dealings in cross examination.”
[53] In finding that the mother met her onus of providing an evidentiary basis for the court to impute income to the father, Justice Waldman wrote at paragraph 75 of her judgment that, “The evidence before the court supports the conclusion that the Respondent moves money through the three companies which he controls. He pays personal expenses out of these corporations. He has been less than frank about his current income.”
[54] The Financial Statement filed by the father in support of his request to lift the stay on his Motion to Change child support sworn March 21, 2023 raises many questions given his bankruptcy proceedings and his claim that there has been a material change in circumstances warranting a reduction in his child support payment. They include, (a) The father has a 99% interest [^6] in the house he resides in which he values at $1,050,000.00. He discloses mortgages totalling $788,415.00. (b) The father pays $5,942.53 each month in mortgage payments and states in his sworn financial statement that he is making these payments. (c) The father claims to have gross earnings from self-employment of $67,057.92 annually and $112,544.04 in annual expenses not including child support and fails to explain how he has met his shortfall for years. (d) On March 21, 2023 when the father swore his Financial Statement he had a total of $24,775.84 in his bank accounts, $58,203.90 in an RDSP and $10,170.96 in an RESP. How is it possible that he owes the mother $100,000.00 but holds over $92,000.00 in savings and savings plans? (e) The father has no outstanding credit card debts disclosed on his sworn Financial Statement. (f) The debt owed to the mother as a result of the costs order makes the mother the third largest creditor behind his family members and former lawyer. (g) The father’s sworn financial statement discloses no rental income but discloses that his parents, Rita and Sam live with him. In 2018, the father told the Assessment Review Board that his father, who lived with him, paid “board” of $2125.00 per month.
[55] The information contained in the father’s sworn Financial Statement discloses a lifestyle that has not been severely impacted by his assignment in bankruptcy. Nor does it disclose a person living on a modest income. The father is still making his mortgage payments and has been doing so consistently since at least 2016 according to the report of the Assessment Review Board; he spends $550.00 per month on groceries for himself and $150.00 in meals outside the home. He continues to contribute $250.00 per month to a RESP for the children.
[56] The father has not provided an explanation or any evidence to explain how he maintains his property and his lifestyle on a reduced income. He also provides no explanation, given his lifestyle why his child support payment history is abysmal. He appears to prefer his own needs to paying child support.
[57] The father has not obtained a discharge of his bankruptcy. He provides no reasonable explanation as to why nothing has been done to complete the discharge hearing in almost two years. The explanation of the need for receipts for childcare expenses is unacceptable and not a basis for delaying the bankruptcy proceedings and filing his Income Tax Returns with the CRA, especially if he wishes to bring a Motion to Change child support.
[58] As a result of the bankruptcy not being discharged, the debts the father owes the mother as a result of several costs orders have not been extinguished and continue to be legal debts owed to the mother. No explanation has been provided that adequately explains why nothing has been paid towards these costs orders in 5 years. As a result, in deciding the father’s request to lift the stay of his Motion to Change, as ordered on January 7, 2020, the court will draw a negative inference against the father for his nonpayment of the costs orders.
Other considerations
[59] I note from a review of the endorsement record on this file that on October 28, 2019, the father obtained an order from Justice Debra Paulseth refraining the Family Responsibility Office from suspending his drivers’ licence provided that he pay the ongoing child support of $1232.00 per month commencing December 1, 2019. A refraining order terminates six months after the date of the order.
[60] On December 1, 2019, according to the Statement of Arrears provided by the father, he owed total arrears of child support of $29,908.33. On May 1, 2020, the six month anniversary of the refraining order, the father owed total arrears of child support of $34,264.55. This begs the question; how did the father manage to accumulate more arrears of child support while he was subject to an order that if he did not pay the ongoing amount of the child support his driver’s licence would be suspended?
[61] The father did not advise the court that his driver’s licence was suspended due to his failure to pay the ongoing child support. In addition, the father’s financial statement sworn March 21, 2021 discloses a monthly expense of $19.78 for car insurance and license and that he owns a 2009 Audi A3. This means the father violated the terms of the refraining order without consequences.
[62] The father’s willingness to come before the court seeking relief while breaching numerous court orders is problematic. The father has managed to continuously ignore court orders without consequence. This must stop.
Conclusion
[63] The father’s litigation conduct has resulted in significant costs to the mother. On January 7, 2020, I said she cannot be required to continue to incur legal fees in the face of blatant disregard by the father of his obligations pursuant to previous court orders and the Rules. Since that date, nothing meaningful has been done by the father to cure these ills.
[64] The action of filing for bankruptcy in of itself does not extinguish the debts owed to the mother by the father as a result of costs orders. Despite this and the January 7, 2020 endorsement that requires the court to consider what efforts the father has made to pay the costs order before lifting the stay of his Motion to Change, he has not made a single payment towards the costs.
[65] The father asks the court to allow him to move to reduce his child support despite not having provided basic financial disclosure to the mother or making any payments towards the costs owing to the mother. While he owes the mother almost $60,000.00 in arrears of child support, he enjoys living in a house he estimates to be worth over $1,000,000.00 for which he is able to make monthly mortgage payments in excess of $5900.00.
[66] The father has not provided any persuasive evidence to support his claim that there has been a material change in circumstances since the final order of July 25, 2013, especially given the findings made by Justice Waldman who was forced to impute income to the father as a result of his failure to demonstrate what his income was for the purpose of child support. As a result, on the evidence before the court on this motion, the father has a very weak claim to a change on the merits.
[67] Allowing the father to proceed with his Motion to Change child support in these circumstances would be grossly unfair. The father has been allowed to maintain his standard of living while accumulating $100,000.00 of debt owed to the mother by failing to meet his child support obligation and ignoring multiple court orders to pay the mother costs.
[68] The father should not be able to proceed with his Motion to Change without complying with his financial disclosure obligations. It is truly stunning that he has brought this motion to lift the stay when he has not even provided the most basic financial disclosure including his last three years of personal and corporate Income Tax Returns and Notices of Assessment. One is not even permitted to issue a Motion to Change without attaching their last three years of Income Tax Returns and Notices of Assessments and proof of their current income to the service copy of their sworn Financial Statement. The father has not even done this and cannot be permitted to proceed with his Motion to Change.
[69] The Father’s failure to provide to comply with the Rules and the Child Support Guidelines regarding disclosure in addition to his failure to pay child support and several costs orders provides more than sufficient reason to refuse to lift the stay of his Motion to Change child support.
[70] Allowing the father’s request on this 14B Motion would not just be unjust it would be a travesty of justice. Based on the evidence he has provided to the court I am dismissing his motion to lift the stay of his Motion to Change child support.
[71] Should the father bring a further 14B Motion seeking to lift the stay of his Motion to Change, he will have to demonstrate that he has provided the disclosure required of him and made meaningful efforts to comply with the outstanding costs and child support orders.
[72] As part of a future 14B Motion seeking to lift the stay, the father should also set out for the Applicant exactly what relief he intends on seeking if the stay is lifted.
Order
[73] The Respondent’s request for an order lifting the stay of his Motion to Change child support ordered on January 7, 2020, is dismissed.
[74] Any future 14B Motion seeking an order lifting the stay shall set out in detail what financial disclosure has been provided to the Applicant and what efforts have been made by the father to comply with previous orders of the court requiring him to pay child support and costs.
[75] Any future 14B Motion seeking to lift the stay shall be served on the Applicant.
[76] If the Respondent does not seek to lift the stay of his Motion to Change within 90 days of this order, the Applicant may ask the court to dismiss the Motion to Change by 14B Motion served on the Respondent.
[77] If the Respondent brings a 14B Motion within the 90 days prescribed above and is not successful in having the stay of his Motion to Change lifted, the Motion to Change will be dismissed by the court at that time.
Dated this 28th day of September 2023
Justice M. Sager
Footnotes
[^1]: The mother says the costs order in the SCJ was made on consent. [^2]: According to the FRO statement of arrears provided by the father, in 2016, despite telling the Assessment Review Board he was paying $1979.00 per month in child support, he actually only paid a total of $1839.28 in child support in all of 2016 and that was paid by a federal diversion of monies from the father to the FRO. [^3]: This is not accurate as stated above, the stay was ordered due to the father’s failure to serve and file basic financial disclosure and pay outstanding costs orders. [^4]: The father blames the mother for not filing his Income Tax Returns as he claims she has not given him “nanny” receipts. [^5]: Additional costs were ordered against the father on January 7, 2020 totalling $2550.00 in addition to the $49,347.58 already owing due to previous orders of this court and the Superior Court of Justice. [^6]: The court questions who holds the other 1% as the father told the Assessment Board in 2018 that his father was a tenant in his home paid “board”.