CITATION: Prillo v. Homer, 2023 ONCJ 8
DATE: January 6, 2023
COURT FILE NO. D11608/17
ONTARIO COURT OF JUSTICE
B E T W E E N:
DESIREE ANN PRILLO
OLIVIA OPREA, for the APPLICANT
APPLICANT
- and -
MICHAEL HOMER
ACTING IN PERSON
RESPONDENT
HEARD: JANUARY 3, 2023
JUSTICE S.B. SHERR
ENDORSEMENT
Part One – Introduction
[1] The applicant (the mother) has brought a motion to strike the respondent’s (the father’s) Answer/Claim and to proceed with an uncontested hearing on the remaining issue in this case – child support for the parties’ six-year-old child (the child).
]2] In the alternative, the mother seeks temporary child support of $792 each month, based on an imputed annual income to the father of $85,000. This is the Child Support Guidelines (the guidelines) table amount for one child at this income. She asks that this order start on November 1, 2021.
[3] The father asked that the mother’s motion be dismissed. He submitted that he is willing to pay ongoing child support of $461 each month, based on an annual imputed income to him of $50,000.
[4] The father was represented by counsel in this case until he filed a Form 4 Notice of Change in Representation to act on his own behalf on November 15, 2022. The father was offered the assistance of duty counsel for this motion and declined.
[5] The issues on this motion are:
a) Should the court strike the father’s Answer/Claim?
b) If so, on what terms, if any, should the father be permitted to reinstate his Answer/Claim?
c) If the court strikes the father’s Answer/Claim, what rights of participation, if any, should he have at the hearing?
d) What amount should the father pay the mother for temporary child support?
e) When should temporary child support start?
Part Two – Brief background
[6] The mother is 42 years old. The father is 44 years old.
[7] The parties have the one child together.
[8] The parties are not married.
[9] The parties were in a relationship from 2014 until September 2017. The child has always resided with the mother.
[10] The father has six other children by three other mothers. He has three adult children, a child who is 13, for whom he pays court-ordered support, and two other children, ages 12 and 13, for whom he does not pay court-ordered support.
[11] The mother first issued a claim for custody and child support on October 3, 2017. She filed a Notice of Withdrawal of that application on October 17, 2017.
[12] On July 19, 2019, the mother of three of the father’s children started a case in this court (the Conway case) seeking parenting and child support orders. The case went to trial. On September 24, 2021, Justice Roselyn Zisman delivered an oral decision. She imputed the father’s annual income at $60,000 and ordered child support retroactive to July 1, 2016. She ordered the guidelines table amount for three children from July 1, 2016 until June 30, 2020; the table amount for two children until July 1, 2022, and the table amount for one child after July 1, 2022.
[13] In November 2021, the father sold a property in which he held an interest (the Clarington property) for $921,110. A statement of adjustments he produced indicates that the Family Responsibility Office was paid $24,542 from the sale proceeds. This was for the enforcement of his support arrears for the three children in the Conway case. The statement of adjustments also shows that the father received net proceeds from the sale of $50,000.
[14] The mother issued this application on December 7, 2021, seeking sole decision-making responsibility for the child and child support, retroactive to October 1, 2017.
[15] On May 6, 2022, the parties consented to an order for the mother to have decision-making responsibility for the child on a final basis. An order was also made for temporary parenting time for the father. On a temporary without prejudice basis and pending further financial disclosure, the father agreed to pay child support of $258 each month, starting on May 1, 2022, based on his stated annual income of $30,286. Child support was subject to adjustment both as to the amount and the start date.
[16] On July 8, 2022, the court made a temporary without prejudice order that the father pay child support of $447 each month, based on his stated 2021 income of $40,836. Again, this order was subject to adjustment both as to the amount and the start date.
[17] The court also ordered the father to provide the mother with a description of what his interest had been in the Clarington property, an accounting of the sale proceeds of that property and an explanation about how the proceeds were applied. The father was also ordered to provide his corporate tax returns for the years 2019 to 2021.
[18] On September 22, 2022, the father purchased an interest in another property (the Georgina property). The father deposed that he has an 11% interest in this property and, in submissions, advised the court that he paid $20,000 towards its purchase price.
[19] On October 11, 2022, the parties finalized all parenting issues.
[20] On October 12, 2022, the court ordered the father to comply with the July 8, 2022 disclosure order and to provide the mother, by November 23, 2022, with the closing documents and his mortgage application for the Georgina property.
Part Three – The motion to strike the father’s Answer/Claim
3.1 Legal considerations for striking an Answer/Claim
[21] 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.
[22] In family law cases, pleadings should only be struck, and trial participation denied, in exceptional circumstances and where no other remedy would suffice. See: Purcaru v. Purcaru, 2010 ONCA 92, at para. 47.
[23] The decision- making framework for addressing a breach of a financial disclosure order was set out in paragraphs 44 to 49 of Mullin v. Sherlock, 2018 ONCA 1063 as follows:
Decision-making Framework
[44] First, when faced with an allegation of failure to obey a disclosure order, before granting a remedy, the judge must be satisfied that there has been non-compliance with the court order.
[45] Second, once satisfied, a judge may have recourse to the alternatives described in Rule 1(8). In assessing the most appropriate remedy, a judge should consider the following factors:
the relevance of the non-disclosure, including its significance in hindering the resolution of issues in dispute;
the context and complexity of the issues in dispute, understanding that an uncomplicated case should have little tolerance for non-disclosure, whereas a case involving extensive valuation of assets may permit some reasonable delay in responsiveness;
the extensiveness of existing disclosure;
the seriousness of efforts made to disclose, and the explanations offered by a defaulting party for the inadequate or non-disclosure; and
any other relevant factors.
[46] Having considered these factors, the judge will then determine the best remedy. The orders identified in Rule 1(8) are not exclusive. Other approaches may be appropriate. For example, one option might be to invite the moving party to seek at trial an adverse inference from the failure to disclose and for the motion judge to memorialize this invitation in reasons for decision. Parties frequently rely on another option, namely a request for an adjournment to allow for more time to effect disclosure. Occasionally this may be appropriate especially in a complex case, but an adjournment should not be considered to be automatic. Fully compliant disclosure is the expectation, not the exception.
[47] If the judge decides to strike, as in the case under appeal, Rule 1(8.4) becomes applicable. As mentioned, this subsection provides that certain consequences apply unless a court orders otherwise. Accordingly, a party is not entitled to participate in a case in any way unless the court orders otherwise. This provision gives the judge the ability to frame the procedural consequences to a party in default. In making this determination, consideration should be given to whether the consequence is responsive to the breach and whether it achieves a just outcome.
[48] If the judge decides to strike, Rule 1(8)(c) does not refer to striking “pleadings”. Instead, it specifically distinguishes amongst striking out an application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party. Rule 1(8.4) addresses the consequences if an order is made striking an application, answer, motion to change or response to a motion to change. Ideally, when making an order under this subsection, the judge should specify what is being struck.
[49] The decisions to strike a document and to determine the parameters of trial participation are discretionary in nature, and as stated by Lang J.A. in Purcaru, at para. 50, are “entitled to deference on appeal when exercised on proper principles. The exercise of discretion will be upheld where the motion or trial judge fashions a remedy that is appropriate for the conduct at issue.”
[24] In Roberts v. Roberts, 2015 ONCA 450, the court stated that 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.
[25] Justice Robert Spence set out the following three-step process when determining whether to strike a pleading for a breach of an order (not just a financial disclosure order) in paragraph 64 of Ferguson v. Charlton, 2008 ONCJ 1:
[64] ... First, the court must ask whether there a triggering event that would allow it to consider the wording of either subrule 1(8) or subrule 14(23). That triggering event would be non-compliance with a court order “in the case or a related case” [subrule 1(8)] or an order “made on motion” [subrule 14(23)].
Second, if the triggering event exists, the court should then ask whether it is appropriate to exercise its discretion in favour of the non-complying party by not sanctioning that party under subrule 1(8), or by ordering that subrule 14 (23) does not apply. My review of the foregoing case law suggests that this discretion will only be granted in exceptional circumstances. In my view, the court’s decision whether or not to exercise its discretion in favour of a non-complying party, ought to take into account all relevant history in the course of the litigation and, more specifically, the conduct of the non-complying party.
Third, in the event that the court determines that it will not exercise its discretion in favour of the non-complying party, it is then left with a very broad discretion as to the appropriate remedy pursuant to the provisions of either subrule 1(8) or subrule 14(23).
[26] It would be superfluous to order that a party comply with an existing order. To order compliance does not add to or take away from the initial order. If there has been a breach, the appropriate step is to seek a remedy under subrule 1(8). See: Varcoe v. Varcoe, 2014 ONSC 328.
[27] In Costabile v. Costabile, 2005 44377 (OCA), the Ontario Court of Appeal found that a motions court’s decision to strike pleadings with the right to move to reinstate the pleadings on conditions was a sensible solution.
[28] In exercising its discretion under subrule 1 (8), the court should consider the primary purpose of the rules, set out in rule 2 – to deal with cases justly.
3.2 Positions of the parties
[29] The mother seeks an order striking the father’s Answer/Claim for the following reasons:
a) The father has not provided meaningful financial disclosure about his various businesses.
b) The father has only partially complied with financial disclosure orders. He has not provided his corporate tax returns or copies of his mortgage applications for the Clarington and Georgina properties. He did not provide an accounting of where the proceeds he received from the sale of the Clarington property were applied.
c) The father has made only one child support payment - $258 in July 2022.
[30] The father asks that the mother’s motion to strike his Answer/Claim be dismissed.
[31] The father submitted that:
a) He has been the sole owner of an incorporated microbrewery business for six years and is presently only making about $100 each week.
b) He is trying to start a cannabis business. He incorporated this business in 2021. He provided no records for this business.
c) He does odd painting jobs for friends.
d) He is a musician. His songs are played on the radio and he has performed in music videos. However, he said that his royalty cheques for this are nominal.
e) He is not making $50,000 each year as he deposed in his most recent financial statement. He said that he inflated his income “to look good”.
f) He has not filed corporate returns for his microbrewery business.
g) He does not keep records of his expenses.
h) The Family Responsibility Office is to blame for his non-payment of child support. He said that they collected monies from the sale of the Clarington property and he believed funds would be attributed to his support obligation for the child.
3.3 Analysis
[32] The father has breached court orders. He has not provided important financial disclosure ordered, as set out by the mother, and he has not complied with the court’s support orders. The father is $5,553 in arrears of the July 8, 2022 child support order. These are triggering events for the court to consider the remedies set out in subrule 1 (8).
[33] The court must determine if striking the father’s Answer/Claim is the appropriate remedy under subrule 1 (8). If the father had only breached the financial disclosure orders, the court would have considered the option of sending the matter to trial, drawing an adverse inference and determining temporary support and costs. However, the father’s breaches of the disclosure orders should not be looked at in isolation to achieve a just result. The father’s breach of the child support orders has been egregious. He was unable to justify this.
[34] The father stated his belief that the proceeds the Family Responsibility Office collected from the sale of the Clarington property ($24,542) would be applied to his support for the child. This was disingenuous. The father was aware that the Family Responsibility Office had placed a writ of execution on the Clarington property due to his default of support obligations in the Conway case. The proceeds from the Clarington property were disbursed to the Family Responsibility Office on December 7, 2021, long before a child support order was made in this case.
[35] The father is not a T4 employee. He is very aware that he had to pay the support ordered directly to the Family Responsibility Office. He chose not to.
[36] The father is not a neophyte in this court. He has been involved in child support litigation regarding his children since 2019. He is aware of his support and financial disclosure obligations.
[37] Instead of paying anything towards support, the father acknowledged that he put $20,000 towards purchasing an interest in the Georgina property in September 2022. He did this when he was already $3,765 in arrears of child support for the child. The father justified ignoring his support obligation by saying that he wanted a home for all his children to come to.
[38] The father had the ability to comply with the child support orders and deliberately breached them.
[39] In determining what is just, the court must also examine whether the father has acted in good faith. He has not.
[40] The father has not been transparent about his financial circumstances. He did not initially reveal that he had purchased an interest in the Georgina property in September 2022. The mother discovered this, as she also had to discover on her own that the father had a cannabis business.
[41] The father failed to provide an accounting for the $50,000 he received from the Clarington property, as ordered. The court only learned that he had put $20,000 towards the Georgina property in submissions.
[42] The father has provided no meaningful financial disclosure. He provided his annual notices of assessment. However, how he arrived at his annual income figures was not explained. He has not provided corporate tax returns or annual financial statements from his businesses. He has provided no bank records or credit card statements that would assist the court in making sense of his financial affairs.
[43] The father claimed that he has not filed corporate tax returns and has not kept accurate records. This is not acceptable. He has been in court since 2019 regarding his two child support cases. He has been represented by counsel. He knows his obligation to keep proper records.
[44] The father failed to provide his mortgage applications for the Clarington and Georgina properties. The court draws an adverse inference that those applications would have revealed a higher annual income than he has reported to this court. As the mother pointed out, how else would he have qualified for substantial mortgages on those properties?
[45] The court finds that the father’s non-compliance with the court orders is deliberate.
[46] The father’s conduct has been evasive and obstructive. He has deliberately caused the mother to incur significant legal fees while he has delayed the case, has not complied with disclosure orders and has not paid the support ordered. It was ironic that the father spent much of his submissions demonizing the mother and her counsel for persecuting him. He said, “I don’t know why I’m being attacked and treated like this”.
[47] The court has considered that the parenting issues have been resolved. It would have been more hesitant about striking the father’s Answer/Claim if those issues were still alive.
[48] The court also considered adjourning the motion to strike the Answer/Claim and just making a costs order to give the father another chance to comply with the court’s orders. However, the father’s disregard of the financial orders made to date and his deceptive conduct inform the court that this is not an appropriate remedy.
[49] The court finds that it would be unjust and contrary to the administration of justice to permit the father to continue to defy orders, while requiring the mother to further litigate the remaining support issues.
[50] It is time for the father to demonstrate to the court that he will respect court orders and is serious about proceeding with this case in good faith. He will be given the opportunity to do this as it always the court’s preference to have both parents participate.
[51] The court will follow the approach taken in Costabile, supra. It will strike the father’s Answer/Claim but will give him the opportunity to reinstate it upon the performance of conditions.
[52] The father will be given until February 28, 2023, to pay the present support arrears of $5,553, together with his February 1, 2023 support payment, to reinstate his Answer/Claim.[^1]
[53] The father shall also be required to serve and file the following disclosure by February 28, 2023 to reinstate his Answer/Claim.
a) Copies of his 2018 to 2021 corporate tax returns and evidence that he has filed them with Revenue Canada.
b) His mortgage applications for the Clarington and Georgina properties, specifically setting out the income he represented to the mortgagees that he was earning.
c) His complete 2021 income tax return, with all attachments and schedules.
d) An accounting of where the $50,000 he received from the Clarington property went to, including all documentation supporting this.
e) All of his personal and business bank statements since January 1, 2021.
[54] The father has until March 14, 2023 to bring a Form 14B motion, on notice to the mother, to reinstate his Answer/Claim. He will be required to prove that he has complied with the terms of this order for the court to reinstate it.
Part Four – The father’s participation at trial if his Answer/Claim is not reinstated
[55] Pursuant to subrule 1 (8.4), the court has discretion to determine to what extent the father may participate in this case, even when his Answer/Claim has been struck. The court can also set a date for an uncontested trial of the case.
[56] The court heard submissions from the parties about what rights of participation the father should have at the hearing if his Answer/Claim is struck.
[57] The mother’s position is that the father should only be permitted to make submissions at the hearing. The father seeks full participation.
[58] The court finds that it is just in these circumstances to permit the father to have limited rights of participation at the hearing. This will include the right to file financial disclosure and to make closing submissions. These rights of participation will be set out in more detail in the court order and will provide the court with evidence to make a more accurate determination of the father’s support obligations.
Part Five – Child support
5.1 Should a temporary support order be made?
[59] The final hearing of the support issues will be scheduled for March 31, 2023. If the father reinstates his Answer/Claim, that date will be treated as a settlement conference. If the case is not settled, it will likely be tried in the late spring or summer of 2023.
[60] For reasons that will be set out below, the present support order does not reflect the father’s actual ability to pay child support. It is appropriate to make a temporary support order at this time based on the evidence filed.
5.2 Legal considerations for imputing income
[61] Section 19 of the guidelines permits the court to impute income to a party as it considers appropriate.
[62] The jurisprudence for imputation of income sets out the following:
a) Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. See: Drygala v. Pauli 2002 41868 (ON CA), [2002] O.J. No. 3731(Ont. C.A.).
b) The Ontario Court of Appeal in Drygala v. Pauli set out the following three questions which should be answered by a court in considering a request to impute income:
(i) Is the party intentionally under-employed or unemployed?
(ii) If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs, the needs of the child or reasonable health needs?
(iii) If not, what income is appropriately imputed?
c) The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552. (Ont. C.A.). However, in Graham v. Bruto, 2008 ONCA 260, the court inferred that the failure of the payor to properly disclose would mitigate the obligation of the recipient to provide an evidentiary basis to impute income.
d) Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. See: Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719.
e) As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. See: Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi, 2000 22560 (ON SC), [2000] O.J. No. 453, (Ont. Fam. Ct.).
f) A self-employed person has the onus of clearly demonstrating the basis of his or her net income. This includes demonstrating that the deductions from gross income should be taken into account in the calculation of income for support purposes. See Whelan v. O’Connor, 2006 13554 (ON SC), [2006] O.J. No. 1660, (Ont. Fam. Ct.).
g) The court must, when considering the onus issue in imputation of income claims, be mindful of the fundamental principle that every party in a support case must disclose and adduce the evidence required to allow the other party and the court to undertake a proper assessment of their income for support purposes. Further to this principle, if a party identifies issues respecting the other party's income that could support an imputation of income argument during the course of the proceeding, the party whose income is in question cannot simply make bald assertions regarding their financial circumstances and hope that the other party will not uncover evidence to support an imputation of income claim. Rather, that party has a positive obligation to proactively disclose information and evidence in support of their position respecting their income, including why income should not be imputed to them. See: M.A.B. v. M.G.C., 2022 ONSC 7207.
h) Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them. See: Szitas v. Szitas, 2012 ONSC 1548; Woofenden v. Woofenden, 2018 ONSC 4583. The party must make full and complete financial disclosure to ensure that the information required to make a decision on the issue is before the court. See: Charron v. Carriere, 2016 ONSC 4719.
i) The court may impute income where it finds that a party has hidden or misrepresented relevant information respecting their income to the other party or to the authorities. This includes cases where the evidence indicates that a party earns cash income that they do not declare for income tax purposes. See: Kinsella v. Mills, 2020 ONSC 4785.
j) The court can also impute income where the evidence respecting income is not credible for any other reason. See: Heard v. Heard, 2014 ONCA 196 (C.A.), at paras. 33-35; Gostevskikh v. Gostevskikh, 2018 BCSC 1441 (S.C.); M.A.B. v. M.G.C., 2022 ONSC 7207.
k) The court must have regard to the payor’s capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living enjoyed during the parties’ relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson, 2006 26573 (ONCA).
l) A person’s lifestyle can provide the basis for imputing income. See: Aitken v. Aitken, [2003] O.J. No. 2780 (SCJ); Jonas v. Jonas, [2002] O.J. No. 2117 (SCJ); Price v. Reid, 2013 ONCJ 373.
5.3 The father’s income
[63] The mother seeks to impute the father’s annual income at $85,000 for temporary support purposes. The father is prepared to have his annual income imputed at $50,000, even though he says that he is not earning anywhere near that amount of money.
[64] The father’s evidence about his income was not reliable nor credible for the following reasons:
a) He failed to provide meaningful financial disclosure about his businesses to assess his income. There is no evidence about his revenue or expenses.
b) He claimed to be only making $100 each week from his microbrewery, without any supporting documentation. It makes little sense that he would still be running this business after six years if this was all that he was earning.
c) He did not disclose his two mortgage applications which would likely set out the annual income he represented earning to the mortgagees of his properties.
d) He has been secretive about his finances. The mother had to conduct investigations to learn about the Georgina property and his cannabis business.
e) He told the court that he misrepresented his income in his financial statement. He said that he inflated it to look good.
f) He claimed to be earning well under $50,000 annually. Yet, he also claimed that he is paying all the expenses (close to $47,000 annually) for the Georgina property and that he has further annual expenses of about $45,000 (and this does not include his alleged debt payments or the monthly $4,000 he claimed to be spending for school fees and supplies). He provided no explanation about how he affords these expenses. The logical inference is that he is earning much more than he claims.
[65] The father’s lack of meaningful financial disclosure makes it very difficult to assess his actual income.
[66] The court will impute the father’s annual income at $75,000 for the purpose of the temporary support calculation for the following reasons:
a) An adverse inference is drawn against him due to his failure to provide meaningful financial disclosure.
b) An adverse inference is drawn against him because he did not provide reliable or credible financial evidence to the court.
c) His annual income was assessed at $60,000 by Justice Zisman on September 24, 2021 after a trial. The court does not have the reasons for decision and is not bound by that determination. However, it does create some basis for determining the father’s present income.
d) He is leading a lifestyle consistent with someone earning this level of income. He is spending at least $90,000 annually, with no credible explanation of how he is financing these expenses.
e) He was earning sufficient income to purchase an interest in the Clarington and Georgina properties and to qualify for sizeable mortgages on both properties.
f) He indicated that he only has a grade 9 education. However, he is a resourceful businessman. He has run his microbrewery for six years. He started his cannabis business in 2021. He said that he has one outlet for the cannabis business (the mother said that he has two). He said that he occasionally does painting jobs. He used to operate a food kiosk. He sells crafts. He has had some success as a musician – his songs are played on the radio and he has performed in music videos.
g) He claimed in submissions that he is not working as hard as he could because he has been put under such stress by the two mothers of his children coming to court to seek support from him. He said, “I have other numbered companies I’m trying to create, but I don’t feel motivated to do anything else”. If the father is actually earning less income than the court is imputing to him, the court finds that he is capable of earning this amount.
h) He is not paying taxes on the actual amount of income he is earning. His income needs to be grossed up to reflect this. See: Sarafinchin v. Sarafinchin, 2000 22639 (ON SC), [2000] O.J. No. 2855 (SCJ).
[67] The father will have the opportunity to provide meaningful financial disclosure to give the court a basis to adjust this imputation of his income at trial. However, if he fails to provide such disclosure, he should expect that this will be the final amount of income imputed to him.
5.4 Start date for temporary support order
[68] The mother asks that the temporary support order start on November 1, 2021.
[69] The father asks that any new support order start on February 1, 2023.
[70] The father was served with the mother’s application on January 18, 2022.
[71] The court will start the temporary support order on January 1, 2022. Given the modest nature of her retroactive support request on this temporary motion, compared to what she will be seeking at trial (support retroactive to October 1, 2017), the court will conduct the holistic retroactive support analysis that is required, as set out in Colucci v. Colucci, 2021 SCC 24, at trial.
[72] The guidelines table amount for one child at an income of $75,000 is $700 each month.
[73] This order will result in the father being in support arrears of $8,842 (13 months @ $700 each month - $258 support paid).
Part Six – Conclusion
[74] An order shall go on the following terms:
a) The father’s Answer/Claim is struck pursuant to subrule 1 (8).
b) The father shall have until March 14, 2023 to move to reinstate his Answer/Claim by Form 14B, on notice to the mother. His Answer/Claim will only be reinstated if he has complied with the following conditions:
- He has served and filed by February 28, 2023:
i) Copies of his 2018 to 2021 corporate tax returns and evidence that he has filed them with Revenue Canada.
ii) His mortgage applications for the Clarington and Georgina properties, specifically setting out the income he represented to the mortgagees that he was earning.
iii) His complete 2021 income tax return, with all attachments and schedules.
iv) An accounting of where the $50,000 he received from the Clarington property went to, including all documentation supporting this.
v) All of his personal and business bank statements since January 1, 2021.
- And, he provides a statement from the Family Responsibility Office that after today, he paid it the following amounts by February 28, 2023:
i) $5,553 towards the child support arrears.
ii) $700 for his February 1, 2023 support payment.
c) If the father does not reinstate his Answer/Claim, a final hearing will be held on March 31, 2023, starting at 2:00 p.m. It shall be held by zoom and be scheduled for 90 minutes. The father shall be permitted to participate at that hearing as follows:
i) He may serve and file by February 21, 2023 an updated sworn financial statement, together with all attachments required by the rules.
ii) He will not be entitled to call further evidence at the hearing or cross-examine the mother or any of her witnesses.
iii) He may make closing submissions of up to 30 minutes on the evidence presented.
d) The mother shall serve and file by March 3, 2023 any affidavits that she intends to rely upon at the final hearing.
e) If the father reinstates his Answer/Claim, the March 31, 2023 appearance will be converted into a settlement conference, for one hour, by zoom. Settlement conference briefs are to be served and filed.
f) The father shall pay the mother temporary child support of $700 each month, starting on January 1, 2022. This is the guidelines table amount for one child, based on an imputed annual income to the father of $75,000.
g) A Support Deduction Order shall issue.
[75] The mother is entitled to her costs of this motion. She shall serve and file written costs submissions by January 20, 2023. The father will then have until February 3, 2023 to respond in writing. The costs submissions shall not exceed 3 pages, not including any offer to settle or bill of costs. The costs submissions should be delivered to the trial coordinator’s office on the second floor of the courthouse.
Released: January 6, 2023
_____________________ Justice S.B. Sherr
[^1] The father will not be required, as a precondition to reinstating his Answer/Claim, to pay the additional arrears that will be created by this order.