Court File and Parties

DATE: March 11, 2024 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

AMENDED Endorsement Justice M. Sager

14B Motion in Chambers

Introduction

[1] On September 28, 2023, I released an endorsement dismissing the Respondent’s (father) 14B Motion seeking to lift the stay of his Motion to Change child support. The father was given an additional 90 days to bring a further 14B Motion with additional evidence in support of an order lifting the stay. If he failed to do so or if he was unsuccessful in having the stay lifted, his Motion to Change would be dismissed.

[2] On December 22, 2023, the father filed a further 14B Motion seeking an order lifting the stay of his Motion to Change and an affidavit in support of this relief sworn December 22, 2023.

[3] The parties agreed to an extension of time for the Applicant (mother) to respond to the father’s 14B Motion and her affidavit sworn February 24, 2024, in support of an order dismissing the father’s 14B Motion was filed with the court on February 27, 2024.

[4] The following is my decision on the father’s 14B Motion filed December 22, 2023.

The court’s endorsement and order dated September 28, 2023

[5] I do not intend to repeat my concerns and findings set out in the endorsement of September 28, 2023, but I will use it as a road map to determine if the father has addressed the court’s concerns regarding his proposed Motion to Change as set out in that endorsement.

Lack of evidence of a material change in circumstances

[6] My endorsement of September 28, 2023 provides that the father has not demonstrated a material change in circumstances since the date of the original child support order. He still earns income from the same corporations he operated at the date of trial. He was deaf and hard of hearing at the original trial of this matter and has failed to provide any medical evidence to support his claim that a further degeneration of his hearing has impacted his ability to obtain full time employment at the income level imputed to him by Justice Waldman.

[7] Even though the court rejected the father’s submission that findings by the Canada Revenue Agency and a Municipal Assessment Review Board support his claim of a significantly reduced income and therefore a material change in circumstances, these claims are repeated in his December 22, 2023 affidavit.

[8] In my September 28, 2023 endorsement, I did not accept that the father’s bankruptcy proceedings in of itself constitutes a material change in circumstances as he had not yet been discharged. The father provided no additional meaningful evidence about the status of his bankruptcy proceedings which, on September 28, 2023, I noted has been dormant for 2 years and that no discharge has been granted. The father provides no additional information about this issue in his affidavit sworn December 22, 2023, specifically no explanation as to why he has not yet received a discharge. This is a significant problem given that the father is relying on his bankruptcy proceedings as protection from having to pay the outstanding costs orders of this court and the Superior Court of Justice in the mother’s favour of more than $49,000.00.

Lack of full and frank financial disclosure by the father

[9] The original order of Justice Waldman dated July 27, 2013, was made in the face of incomplete financial disclosure by the father which resulted in income being imputed to him. The father’s failure to make full and frank financial disclosure continues to be a significant issue for the court and the mother more than 10 years later.

[10] In my September 28, 2023, endorsement I rejected the father’s claim that his Motion to Change was stayed because his former lawyer failed to serve and file an updated sworn Financial Statement. Rather, it was stayed not only due to his failure to serve an updated sworn Financial Statement but also because “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.”

[11] Despite clear instructions given by the court on January 7, 2020 and again on September 28, 2023, instead of curing the deficiencies noted, the father yet again claims in his December 22, 2023 affidavit that his former lawyer is to blame for his financial disclosure deficiencies.

[12] The father goes further than just blaming his former lawyer for not serving and filing an updated sworn financial statement on his behalf. He unnecessarily advises the court that he has filed a Human Rights claim against his former lawyer for “failure to accommodate me, as prescribed by the OHRC.”

[13] The father also saw fit to include in his evidence on this 14B Motion details of the numerous complaints he has against various institutional litigants and service providers including court services, the Children’s Aid Society of Toronto, the Family Responsibility Office and the Ministry of the Attorney General of their failures to accommodate him pursuant to the Human Rights Code of Ontario.

[14] Rather than providing the evidence specifically requested of the father to support lifting the stay of his Motion to Change child support, he provided two pages of irrelevant information about his various complaints and claims against third parties.

[15] The father deposes that he provided the mother with copies of Income Tax Returns for the years of 2008 to 2022 and corporate returns for the period of 2008 to 2020. The problem is that the Income Tax Returns for the years 2020-2022 have not been filed with the Canada Revenue Agency due to what the father describes as disputes with the mother over daycare payments.

[16] As a result of not filing his Income Tax Returns with Canada Revenue Agency, the father has also not provided the mother with copies of any Notices of Assessment for the years of 2020-2022.

[17] The father has not provided the mother with financial statements for his corporations beyond April 2020 for one company and not beyond 2011 and 2013 for two others.

[18] The mother says that while the father claims to have provided her with corporate income tax returns for his corporations, she has in fact not received returns, rather only the financial statements referred to above.

[19] Most of the disclosure the father claims to have provided the mother is historical, some even predating the trial of this matter. The mother requires financial disclosure from 2020 to date. Anything before that is of little use to her.

[20] The father has not provided the mother with any disclosure regarding his income for 2023 and 2024. He says in his affidavit that he is unsure what financial disclosure remains outstanding and that his lack of compliance with the Family Law Rules if any, is “a direct result of Undue Hardship or on the part of [previous] counsel”.

[21] This court rejects the father’s claims that his failure to comply with basic financial disclosure requirements is due to hardship or any of his previous counsel.

Additional outstanding relevant disclosure

[22] The father has not provided the mother with any evidence of his attempts to secure employment at the rate imputed to him by Justice Waldman.

[23] The father upgraded his education in 2015 but has not provided evidence of this or an updated resume to the Applicant along with his job search.

[24] As noted above, the father has not provided medical evidence to support his claim that his hearing loss has impacted his ability to maintain the level of income imputed to him by Justice Waldman in 2013.

Compliance with previous court orders

[25] When the father’s Motion to Change was originally stayed on January 7, 2020, I endorsed that “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 disclosure requirements within a Motion to Change child support.”

[26] With respect to the outstanding costs orders against the father of more than $49,000.00, he relies on his bankruptcy proceedings as evidence of “the steps” he has taken to come into compliance with outstanding court orders.

[27] The father fails to address in his affidavit sworn December 22, 2023 what efforts he has made to pay the six outstanding costs orders in the mother’s favour totalling $49,347.59, other than commencing bankruptcy proceedings over two years ago.

[28] The father fails to address in his affidavit sworn December 22, 2023 what efforts he has made to comply with the child support order and his reasons for his failure to comply with the payment terms of a refraining order made by Justice Debra Paulseth on October 28, 2019.

Additional evidentiary concerns noted by the court in the September 28, 2023 endorsement not addressed by the father in the current 14B Motion and his December 22, 2023 affidavit

[29] Paragraphs 49 to 62 of my endorsement dated September 28, 2023, provided a road map for the father to follow in terms of addressing the additional deficiencies in his last request to lift the stay of his Motion to Change. The following are concerns and deficiencies raised by the court in that endorsement that he did not address or did not adequately address in his affidavit sworn December 22, 2023:

(a) The father did not provide the mother with medical evidence to support his claim that his hearing loss has contributed to his inability to obtain employment.

(b) The father did not address the fact that he continues to earn income through the same three corporations from which he earned an income at the date of the original order. In fact, in a sworn Financial Statement from March 2023, the father discloses gross income from one corporation of $5500.00 a month. The court queried in the September 28, 2023 endorsement what has changed since the date of the original order given these facts. This question was not addressed by the father in his December 22, 2023 affidavit.

(c) The father provides no details of the source of his $5500.00 per month income as disclosed on his March 2023 sworn Financial Statement.

(d) The father did not address in his affidavit sworn December 22, 2023, how he is making monthly mortgage payments of $5942.53 on his alleged modest income.

(e) The father did not adequately address the court’s question as to how he has over $92,000.00 in savings and savings plans in March 2023 while owing the mother over $100,000.00 in child support arrears and outstanding costs orders.

(f) Given the father’s claims regarding his income and expenses, he did not address the court’s questions as to how is it that he has no credit card debts?

(g) The father did not address the court’s concern that the father disclosed rental income from his parents at a 2018 Assessment Review Board hearing in the amount of $2125.00 per month yet this amount was not disclosed on his March 2023 sworn Financial Statement.

(h) The father did not address the court’s question as to how he has maintained his lifestyle and specifically his house expenses on the modest income he claims to earn. In his affidavit sworn December 22, 2023, he deposes that since 2011 he has earned an average income of $29,424.31. This would not even cover his annual mortgage payments yet he has not explained this discrepancy despite being highlighted in my September 28, 2023 endorsement.

(i) No explanation was given by the father in his affidavit sworn December 22, 2023, for his failure to make any effort to comply with the child support order or pay any amount to the six outstanding costs orders.

Conclusion

[30] The father has made no effort to pay the outstanding costs orders or provide a reasonable explanation for his failure to do so since the endorsement of January 7, 2020. This is despite the fact that the endorsement provides that when asked to lift the stay in the future, the court shall consider what efforts the father has made to come into compliance with court orders. He has not made a single payment towards the outstanding costs orders which exceed $49,000.00.

[31] In paragraph 68 of my September 28, 2023 endorsement, I said it was “truly stunning” that the father brought the motion to lift the stay without having provided the most basic financial disclosure i.e. 3 years of Income Tax Returns and Notices Of Assessment. Even with this strong language, the father moves again to lift the stay without having filed his returns with the Canada Revenue Agency and obtaining Notices of Assessments for 2020-2022 and now 2023.

[32] At paragraph 71 of my endorsement dated September 28, 2023, I wrote that if the father brings a further motion to lift the stay he will have to demonstrate that he has provided the disclosure required of him and made meaningful efforts to comply with the outstanding court orders. He did not do that.

[33] The father’s affidavit in support of his 14B Motion to lift the stay of his Motion to Change is mostly irrelevant and unfocused. Most importantly, his affidavit fails to address the many deficiencies and issues detailed in my endorsement of September 28, 2023, that the court expected to be addressed. Therefore, his motion to lift the stay must be denied.

[34] In my decision of September 28, 2023, I ordered that if the father was not successful in lifting the stay of his Motion to Change within 90 days of that order, his Motion to Change will be dismissed.

Order to go as follows:

[35] The Respondent’s motion to lift the stay of his Motion to Change child support is dismissed.

[36] The Respondent’s Motion to Change child support issued on December 10, 2015, and found at Tab 1 of Volume 5 of the Continuing Record is dismissed.

[37] The Respondent must obtain leave of the court before commencing another Motion to Change.

[38] The Respondent may request leave to bring a Motion to Change by 14B Motion accompanied by an affidavit not more than 5 pages with 20 pages of exhibits. He shall not serve the 14B Motion on the mother unless and until ordered by the court. His Motion for leave must address all of the issues and concerns raised by the court in this endorsement and the endorsement of September 28, 2023.

[39] The Respondent shall not be permitted to bring a Motion to Change child support until he is in receipt of his personal income tax returns filed with Revenue Canada for the years of 2020 to 2023 and his Notices of Assessments for the same years as well as his corporate financial statements and filed income tax returns for the same years.

[40] If the parties cannot resolve the issue of costs, the mother shall have 30 days from today’s date to serve and file cost submissions in relation to the father’s two 14B Motions seeking to lift the stay of his Motion to Change child support. Her submissions shall not exceed 3 pages not including a Bill of Costs or Offers to Settle.

[41] The father shall have 20 days from the date of receipt of mother’s costs submissions to serve and file his response which shall not exceed 3 pages not including a Bill of Costs or Offers to Settle.

[42] Cost submissions shall be delivered directly to the Trial Coordinator.

Justice M. Sager