Endorsement

COURT FILE NO.: FS-11-369789-0001
DATE: 20120823

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LEE HADLEY, Applicant

AND:

THE FAMILY RESPONSIBILITY OFFICE, Respondent

BEFORE: Justice Spies

COUNSEL: Lee Hadley, Applicant in Person

W. Wong, for the Respondent

HEARD: August 21, 2012

ENDORSEMENT

[ 1 ] On July 10, 2012, Mr. Hadley consented to a refraining order granted by Justice Herman which provided that he pay ongoing support in the amount of $1,820 per month and an additional $200 per month on account of arrears commencing August 1, 2012. In addition Mr. Hadley undertook to obtain, within twenty days of the date of the refraining order, a court date for his motion to change the support order of Justice Czutrin dated December 15, 2011.

[ 2 ] Mr. Hadley did serve and file a motion to change returnable on September 27, 2012. He claims a change in circumstances, namely that he is unemployed and on employment insurance (“EI”). He would have known that however, when the order of Justice Czutrin was made as Mr. Hadley claims that his employment was terminated on September 30, 2011. He concluded a severance package on December 17, 2011 at which time he received the net sum of $33,949, just two days after the order of Czutrin J. He advises that he has been on EI since May 2012, receiving $1,940 per month.

[ 3 ] Mr. Hadley seeks an order that FRO refrain from suspending his driver’s licence and from any garnishment proceedings on his EI benefits. He claims that he did not understand the terms of the order of Justice Herman that he consented to. He has suggested that instead $400 per month be garnished from his EI benefits, rather than the $852 that FRO has garnished per month.

[ 4 ] I have jurisdiction pursuant to Rule 25(19)(b) to change an order that contains a mistake but that is not really Mr. Hadley’s position. He says that he did not understand what he was consenting to, and in particular that he had to pay any support at all provided he set a date for his motion to change. He clearly did appreciate the term of the order setting a deadline for filing his motion to change, and the other term of paying ongoing support commencing August 1 st is very clearly written at the bottom of the same page of the order. Given as I will come to, Mr. Hadley has not paid any support since the order of Czutrin J. was made, I have difficulty accepting his position. FRO however did not file a responding affidavit and I have no transcript of the proceeding before Justice Herman. In any event, given Mr. Hadley’s position, in my view this Rule does not apply. His remedy was to appeal this order if his position is as he asserts before this court.

[ 5 ] I do have authority pursuant to section 35(10) of the Family Responsibility and Support Arrears Enforcement Act, 1996 , to change the refraining order if there has been a material change in circumstances. There is no evidence of any material change in circumstances since the order of Justice Herman. Pursuant to section 20(6) of that Act, enforcement of a support deduction order is not affected by an order staying enforcement of a related support order unless the support order is also stayed. Mr. Hadley did not seek to stay the order of Czutrin J.

[ 6 ] I would not be inclined to stay the order of Czutrin J. or grant other relief in any event on the evidence before me. Mr. Hadley has admitted that he has made no payments of child support since the order of Justice Czutrin. There is no explanation for why support payments were not made from Mr. Hadley’s substantial severance payment.

[ 7 ] Mr. Hadley also submits that he has the children for more than 50% of the time but that is a matter for consideration on his motion to change.

[ 8 ] For these reasons, Mr. Hadley’s motion is dismissed. In the circumstances there will be no order as to costs.

[ 9 ] I understand from Ms. Wong, that Mr. Hadley can see an enforcement officer to attempt to negotiate a resolution of this matter. Mr. Hadley sent a letter to the FRO Legal Department, but that was not an effort to negotiate a resolution with an enforcement officer. I strongly encourage Mr. Hadley to arrange such a meeting as soon as possible. I trust that Ms. Wong will ensure that if he wishes to do so, that such a meeting will take place before August 31 st , when I understand FRO intends to take steps to suspend Mr. Hadley’s driver’s licence.

SPIES J.

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