SUPERIOR COURT OF JUSTICE — ONTARIO

COURT FILE NO.: FS-12-18099
DATE: 20121127

RE:

NANCY GYAN, Applicant/Respondent in the appeal

AND

GARTH BOBB, Respondent/Appellant in the appeal

BEFORE:
MESBUR J.

COUNSEL:
Murray Teitel, for the appellant
Lenard Kotylo, for the respondent in the appeal

HEARD:
November 26, 2012

ENDORSEMENT

Nature of the Appeal

[ 1 ] Garth Bobb appeals from a final child support order Brownstone J. made at the first case conference in proceedings in the Ontario Court of Justice. He attacks the order on a number of bases, including lack of jurisdiction, denial of natural justice lack of an evidentiary basis and lack of reasons.

Background Facts

[ 2 ] The parties are the parents of Daniel Gyan, born April 20, 1995. The applicant mother commenced proceedings in the Ontario Court of Justice on November 28, 2011, claiming child support for Daniel, including retroactive support.

[ 3 ] The respondent father answered the claim, and sought custody of Daniel, DNA testing to confirm his parentage, and retroactive and ·ongoing child support. At all relevant times in the proceedings in the OCJ, the father represented himself.· He drafted his answer and prepared his own financial statement.

[ 4 ] The parties attended for the first appearance in the·OCJ on January 30, 2012. On that day, they entered into a consent order that required father to produce, by March 16, 2012, the following documents:

a)

Current sworn financial statement;

b)

Copy of every personal income tax return for each of the three most recent tax years together with every notice of assessment and reassessment issued to him for those years and business statements verifying deductions;

c)

Mortgage application indicating income to support purchase of 9 King George’s Rd.;

d)

All bank statements and credit card statements since January 1, 2011;

e)

Letter from Israelite Nation Worldwide Ministry stating all remuneration received since January 1, 2011.

He also undertook to return the SIN, passport and health card of the child by February 15, 2012. The case was adjourned to April 16 for a further first appearance.

[ 5 ] Father produced a financial statement. He apparently served a copy of his 2011 income tax return, but no others. He produced copies of his notices of assessment for the three prior taxation years. He did not produce business statements or his mortgage application. He did not return the documents he had undertaken to return.

[ 6 ] On April 16, 2012, the parties were back in court. The endorsement from that date indicates the appearance was for a case conference as opposed to a first appearance. The endorsement notes the production order from the previous appearance had not been complied with. The case was adjourned to May 16, 2012 for a case conference.

[ 7 ] On May 16, 2012, the parties appeared before Brownstone J. for the case conference. Father had still not fully complied with the disclosure order. In particular, he had not returned the child’s documents, nor had he produced his mortgage application. He acknowledged to the court he had agreed to do so, understood what he was supposed to do and had not produced it. In response to court’s question of where the document was, he responded “I can attempt to get it if I am given a reasonable time . . .” The court responded: “You were given January to May to get it sir. That wasn’t a reasonable time?” Father responded that it was, “but . . .” Eventually, the court determined that father’s explanations for failure to comply were not acceptable. The court declined to give father additional time to obtain the documents he had been ordered to produce.

[ 8 ] In the mother’s case conference brief, she had asked the court to make various orders at the case conference. These were enumerated in paragraph 13 as:

a)

Temporary or Final Order granting the Applicant Mother custody of the child;

b)

Temporary or Final Order that the Respondent Father pays back the Child Tax Credits and Disability Tax Credits for the 21-month period which was received by the Respondent Father while the child lived with the Applicant Mother;

c)

On a temporary without prejudice basis, commencing April 1, 2012, the Respondent Father pays to the Applicant Mother child support in accordance with the Child Support Guidelines in the amount of $330.00 for the child based on Respondent father’s annual income of $21,751.00;

d)

On a temporary without prejudice basis, for period commencing July 21, 2009, the Respondent Father pays to the Applicant Mother retroactive child support in accordance with the Child Support Guidelines in the amount of $8,488.00;

e)

An order that the Respondent father provides all the disc1osures listed and itemized in paragraph 17 below.

[ 9 ] In paragraph 12 of her case conference memorandum, the mother set out her proposal to resolve issues. These included having father pay child support based on his correct current annual income, and imputing an income of at least $100,000 to him.

[ 10 ] Father’s financial statement showed that he had annual income of $11,250, but had monthly expenses of $13,367. It also disclosed he owns two properties, one worth $880,000 and the other worth $750,000. His other assets I comprise a 2007 Mercedes Benz SUV which he values .at $60,000 and an iPad and laptop. He values all his property at $1,666,000.

[ 11 ] In the section on debts, father shows only a Home Trust mortgage in the amount of $704.000, a loan from Michael Wood in the amount of $160,000 and debt to the TD Bank of $550,000. He swears the monthly payments to Home Trust are $2,800, to Michael Wood are $1,800 and to TD Bank are $1,900. All payments are apparently being made. The only other debt father discloses is just over $1,000 to MasterCard.

[ 12 ] At the case conference, the court made a final order on the following terms:

a)

Requiring father to pay monthly child support of $1,330.99 commencing December 1, 2011, based on father’s attributed income of $160,404;

b)

Requiring father to pay monthly child support of $1,339.99 commencing January 1, 2012, based on the same income figure;

c)

Declining to make a custody order, given the child’s age of seventeen;

d)

Prohibiting the father from commencing any motion to change until he had fully complied with the disclosure order of January 30, 2012; and

e)

Permitting the mother to obtain the child’s SIN, OHIP card and passport without father’s consent.

[ 13 ] In coming to its conclusion about father’s income, the court noted:

You have indicated that you spend $160,404 a year, those are your expenses. Tell us what your income is to support those expenses and show us the proof.

[ 14 ] The father responded:

Sir, since November of 2010, my income has been zero. My wife works and takes care of all the bills. I am a minister . . . So I would like, on an interim basis, without prejudice, to impute $150.00 per month . . . based on the fact that I have zero income but I would at least like to be imputed minimum wage.

[ 15 ] The court responded:

Even though you spend $160,000 a year, you want to be imputed minimum wage? Where do you get $160,000 per year to spend that you have set out in the financial statement . . . that’s what you spend, obviously you have that money to be able to spent it. Why would I treat you as somebody who earns minimum wage when you spend $160,000 a year to live . . . Well where do you get the $160,000, sir?

[ 16 ] Father Indicated that it was his “family’s income”.

[ 17 ] The court went on to say:

There will be a final order. I am satisfied that the true reflection of the respondent’s income is his financial statement which demonstrates that he spends $160,404 a year, Clearly, he has access to that much money. That would be after-tax money. I should be grossing this up to about $190,000 to take into account that, after tax, he would have $160,000 to spend, but given the explanations I received about where this money is coming from, I am not prepared to do that and the support will be assessed at the amount, based on, to reflect the amount that he actually spent.· He will be attributed an income of $160,404. Furthermore, the respondent will not be permitted to commence any proceedings to change this support order until he has fully complied with the disclosure order dated January 30th 2012. I have made an order based on your own financial statement, it was evidence that you provided . . . I based it just on your own financial statement . . . the amount you spend was .accepted as your income. . . . If you are spending that, then you have obviously got that money to spend and I accepted that that’s your income . . .

[ 18 ] The court also rejected the mother’s claims for retroactive support and for contribution to section 7 expenses.

Discussion

[ 19 ] Father says the court had no jurisdiction to make a final order at the case conference. I disagree. First, the father was in default of a disclosure order. Rule 13(17)( e ) of the Family Law Rules permits the court to make “any other appropriate .order” if a party has not obeyed an order to give information. This is in addition to the court’s ability to dismiss the party’s case, strike out any document filed by the party, make a contempt order, or prohibit the party from later relying on any information that should have been produced.

[ 20 ] Second, although I recognize that the import of the Family Law Rules is to have a case conference as a first step in a proceeding, and a condition precedent to bringing a motion except in cases of urgency, the Family Law Rules contemplate orders being made at a case conference in certain circumstances. Rule 17(8) outlines the orders that can be made at a case conference.

[ 21 ] In addition to making disclosure orders and various procedural orders, rule 17(8)( b.1 ) permits the court at a case conference to make a final order or any temporary order if notice has been served. Here, the mother clearly gave notice that she was seeking specific orders at the case conference.

[ 22 ] Father urges me to find that rule 17(8)( b.1 ) limits the orders that can be made to orders to “facilitate the preservation of the rights of the parties until a further agreement or order can be made.” He takes this position on the basis of the new wording of this rule that enumerates various temporary preservation orders that can be made and that are included in the term “temporary order” He points to the earlier iteration of the rule that simply stated: “if notice has been served, make a temporary or final order”. [1]

[ 23 ] I do not see it this way. Looking at the plain wording of the rule, it contemplates both final and temporary orders. The enumerated orders listed set out a subset of temporary orders that are Included in the court’s powers on a case conference. They do not refer to final orders. I see no limitation on the court’s ability to make a final order if notice has been served.

[ 24 ] What then of the notice? The mother did not seek a final order for child support. In my view, the case conference brief in paragraph 13 sets out the particulars of the orders sought at the conference. The brief can act as notice of what orders are requested. Here, therefore, when it came to the issue of child support, the mother was only seeking a temporary without prejudice order of $330 per month. When the court made a final order far in excess of what was sought it exceeded its jurisdiction to make an order in the circumstances of this case.

[ 25 ] In my view, the only orders that were open to the court to make at the case conference were those enumerated in paragraph 13 of the mother’s case conference memorandum, outlined in paragraph 8 above. These are the only orders the father had notice the mother was seeking.

[ 26 ] On the basis of the information before him at the case conference and in light of the orders the mother was seeking, the only order the court should have made was the one sought — namely, a temporary without prejudice order for child support in the amount of $330 per month based on father’s income of $21,751. There was ample evidence before the court to support such an order.

[ 27 ] As to the father’s claim that he was denied natural justice and the order was tantamount to his pleadings being struck, on the basis of my decision on the jurisdictional issue, I need not address this ground of appeal. The father will have .the opportunity to present his case fully when the case is tried.

[ 28 ] Similarly, when it comes to father’s arguments of a lack of an evidentiary basis or lack of reasons, I need not deal with these either, in light of my decision on the jurisdictional issue. In any case, the court gave cogent reasons for its decision and pointed to the evidence on which it came to its decision. It simply exceeded its jurisdiction in coming to the conclusion it did. It may well be that on a motion or trial with a full evidentiary record, the court will come to exactly the same conclusion. It will, however, be a decision on a full evidentiary record.

Disposition

[ 29 ] For all these reasons, an order will therefore issue setting aside the final order of Brownstone J. dated May 16, 2012 and replacing it with a temporary order in the following terms:

a)

On a without prejudice basis, commencing April 1, 2012, father will pay mother child support in the amount of $330 per month based on father’s annual income of $21,751.00;

b)

Mother is free to move in the OCJ for a temporary order for child support in an amount based on greater imputed income for the father, or, alternatively, to set the application down for trial so the issues can be adjudicated on a final basis;

c)

Support deduction order to issue.

d)

Father to comply fully with the order of January 30, 2012 within fourteen days, failing which mother is free to move in the OCJ for an order striking his answer and for an undefended trial.

[ 30 ] While the father has enjoyed some success on this appeal, the primary reason for the decision below was the father’s own failure to comply with all the terms of the disclosure order and his failure to fully explain his financial statement. I liken his appeal in many respects to a motion to set aside a default judgment. In cases such as that, the moving party generally pays costs rather than receives them. Here, my inclination would be to make no order as to costs. I understand, however, that there are offers that might bear on the issue of costs.

[ 31 ] Therefore, if either party wishes to make submissions on costs, they will do so within one week of the release of this order. They will include each lawyer’s year of call, actual billing rate to his client, and copies of any offers that might bear on the issue of costs.

MESBUR J.

Released: 20121127

[1] . Rule 17(8)( b ) of the Family Law Rules in force between March 2, 2010 and August 31, 2011.