CITATION: Soengkono v. Legal Services - Family Responsibility Office, 2013 ONSC 3105
COURT FILE NO.: FS-03-014286-0002
DATE: 2013-05-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Mintarja Song Yung Ren Soengkono
Célia Jutras for Tracey Nieckarz, for the Applicant
Applicant
- and -
Legal Services – Family Responsibility Office
Samantha Filipovic, for the Respondent
Respondent
HEARD: May 23, 2013, at Thunder Bay, Ontario
Mr. Justice D. C. Shaw
Decision On Motion
[1] The applicant, Mr. Soengkono, brings a motion in this court with respect to an order of the Supreme Court of Nova Scotia, dated April 3, 1995, made under the Divorce Act, which requires him to pay to the respondent, Ms. Bailey, support for the child of the marriage, Alexandra A. Soengkono, born June 1, 1989, in the sum of $800.00 per month, commencing December 15, 1994.
[2] Mr. Soengkono resides in Thunder Bay. Ms. Bailey resides in Nova Scotia.
[3] The Nova Scotia order is being enforced in Ontario by the Family Responsibility Office (FRO).
[4] Mr. Soengkono received a First Notice to Suspend Driver’s License, dated April 25, 2013, from FRO, advising him that its records showed that he owed $31,400.00 in unpaid support and that the Registrar or Motor Vehicles would be directed immediately after June 1, 2013 to suspend his driver’s licence.
[5] FRO has also filed a writ of execution against Mr. Soengkono’s home.
[6] Mr. Soengkono is self-employed as the sole proprietor of a Tai Kwan Do school.
[7] Mr. Soengkono brings this motion for the following relief:
a) an order that the Director of FRO refrain from directing the suspension of his driver’s license;
b) an order suspending the support deduction order herein; and
c) an order for stay of enforcement of arrears of support.
[8] Mr. Soengkono has not served Ms. Bailey with the motion documents. He intends to bring a motion in Nova Scotia to vary the support order and has given an undertaking to this court, through his counsel, to do so within 20 days. FRO has been served with the motion and appeared on the hearing of the motion. Counsel for FRO takes the position that although service on Ms. Bailey is not necessary with respect to the request for a refraining order, this court should not make any order at this time for the other relief claimed by Mr. Soengkono because Ms. Bailey has not been served and therefore has not had an opportunity to answer the allegations of Mr. Soengkono. Counsel for FRO did not consent to the granting of a refraining order.
[9] In his motion material, Mr. Soengkono includes correspondence exchanged in late 2010 between his solicitor, Ms. Nieckarz of Thunder Bay, and Ms. Bailey’s solicitor, Mr. Cameron Q.C. of Bridgetown, Nova Scotia. By letter of September 27, 2010, Ms Nieckarz wrote, in part:
“Mr. Soengkono advises that he has been in contact with Alexandra and Ms. Bailey with respect to the above noted matter. Our clients have agreed that Mr. Soengkono will provide additional payments in the amount of $775.00 per month from August 15, 2010 to December 15, 2010 to assist Alexandra with her expenses. My client’s understanding is that payments are being made on the basis of a final settlement of all issues between the parties.”
[10] Mr. Cameron replied to Ms. Nieckarz by letter dated November 25, 2010:
“Further to your correspondence I wish to confirm that matters between Mr. Soengkono and Ms. Bailey have been resolved. The thrust of the settlement is that the final payment of maintenance will be made December 15, 2010, whereupon any future maintenance obligations on the part of Mr. Soengkono will end”
[11] Ms. Nieckarz wrote back to Mr. Cameron on November 30, 2010:
“Thank you for your letter dated November 25, 2010. We confirm all issues (including but not limited to the retroactive adjustment for support and income tax purposes) with respect to the support of Alexandra as between the parties are resolved on the basis of the payments set out in our letter of September 27th.”
[12] In his motion materials, Mr. Soengkono includes, among copies of cheques and bank statements for 2008, 2009 and 2010, a cheque payable to Ms. Bailey in the amount of $1,550.00, dated December 15, 2010.
[13] No order terminating child support was taken out.
[14] The motion materials include a letter from Ms. Bailey to Ms. Nieckarz dated August 7, 2012, where Ms. Bailey writes that “Since the time of the agreement in 2010 Alexandra’s circumstances have changed drastically.” Ms. Bailey describes certain unfortunate events and indicates that after April 2011, with the exception of a short period from August to October 2011, Alexandra was unable to return to school, that she had been working at a horse training facility since April 2012, and that she hoped to return to school in the Fall.
[15] In December 2012, Ms. Bailey wrote to Ms. Nieckarz saying she had decided not to pursue her case with the Maintenance Enforcement Program (“MEP”) in Nova Scotia and that she would like to withdraw her case from the program. She sent Ms. Nieckarz a copy of her e-mail of December 11, 2012 to MEP, in which she advised MEP that she would like to withdraw her case. Her e-mail to MEP also included the information that Alexandra had returned home and was now going to Acadia University. The email also states:
“We have had a change of heart because Alex wants to reconnect with her father and he has responded that he will go to court and cancel the Agreement and I will be left with the costs he will incur.”
[16] Subsequently, the solicitors for Mr. Soengkono were advised by MEP by telephone in April 2013 that although Ms. Bailey had requested to withdraw from enforcement, MEP had denied the request because the language in Ms. Bailey’s e-mail of December 11, 2012 indicated that Ms. Bailey was under pressure to withdraw because of the risk of incurring court costs.
[17] Mr. Soengkono deposes that he shares parenting of his son, age 9, from another relationship. He deposes that he requires his driver’s licence to pick up and drop off his son. He states that he also requires his licence to attend to his business which is his sole source of income.
[18] Mr. Soengkono deposes that his financial circumstances have been difficult for several years. He provides support to his parents in Malaysia. His mother has recently been hospitalized because of a stroke. He states that he sends a sum of $1,000.00 per month to pay for her care.
[19] Mr. Soengkono has filed a sworn Financial Statement which shows annual income of $82,774.92 and annual expenses of $101,083.44. He shows assets, including his home, of $338,989.00 and debts, including a mortgage on his home of $194,080.98 and credit card debt exceeding $60,000.00, totalling $328,999.33. He deposes that in March 2013, he attempted to consolidate his debts by refinancing his home, but was unable to do so because of the writ of execution filed by FRO.
Refraining Order
[20] Section 35 (5) of the Family Responsibility and Support Arrears Enforcement Act (“the Act”), provides that a motion for an order to refrain shall be made in the court that has the jurisdiction to change the support order. Section 35(6)(b) provides that in the case of a support order that was made outside Ontario, the Superior Court of Justice has jurisdiction to change the support order if the support order was made under the Divorce Act. This court therefore has jurisdiction to grant a refraining order with respect to the support order in question granted by the Supreme Court of Nova Scotia.
[21] At the conclusion of the hearing of the motion on May 23, 2012, I made a refraining order in accordance with the prescribed form, conditional upon the undertaking of counsel for Mr. Soengkono to obtain within 20 days a court date in the Supreme Court of Nova Scotia to change the support order.
[22] I was satisfied that Mr. Soengkono had established a prima facie case warranting this relief, mindful that Ms. Bailey, who is not a party to the refraining motion, has not filed responding material. I was particularly influenced by the exchange of correspondence between the parties’ respective lawyers in late 2010. It appears clear from that correspondence that both counsel were satisfied, on instructions from their clients, that child support under the order of April 3, 1995, including any arrears, had been resolved and that child support was to terminate upon Mr. Soengkono final payment in December 2010. The cheque of December 15, 2010, appears to show that the final payment contemplated by counsel was made by Mr. Soengkono.
[23] It may be, as indicated in Ms. Bailey’s letter of August 7, 2012, that Alexandra’s circumstances have changed drastically since 2010 and that a court hearing a motion to change will have to take such changes into consideration. However, that does not alter the fact that as of the end of 2010, the parties had agreed through their counsel that there were no arrears of support and that no further support was to be payable.
[24] If a refraining order was not granted, Mr. Soengkono’s driver’s licence would be suspended. This would have consequences with respect to his relationship with his son and with respect to his business on which he relies for his income.
[25] The photocopies of support cheques which Mr. Soengkono has produced in his motion materials for the years 2009 and 2010 are, prima facie, indicative of regular payments of support, albeit in monthly amounts which are $25.00 less than the monthly $800.00 support required under the order. Mr. Soengkono deposes that the parties had agreed to this reduced amount, which appears to be supported by the letters between solicitors and the final cheque of December 2010.
[26] Evidence of these payments goes to the issue of whether Mr. Soengkono comes to court with clean hands.
[27] In this regard, there is no indication at this stage of proceedings that he has misrepresented his financial assets and liabilities or his income.
Stay of Enforcement and Stay of Support Order
[28] He has filed a sworn Financial Statement, together with three years of income tax returns, including his 2012 return. The returns contain a Statement of Business or Professional Activities, relating to his sole proprietorship.
[29] With respect to the remaining claims for relief, section 20(6) of the Act provides,
20(6) The operation or enforcement of a support deduction order is not affected by an order staying the enforcement of the related support order unless the support order is also stayed.
[30] Therefore, the request for stay of enforcement cannot be granted without an order staying the support order.
[31] The issue of whether the support order should be stayed is an issue on which Ms. Bailey is entitled to be heard. She is properly a party to that part of the proceedings. She has not been served with the motion material requesting that order.
[32] In effect, Mr. Soengkono is asking the court to proceed with this aspect of the motion as a motion without notice. In looking to the Family Law Rules for guidance, Rule 14(12) provides that a motion may be made without notice if, among other things, the nature or circumstances of the motion make notice unnecessary or not reasonably possible or service of the motion would probably have serious consequences.
[33] There is no evidence that notice to Ms. Bailey was not reasonably possible or that service on her would probably have serious consequences.
[34] On the motion for a refraining order, where it was appropriate to proceed on the uncontroverted evidence of Mr. Soengkono, without notice to Ms. Bailey who is not a party to that proceeding, I have made findings of a prima facie case, that Mr. Soengkono comes with clean hands and that he has demonstrated hardship if his licence was to be suspended. However, Ms. Bailey should have the opportunity to present her position before such findings are made on the motion to stay the support order, which is a motion to which she is a party. She should, as a party, be given notice of the motion.
[35] Counsel agreed at the hearing of the motion that whatever my decision, the matter should return to court on July 11, 2013.
[36] The refraining order requested has been granted. The motion to stay enforcement and to suspend the support deduction order is adjourned to July 11, 2013, at 10:00 am.
[37] Mr. Soengkono shall forthwith serve Ms. Bailey with the notice of motion and supporting materials.
[38] There shall be no order as to the costs of the hearing on May 23, 2012. This is without prejudice to the position of Mr. Soengkono to argue for inclusion of the costs of the preparation of his motion materials when costs are determined on the disposition of the motion to stay enforcement and to stay the support order.
The Hon. Mr. Justice D. C. Shaw
Released: May 27, 2013
CITATION: Soengkono v. Legal Services Family Responsibility Office, 2013 ONSC 3105
COURT FILE NO.: FS-03-014286-0002
DATE: 2013-05-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Mintarja Song Yung Ren Soengkono
Applicant
- and –
Legal Services – Family Responsibility Office
Respondent
DECISION ON MOTION
Shaw J.
Released: May 27, 2013
/mrm