NEWMARKET
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Winston Segre, Applicant (Responding Party)
AND:
Maureen Segre, Respondent (Moving Party)
BEFORE: THE HON. MR. JUSTICE P.H. HOWDEN
COUNSEL:
E. Julien-Wilson counsel for the Applicant
Maureen Segre, Self-Represented
HEARD: August 28, 2013
ENDORSEMENT
[1]
Introduction
On May 6, 2010, the applicant father brought a motion to change a final child support order by terminating support for the parties’ children Nathan and Jason Segre effective March 31, 2007 and setting the amount of arrears at zero. The mother brings a motion before me to strike the father’s motion for failure to pay prior cost orders and support arrears.
2The final order sought to be changed by the father is that of Justice J.R. MacKinnon dated June 20, 2003, as amended, which set monthly child support from January 1, 1998 to January 1, 2003 and from then monthly until further order. It also ordered s. 7 expense arrears to be paid for the years 1998 to 2003 on a monthly basis. The order fixed arrears of child support as of April 30, 2003 at $16,385.56 and set the monthly amount to be paid on account of arrears. Nathan was born on January 6, 1984 and Jason on September 26, 1988. They are therefore now 29 and 25 years of age, yet the issue of enforcement (or not) of this order remains. Looking at the extent of the file, it does not appear to me to be for lack of trying by the mother that this proceeding and the issue of support arrears has never been determined, though her lack of the advice of counsel and her non-facility with legal rules has no doubt assisted to some extent in the non-resolution of this matter.
[3]
Background
The immediate context for this motion was set by the endorsement of Justice Gilmore who case-conferenced this motion. She wrote of the difficulties in resolving this matter and concluded that “This matter can only be resolved by way of a trial...” She went on to state the following:
Respondent (mother) says total costs of $6,000 are owing. Today the respondent has only provided proof of $3,000. She is to provide a copy of the order related to the other $3,000. If all proven costs orders are paid prior to the motion date the parties may proceed with a trial management conference on October 11, 2013 at 12:00 noon. If the costs are not paid by the motion date, the motions judge may consider re-scheduling the TMC, depending on the results of the motion.
[4]
Analysis
I do not consider myself bound on this motion by the comments of the case management judge. I must reach my own conclusions on the motion assigned to me. However, based on what I have heard from counsel for Mr. Segre and from Ms. Segre, the affidavit evidence on the motion, and the two orders that have been produced by the court staff for my perusal, I am satisfied that the father has failed to pay two sets of costs totalling $6,000 plus interest. The comments of the case management judge make sense in this context.
5I had told the father’s counsel that she would be able to see the draft order based on Justice Wood’s endorsement of April 15, 2002 and provide any comments that may be necessary. However I am amending that portion of the endorsement I made on reserving my decision to substitute for that term that the copies of both cost orders are to be sent to counsel for the father and to the mother together with my endorsement. The court has already issued the said order of Justice Wood and as the endorsement has no complications, comment from counsel is unnecessary.
6I have before me the issued order of Justice Wood dated April 15, 2002. That day, Justice Wood ordered the father Winston Segre to pay $3,000 to the mother forthwith as costs thrown away to April 15, 2002 on the motion to change of that time. Interest at 3% from the date of the order is also owing pursuant to that order.
7I also have before me the issued order of Justice MacKinnon of June 20, 2003, made after hearing evidence for 4 days that month. Paragraph 8 of the order requires Mr. Segre to pay $3,000 in costs to the respondent mother, and the order provides interest to run at 4.0 % per year on any payment in default. Paragraph 8 states that the $3,000 in costs were “payable through the Family Responsibility Office as a child support payment”. As I understand Ms. Julien-Wilson’s explanation, because this order for costs was said to be payable through the FRO as a child support payment, and some payments have been made through FRO since then, it could be said that some of the cost order could be viewed as having been paid. I simply do not agree that this is the case. The words added to the cost order were not meant to do anything more than assist in enforcement and accounting. There is no evidence before me that Mr. Segre has ever paid either cost order plus interest thereon. The only payments made since the order was made are on account of support arrears and according to the most recent FRO statement that was provided to me by the mother from 2011, substantial arrears were still owed by Mr. Segre as of then.
8Ms. Julien-Wilson stated that her client had put her in funds for the one cost order of $3,000 and that she would pay that to the mother that day (i.e. the day I heard the motion, August 28, 2013).
[9]
Disposition
As a result, on the motion before me, it is ordered that the applicant father shall pay to the respondent mother the costs that were ordered to be paid her on April 15, 2002 and on June 20, 2003, being a total of $6,000 plus the interest ordered on the two costs amounts. The amount owing on the April 15, 2002 order is $3,000 plus interest at 3% from that date, the total payable to October 11, 2013 being $4,034.75. The amount owing on the June 20, 2003 order to date is $3,000 plus interest at 4% which as of October 11, 2013 is $4,237.29. This money shall be paid to her before the date set for the Trial Management Conference, being October 11, 2013, with a corresponding decrease in the interest portion depending on when the costs were paid to her. The costs plus interest are to be paid direct to the mother and not through FRO pursuant to my order.
10If the total costs plus interest are not paid by the father by October 11, 2013, the motion to change of the father shall be struck in its entirety and no further motion may be brought by him until these costs orders are fully paid including interest. A date should be set in that case for a default proceeding to enforce the terms of the order of June 20, 2003 and set the arrears of child support owing to May 1, 2009 which is the date of termination of child support set on consent by order of June 8, 2011. However proceedings from there will be in the discretion of the judge presiding at the Trial Management Conference and any directions can be provided by the presiding judge for the default proceeding to proceed pursuant to Family Law Rules 26 (3) (f) and 30.
11I should add for the benefit of the mother that I agree with the comment of the case management judge on July 9, 2013. Insistence on strict enforcement of this kind of order - where no child has been dependant since 2006 and the parties’ separation was 23 years ago, the father has been delinquent for years in paying and is out of the jurisdiction - in an amount even approaching that suggested by the mother at one point of $123,064.87, is far beyond any kind of realistic approach to an end of this matter. Justice comes in many forms and in its own time and is not just measured in strict monetary terms.
HOWDEN J.
Date: September 4, 2013