SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-12-18169
DATE: 20130107

RE: Maxine Margarita Francis, Applicant

AND:

Dean Anthony Biggs, Respondent

BEFORE: Czutrin J.

COUNSEL:
Applicant - In Person

Devinder Bath, for the Respondent

HEARD: December 18, 2012

ENDORSEMENT

[1] The Respondent father (moving party) brought a Motion to Change Justice Rogers’ August 8, 2006 child support order. He also sought a change to the parenting arrangement.

[2] The father’s request to change the parenting arrangement is adjourned without return date on seven days’ notice to allow the parents to participate in counseling that the mother has arranged to include the child, both parents and the father’s spouse. In the event that the issue is returned, given the age of the child, her voice needs to be heard and involvement of the Ontario Children’s Lawyer (“OCL”) will need to be considered.

[3] Rather than dismiss the Respondent father’s Motion to Change Justice Rogers’ order, I heard the motion on its merits. That order required the father to pay child support for Makaydah Francis Biggs (born March 5, 1996) of $462 per month commencing August 8, 2006. The order also required the father to pay $242.50 per month on account of special expenses totaling $4,497 per annum (of which $3,560 was daycare), as requested by the Applicant mother.

[4] Justice Rogers’ order was made on an uncontested basis, as the father did not file an Answer. She imputed $50,000 income to the Respondent father. The father now claims that he was either never served with the original Application or that if he was served, he was served by the mother and such service is contrary to Family Law Rule 6 (4.1).

The father’s address

[5] The Respondent father’s business address was shown to be 7487 Netherwood Road. This address appeared on court documents in 2006, and according to the Equifax report produced, was also shown as his last address, prior to the present address of the home he shares with his current partner.

[6] On March 13, 2008, at the request of FRO, an order was granted for substituted service on the father so that he could be served by ordinary mail at the same address as in 2006 (the abovementioned Netherwood address).

[7] On September 6, 2010, the father signed an undertaking to appear in court. The undertaking again shows his address as the 7487 Netherwood address.

[8] By the spring of 2008, default proceedings were commenced by the Family Responsibility Office (“FRO”). On March 13, 2008, at the request of FRO, an order was granted for substituted service on the father so that he could be served by ordinary mail at his Netherwood address.

[9] On June 25, 2008, as part of the Enforcement Process, there was a warrant issued, as the father did not attend.

[10] On October 8, 2008, the father appeared with counsel on the default process that continued in Newmarket, Superior Court, Family Court. An order was made requiring the father to serve a Motion to Change by November 19, 2008, and to produce the following: personal and business account statements for 2005 to present; personal and business credit card statements for 2005 to present; business loans, credit on mortgage applications for 2005 to present; and, a copy of his deed and mortgage. This was but the first of the timelines imposed by the court on the father. I see only a 2005 Notice of Assessment and cannot determine when he started his business, Glass Mechanic, the employment listed on his mortgage co-application on June 8, 2009. He has not satisfied me by evidence as to his income while he was self-employed and in partnership with his father. The onus was on the Respondent father to establish his income going back to the time of the order and each year since and he has failed to do so.

[11] Once again, the default was adjourned on November 19, 2008 to January 14, 2009 to review the disclosure as originally ordered on October 8, 2008.

[12] On January 14, 2009 there was yet another adjournment to March 4, 2009 to have the Respondent serve and file a Motion to Change and propose payment terms. (This was first ordered October 8, 2008.)

[13] On March 4, 2009, the Respondent failed to attend and a warrant was issued and a new default date was set for May 27, 2009.

[14] On May 27, 2009, the Respondent did not attend, although counsel attended. The Respondent was once again ordered to serve and file a Motion to Change and default was adjourned to July 29, 2009. As a temporary order the Respondent was ordered to pay $213 per month commencing June 1, 2009.

[15] On July 29, 2009, default was again adjourned, to September 30, 2009, with the Respondent advised to “seek assistance and commence Motion to Change which is peremptory on support payor to next date”.

[16] Further disclosure was ordered, including financial statements and tax returns for 2007 to 2008.

[17] On September 30, 2009, there was yet another adjournment, to January 6, 2010, and the Respondent was again ordered to serve a Motion to Change on the Applicant and he was to get a motion date. The previous temporary support was continued peremptory on the Respondent.

[18] The next default endorsement was dated January 6, 2010 and again a warrant was issued.

[19] On September 6, 2010, the father signed an undertaking to appear in court on September 15, 2010, for failing to appear on January 6, 2010 for the default hearing scheduled.

[20] The default adjournments continued and yet again on October 21, 2010, the Respondent was to bring a Motion to Change and the default was adjourned to February 3, 2011.

[21] The March 22, 2011 endorsement informs me that the mother was served with the Motion to Change on December 20, 2010.

[22] I have reviewed the father’s motion to change form signed December 20, 2010 and it appears that the mother was served with this form along with a Change Information Form, Form 35.1 Affidavit to change custody, and Financial Statement. The father’s current counsel appears to have assisted in the preparation of this long overdue motion.

[23] The father’s December 20, 2010, sworn change information form asserts:

1. The parties started to live together in October 1995;

2. They have one child, Makaydah Francis Biggs, born March 15, 1996;

3. He is self-employed and his income has fluctuated from 2005 to present and his 2009 income is almost negligible;

4. He is in a common law relationship and has a 15-month old child from this relationship;

5. He asks for a new support order as of March 1, 2011 based on annual income of $21,000;

6. He also asks that arrears be reduced to nil;

7. His material does not allege non-service of the Application giving rise to the August 8, 2006 order (now sought to be varied).

[24] It would appear that the father was finally motivated to bring the matters back to court at that time as he wanted to travel to Barbados from December 24, 2010 to January 7, 2011 along with his common law spouse, their son, and the parties’ daughter, Makaydah. He needed the Family Responsibility Office’s consent to have a Passport Issued for him given his arrears of $25,000 in child support arising from the August 8, 2006 order that was the subject of a repeatedly adjourned default hearing since 2008. He sought this by way of a 14b motion and filed an affidavit dated December 18, 2010 in support of this request. In his affidavit he deposed:

1. The airline tickets were purchased November 26, 2010;

2. The three tickets (as the infant travelled free) totaled in excess of $3,000;

3. He disputes the amount he owes under the August 8, 2006 order;

4. He made a proposal dated December 3, 2010 to the FRO by way of a voluntary Arrears payment schedule, to pay the $704.50 per month plus $500 per month on account of arrears. He also sent the FRO a copy of a financial statement dated December 7, 2010 showing that he was self-employed but had no income;

5. Under assets he said he owned a car purchased in 2006, financed for $16,000 with a balance of $2000 and a monthly payment of $273;

6. While conceding arrears of child support of $24,000, he suggested that the $704.50 per month payments were current;

7. He attached a Statement of Business Activities for 2007, 2008 and 2009;

8. He also attached proof of payments of $700 on November 18, 2010 and December 7, 2010; and $1,200 on December 16, 2010, all in cash;

9. He claimed that he is well established, owns a home jointly, and has his own business.

[25] The mother tried, by way of a 14b motion without notice dated January 19, 2011, to have the court change the jurisdiction to the Greater Toronto Area, Ontario. The mother filed an affidavit dated January 19, 2011 to support her request to transfer jurisdictions. The request was based on where she and the child were living, and her desire to be able to access the assistance of the University of Toronto Legal Clinic.

[26] On March 29, 2011, the father made the last of the $700 per month payments and the additional $500 payment.

[27] The mother filed her Response to the Motion to change on April 26, 2011. She repeated her request to have the file transferred to the Superior Court of Justice in Toronto and sought disclosure for the period of 2002-2009. She claimed that the father works as an Insurance Broker/Agent for Primerica. With respect to the original order and lack of Answer, she claims that the Respondent was served with the Application giving rise to the order on December 23, 2005 and did not respond.

[28] The parties appeared before a DRO on May 2, 2011 (two and one-half years after the commencement of the default process and ordered disclosure). In front of the DRO, the mother advised that she had received no disclosure. The father agreed to produce a copy of his 2009 mortgage application.

[29] The default hearing of June 2, 2011 was adjourned to October 6, 2011 because of the Motion to Change and the father was at that time ordered to pay $100 per month as of July 1, 2011. He was also to provide proof of attempts to secure employment.

[30] On July 25, 2011, McGee J. (of the Family Court in Newmarket) conducted a case conference.

[31] The Applicant mother again asked for a transfer of the case to Toronto. McGee J. proceeded with a case conference and outlined the position of the parties.

[32] On July 25, 2011, McGee J. ordered the transfer of the file to the Ontario Court of Justice (OCJ) at 47 Sheppard Avenue, Toronto. In Toronto, Default Enforcement is dealt with by the Ontario Court of Justice under section 41 of the Family Responsibility and Support Arrears Enforcement Act, 1996 (see section 41 (25)). In Newmarket, since it is a Family Court location, the court could deal with both the Motion to Change and default hearing. Unfortunately the motion to change should have been transferred here.

[33] The Default process was transferred on October 6, 2011, to the Sheppard Avenue OCJ for December 5, 2011. The father did not appear.

[34] On November 2, 2011, at the OCJ at Sheppard Avenue, the judge adjourned the transferred file to December 15, 2011 for a first appearance and by way of a consent 14B to a case conference to be held on January 26, 2012.

[35] The father did not attend the default hearing of December 15, 2011 and the motion was put over to January 26, 2012.

[36] The court then ordered that the Respondent pay $704 per month, plus $500 per month toward arrears.

[37] On January 26, 2012, Waldman J. identified the issue of jurisdiction concerning the Motion to Change that should have been addressed in Newmarket where the transfer should have been made to this court directly. Waldman J. also proceeded to do a case conference. This was the second conference, as McGee J. had already conducted one.

[38] At that time Waldman J. identified the following issues:

1. What is the Respondent’s income?

2. Is he under-employed?

3. Does he have undisclosed income?

4. How does he support his lifestyle?

5. Disclosure remains outstanding.

[39] Waldman J. therefore directed disclosure in the form of an Equifax or equivalent report, and then adjourned to April 11, 2012. Waldman J. ordered the Respondent to pay $704.50 plus $242.50 for extraordinary expenses.

[40] The motion then was adjourned at OCJ on April 11, 2012 to June 20, 2012 to November 7, 2012 (default).

[41] On June 20, 2012, the Motion to Change was transferred to this court.

The father’s financial situation

[42] When the default process first began the father was $15,000 in arrears and there had been minimum success at enforcement (approximately $700) since the August 8, 2006 order. As of November 11, 2011 his arrears stood at $32,169.70. When he wanted to be able to get a Passport to travel to Barbados he managed to pay close to the support ordered and $500 per month on account of arrears. He paid again for a period when ordered to pay by Waldman J. on January 26, 2012 as a condition of the default hearing. I am not aware of the current status of the default but if Waldman J. intended compliance with her order pending the determination of the motion to change, my order is not effective until the father has complied with the order of Waldman J. and he will receive credit for payments made.

[43] The father asks that his support be based on his 2005 income of $21,000 although he claims he is making less than that in 2010 and claims that he paid all of the child care expenses in 2006, 2007 and 2008. It appears by his produced receipts that he may have paid half of the day care expenses.

[44] His first financial statement appears to be dated December 20, 2010. In this Financial Statement he affirmed and advised that he was self-employed in a business known as The Glass Mechanic, located at 7487 Netherwood Road, Mississauga. The statement shows monthly income of $28.53 from other sources. He states a gross annual income of $3093.95 for the year prior, yet his expenses including mortgage, taxes, car insurance, and loans, total in excess of $2,000 per month. Following his financial statement is a series of Notices of Assessment which report his income as follows: 2010 - $ 2,142; 2009 - $3, 093; 2008 - $18,200; 2007 - $9,569; 2006 - $29,432 (all line 150).

[45] The father also provided tax summaries for 2009 which indicate a loss of $6,096.67 for his self-employment income, RRSP withdrawal of $8,742, and other nominal amounts.

[46] He also produced statements of business or professional activities for the business, The Glass Mechanic, where he is shown as a 50% partner. I was advised that this was with his father. While the 2009 statement shows $12,192 of expenses, it shows no income and the losses are mainly related to car and advertising expenses.

[47] In 2008, his self-employment income was up to $17,722.26 and indicated a deduction of $3,704 for support payments. I do not know what this represents.

[48] For 2008, gross sales for the business were $75,000 and after GST/HST reduction of $3,571 sales totaled $71,429.

[49] The father’s half share of profits before deduction of $17,395 was $35,117. The expenses largely related to travel, car, entertainment and phone.

[50] For 2007 gross profit was $80,000 and net of expenses $46,067.40, half of which is the father’s. Again the expenses are similar although supplies amounted to nearly $7,500.

[51] In 2007 he has a similar deduction and $9,491.03 of self-employment income.

[52] In his January 19, 2012 financial statement the Respondent asserts that he was working for Wirecomm Systems (2008), Inc. (“Wirecomm”) in Mississauga at a gross monthly amount of $1,696.96 or $20,363 per annum. He claims monthly expenses of $2,506. His pay statement from Wirecomm shows $10.34 per hour as his hourly rate.

[53] Given the above financial information and his December 2010 affidavit to get his passport and his promises to the court and FRO to pay $500 monthly on arrears, this raises several credibility issues.

The mother’s financial situation

[54] The Applicant works at Sunnybrook and in 2007 she earned $26,629; in 2008, $26,112; and in 2009, $33,683.

[55] In 2011, the mother was on Employment Insurance and in 2012 was again employed at Sunnybrook.

[56] She sought contribution for the child’s health needs and other extraordinary expenses. I ordered the father to have the child placed on a family health plan that he says is available for the child through his spouse. If not already provided, he shall provide details of the plan, confirmation that the child is noted and covered and provide the necessary documentation to allow the mother to process claims.

The issue of service of the original Application

[57] Justice Rogers’ August 8, 2006 order was made on an uncontested basis since the father did not file an Answer. He imputed $50,000 income to the Respondent father. The father now claims that he was either never served with the original Application or that if he was served, he was served by the mother and such service is contrary to Family Law Rule 6 (4.1).

[58] In father’s original Motion to Change he did not raise this recent allegation that he was not served with the original Application leading up to the order of August 8, 2006 that proceeded as an uncontested hearing. He brought no motion to set aside for non-service.

[59] For the first time, in an affidavit sworn November 30, 2012, the Respondent claimed that he was never served with the Application leading up to the August 8, 2006 order. His counsel, in submissions, claims (although I was not provided a copy of the original affidavit of service) that the Applicant served the Respondent himself and that such service is contrary to Family Law Rule 6 (4.1). However, the Rule amendment relied upon, which states that service cannot be carried out by the party required to serve, came into effect after the order that he now seeks to vary.

Conclusions

[60] Based on the late assertion of non-service and all that has occurred, I cannot conclude that the Respondent was not served. In fact, the history of his delay and non-attendance at default hearings leads me to conclude that he was served and just ignored the process, delayed disclosure and did what he could to avoid addressing the issues until pressed.

[61] He was given many opportunities to bring a Motion to Change and more than two years passed before he brought any motion. As earlier stated, he appeared motivated to finally bring the motion to change only when he wanted to travel and needed his passport.

[62] His delay, and ability to pay support as ordered when he chose to (as he offered to do to get his passport and when specifically ordered) leave me with great difficulty in accepting his asserted income. I certainly see no justification to change the order prior to the date he finally brought his motion to change. He has not satisfied me in any event as to his income for the period he is seeking to change, as he was self-employed for much of that time and the evidence falls short of satisfying me as to his income until he ended his business. He also fails to provide an explanation as to what happened to his business. Further, I am unclear on what role his father had, if any, in the business.

[63] As a result, I am also not satisfied that he is not presently under employed or with other sources of income as he awaits the outcome of this long delayed motion to change.

[64] While there was a period of time that the child resided with him and he paid day care expenses directly, day care expenses no longer exist. So, for the period before January 2011, the arrears shall be reduced by $911.25 for 2008; $1,921.75 for 2007; $1,861 for 2006.

[65] From 2009 there shall be a reduction of $2,000 per annum for section 7 expenses relating to daycare, but because the mother did not have medical coverage as requested I am not prepared to reduce support further.

[66] It is difficult to determine what amount I should now find as the Respondent’s income. The Respondent’s credit report shows fairly good credit and a history of employment. It would appear that he decides what he is prepared to pay and when.

[67] I am prepared to find that the Respondent has the capacity to earn a minimum of $35,000 per annum.

[68] Therefore, commencing January 1, 2011, the Respondent is to pay $303 per month. He shall also receive a reduction of arrears at this rate for the four months when the child apparently lived with him.

[69] While I would have been prepared to consider section 7 expenses if proper receipts and details were provided, that would be paid proportionately and will have to await any further motions to change brought by either party so as not to now continue this far too delayed process.

[70] The Family Responsibility is to recalculate the arrears based on this order.

[71] Pending recalculation, the Respondent is to pay in addition to the $303 per month, $200 per month on account of arrears. The amount he is to pay on account of arrears may be addressed when the default process is addressed. This reduction is conditional on satisfying Justice Waldman’s last order of January 26, 2012 as far as payments, as well as providing confirmation that the child, Makaydah Francis Biggs (born March 5, 1996), is covered on a medical plan that will be maintained and that particulars will be provided to the mother to allow her to process claims in a timely manner and receive information directly from the insurance provider.

[72] Commencing January 12, 2013, and each year while the child is a dependent, the parties are to exchange complete tax returns, as filed for the previous year, and Notices of Assessment as received. They are also to inform each other forthwith of any changes in their employment income forthwith upon the change.

[73] Support Deduction Order is to issue.

[74] The history of this process is unfortunate.

[75] If either party seeks costs, they may seek a time to re-attend before me on a motion date arranged through the Trial Coordinator, with service on thirty days’ notice and confirmed. If no such motion is returnable by the end of March 2013, there will be no order for costs.

Czutrin J.

Released: January 7, 2013