Decaen v. Decaen, 2015 ONSC 3271
CITATION: Decaen v. Decaen, 2015 ONSC 3271
COURT FILE NO.: 11351-07-01
DATE: 2015-05-22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Denise DeCaen
Applicant
– and –
Marc DeCaen
Respondent
Denise DeCaen, Acting in person
Marc DeCaen, Acting in person
HEARD: May 20, 2015
REASONS FOR JUDGMENT
GAUTHIER, J.
[1] The matter was before me on May 20, 2015, as a result of the respondent’s motion, brought on January 7, 2015, for the following relief:
an order that the Applicant’s cross motion of joint custody and access to Isabelle and Kaleb DeCaen, both born October 22, 2004 be dismissed and that the matters of custody, access and support be redirected at the trial of an issue which has already been served to the Applicant on January 5, 2015.
have all arrears, credits of overpayments of child and spousal support, credits for support payments made, past court cost credits and court costs owing to Respondent reviewed and adjusted accordingly.
[2] On May 20, 2015, I embarked upon a settlement conference with the parties.
[3] During the course of that conference, and for reasons put on the record, I advised the parties that this court is not able to address the issues which arise between the parties as a result of prior court orders and the manner in which the Family Responsibility Office has enforced prior orders for spousal and child support, and how it has dealt with orders which fixed arrears.
[4] On January 15, 2015, which was the first return date of the respondent’s motion, the following order was made, on the consent of both parties.
(a) The status quo on custody & access is to continue;
(b) Both parties are to do an accounting of what the support payments would have been since the order of Gauthier J. in March 2008; They are to prepare a statement of the payments & credits since that date as well. Should the parties not agree on what the arrears are if any, then they may obtain a date to argue that issue;
(c) The Respondent is no longer obligated to pay child support for Kaleb (Oct.22/04); & Isabelle (Oct. 22/04); as of Oct. 2/14;
(d) The Respondent is to continue paying child support in the sum of $381 monthly for Denyca. Should the parties not agree on the amount then that issue may be argued; as per court file #FS11351-07;
(e) The court dates set for Feb. 17/15 & June 8/15 are vacated;
(f) If necessary parties may contact the TC for setting a date to argue the issues of arrears & ongoing support.
(g) The applicant is to pay child support for Kaleb & Isabelle as per the guidelines once she has determined what her income will be;
(h) Both parties are to exchange Income Tax Statements by no later than March of each year;
[5] I will have more to say about paragraph (b) of the above order, later in this endorsement.
[6] The issues of custody, primary residence of the children, quantum of child support payable on a split custody arrangement effective October 1, 2014, and outstanding costs awarded to the respondent on August 21, 2014, were all resolved by way of a consent order made on March 31, 2015.
[7] The issue of arrears or overpayments was put over to the May 20, 2015, date.
[8] The material filed by the respondent indicates that he was seeking:
a. an order that states that the FRO account #1030394 be placed at zero as of May 1, 2015; and
b. an order that indicates that the two separate amount of child support and spousal support that he has paid for 2007 to 2014, inclusive, for income tax purposes. [sic]
[9] For her part, the applicant’s brief sets out her request that there be a final order fixing support arrears at $27,643.29.
[10] Both parties have performed a calculation of all amounts owing/paid, as far back as November, 2007, and have exchanged and filed voluminous documentary evidence related to their calculations.
[11] A review of the file makes it clear that there are prior orders dealing with the issues of arrears and overpayments.
[12] Firstly, there is the order of Hennessy J. made on June 4, 2009, declaring that “the support arrears be reduced by $2,544.”
[13] Then there is the March 13, 2012, order of Ellies J. which provided as follows:
The Applicant is entitled to retroactive child support from the Respondent in the amount of $2,536.
The Applicant is not entitled to a retroactive adjustment to spousal support for the years 2008 and 2010.
The Respondent is entitled to credit for overpayment of spousal support for the year 2009 in the amount of $3,324, and for the period of July 1 to December 31, 2011 in the amount of $3,600.
As a result of paragraphs 21-24 herein, the Respondent is entitled to a credit in the amount of $4,388 towards his arrears of spousal support and child support. Those overpayments ought to be deducted from the arrears owed by the Respondent under the previous orders.
[14] On April 8, 2013, the Court of Appeal confirmed Ellies J.’s calculation of the respondent’s overpayment of spousal support in the amount of $3,324 for the year 2009, and in the amount of $3,600 for 2011. Further, the Court of Appeal declared that the respondent was to receive a credit in the amount of $3,507 for the overpayment of child support, and in the amount of $6,972 for the overpayment of spousal support, for a total of $10,359, for the year 2012.
[15] There is the order of August 21, 2014, finding that:
“The respondent having established by Statement from FRO that as this date, there are no arrears of support outstanding….”
[16] All of the above orders make it clear that the issues of arrears and overpayment, from 2007 until August 2014 are res judicata. In other words, those matters have already been adjudged or settled by judgment or court order. A decision has already been rendered on the merits and is conclusive as to the rights of the parties. Therefore, there is an absolute bar to any subsequent proceeding involving the same issues. Once a matter has been judicially decided, it is finally decided and cannot be revisited by the court or the parties in a court proceeding.
[17] I return now to the order of January 15, 2015. This was a procedural order made, quite likely, without the knowledge of the existence and impact of the earlier orders I have reviewed above. The order was made on the first return of the motion and on consent of the parties. There would have been little or no opportunity to consider the earlier orders and their legal significance to the most recent request of the respondent. It is of note that this case has been before the court for eight years, and the material involved in this case takes up four bankers’ boxes. Not all of that material would have been before the judge hearing the motion on January 15, 2015.
[18] I rely on the provision of Rule 25(19) of the Family Law Rules, O. Reg. 114/99, to change that order by rescinding the provisions of subparagraphs (b) and (f).
[19] The directions for an accounting of the arrears, if any, since March of 2008 was a mistake in the face of the existence of the earlier orders: see Rule 25(19)(b).
[20] Additionally, the impugned provisions of the January 15, 2015, order flow from the existence of the earlier orders not being considered by the court, due to the circumstances of the motion and the history of the case: see Rule 25(19)(c).
[21] Also, and again relying on the provisions of Rule 25(19), paragraph 21 of my order of March 31, 2015, (putting the matter over for a settlement conference on the issue of arrears) is rescinded.
[22] That provision in the March 31 order was a mistake in the face of the existence of the earlier orders. I did not, at the time, appreciate the legal significance of those orders.
[23] In view of the above, I indicated to the parties on May 20, 2015, that the court had no authority to proceed with any accounting as requested by them.
[24] Therefore, I must dismiss the motion of January 15, 2015.
[25] For the sake of clarity, the only remaining issue that the court can address is that of ongoing child support on a review of the applicant’s income situation. That matter has been adjourned to September 21, 2015, at 9:15 for a Settlement Conference.
The Honourable Madam Justice Louise L. Gauthier
Released: May 22, 2015
CITATION: Decaen v. Decaen, 2015 ONSC 3271
COURT FILE NO.: 11351-07-01
DATE: 2015-05-22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Denise DeCaen
Applicant
– and –
Marc DeCaen
Respondent
REASONS FOR JUDGMENT
Gauthier, J.
Released: May 22, 2015