CITATION: Heather Hamilton v. Yvon Gaetan Miron, 2015 ONSC 4117
COURT FILE NO.: 5232/10M1
DATE: 20150624
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HEATHER HAMILTON
Applicant
- and -
YVON GEATAN MIRON
Respondent
Julie Richard-Gorman, for the Applicant
Robert A. Dinnen, for the Respondent
HEARD: May 19, 2015
D E C I S I O N O N C O S T S
WILCOX, J.
[1] The Respondent’s Motion to Change the March 7, 2011 Final Order of MacDonald J. with respect to access, child support and arrears was resolved on consent and a Final Order dated May 19, 2015. That order invited costs submissions, which have been received.
[2] The parties co-habited from 1998 to 2002 and had one child, a son born December 19, 2000. They had lived in Alberta, but the Applicant returned to Ontario with the child. Her Application in the Ontario Superior Court of Justice, issued June 22, 2010, sought child support from the Respondent who remained in Alberta, based on an annual income alleged to be around $100,000, retroactive to November 1, 2009, and other relief. The Respondent worked in the oil industry and this figure was from Stats Canada for people in the position that the Applicant assumed the Respondent would have progressed to.
[3] The Respondent was served with the Application on July 8, 2010. He did not respond to it.
[4] The Respondent alleged in an affidavit in a subsequent proceeding that he was disabled and unable to work as a result of a workplace accident on March 24, 2010, was unable to travel to Ontario to represent himself in court, and was unable to provide the retainer for a lawyer.
[5] The Applicant moved for summary judgment on January 17, 2011. That was adjourned to March 7, 2011. The Respondent did not appear. The Applicant obtained the Final Order of MacDonald J. requiring the Respondent to pay child support based on an imputed income of $100,413 from November 1, 2009, and provide his income tax returns and notices of assessment for 2007, 2008 and 2009 and proof of pay for 2010, among other things.
[6] The Respondent’s Motion to Change sought to change that order. Prior to hearing his motion to change, the Respondent brought a motion seeking permission to issue his Motion to Change without providing financial disclosure. As he was seeking relief regarding his child support obligation, which is based on his income and for which financial disclosure is absolutely necessary as well as being explicitly required by law, the logic of that request is questionable to say the least. Accordingly, the following endorsement was made on August 13, 2012:
Motion adjourned sine die on ten days’ notice. Respondent has the option of bringing it back on with further materials better explaining why he should not have to follow the Rules, or of proceeding according to the Rules and filing the income related information the Rules require.
[7] The Respondent issued his Motion to Change, which had been signed March 22, 2012, on December 3, 2012. It sought to reduce his child support as of March 24, 2010, the day of his accident, based on an alleged income of $49,320 per year, and to expunge arrears of child support amounting to $8,632.55 as of that date. It alleged that he was receiving worker’s compensation of $4,110 per month, said to be one half of his previous employment earnings of $100,113. Notably, this is in fact the income imputed to him in MacDonald J.’s Order, not what his actual income had been, as will be seen.
[8] The Respondent’s Change Information form which had been sworn March 22, 2012 gave his income as:
2010 $80,000 2011 $50,960 2012 $49,320.
[9] However, the Notices of Assessment filed at the same time show the following incomes:
2009 $132,499 2010 $92,515 2011 $50,670.
[10] The high level of income in 2009 appears to explain his request to proceed without disclosing his last three years’ income. It appears that the amount that the Applicant had sought to be imputed to him and which he had acknowledged in his Motion to Change was only about 75 percent of his actual income at the time prior to his accident.
[11] By April 2013 the case was facing administrative dismissal due to lack of necessary activity on it.
[12] A settlement conference scheduled for September 30, 2013 was re-scheduled because the Respondent had yet to provide his financial information.
[13] The Respondent’s 2012 income information was not disclosed until September 26, 2013, when only a T-5007 was supplied. The Respondent failed to appear at a settlement conference scheduled for April 14, 2014, resulting in a $1,000 costs award against him. Various motions took place for interim relief.
[14] It appears from correspondence attached to exhibits on file that the Respondent did not supply a complete set of his tax returns until July 14, 2014, when his lawyer sent them for 2007 through 2013.
[15] The matter was scheduled for a one day trial of the Motion to Change to be held May 19, 2015.
[16] On the trial date, the parties consented to a Final Order changing support as of January 1, 2010. The income numbers agreed to for 2010 through 2013 were the same as or very close to those disclosed by the Respondent from the start of his Motion to Change, except for 2010’s which turned out to be over $12,000 higher than he had originally alleged. One wonders, then, why, if the Respondent knew his annual incomes, he was not able to provide the required proof of it on a more timely basis.
[17] While the Motion to Change process was ongoing in this desultory fashion with respect to child support, there were also proceedings with respect to access. Despite not providing the necessary financial information to move the Motion to Change to a timely resolution, the Respondent was able to bring a contempt motion returnable in May, 2012, to enforce his access.
[18] The Applicant sought full indemnity costs of $18,112.13 on grounds including that the Respondent delayed the resolution of the Motion to Change by failing to provide the necessary financial disclosure, including that ordered by MacDonald J. Her materials show that she was willing to resolve the matter at the child support guideline amounts if the Respondent provided proof of income. When his disclosure arrived, only shortly before the date of a contempt motion against him, it showed that he had earned $144,411 in 2008. His 2009 income of $132,499 has already been commented on. The Applicant contends that the Respondent has benefited from not disclosing his income earlier because it would have produced a large increase in child support. She also states that he did not produce his 2014 income information until the trial date.
[19] However, the 2007, 2008 and 2009 incomes were irrelevant to the final agreement which changed child support only starting in 2010. No reason for this was given.
[20] The Respondent alleges that his income information was complete from 2010 to 2012 by September 2013, but I have already noted that only a T slip for 2012, not a tax return or Notice of Assessment, was supplied. Similarly, although a November 2014 year to date pay stub had been provided, the 2014 income tax return was not until the trial date itself.
[21] The Respondent complains that he had to pay child support for about two years in which his income was one half of what the child support was based on and that negotiations from February 2013 to the trial date were not successful. It was his motion to change. Why would he have not simply brought the matter on as soon as possible with the necessary productions, in view of the failure of negotiations?
[22] The Respondent sought costs of $12,500.
[23] I have taken into account the factors enumerated in Family Law Rule 24, as illuminated by the case law. Although the Respondent was successful in having his child support reduced for three years before his income rebounded, I do not think he should be rewarded for his behaviour. Even allowing for the difficulties he faced after his accident, I think that this case could have been dealt with in a more forthright and efficient manner by him.
[24] I conclude that the Respondent should pay costs of $10,000, inclusive of fees, disbursements and taxes, to the Applicant within 30 days.
Justice J.A.S. Wilcox
Released: June 24, 2015