SUPERIOR COURT OF JUSTICE – ONTARIO

DATE: 2015-09-21

COURT FILE NO.: FS-08- 864491

RE: IAN CUMMING

Applicant

AND:

MELISSA CUMMING

Respondent

BEFORE: RICCHETTI, J.

JUDGMENT

BEFORE: Ricchetti, J.

COUNSEL:
D. Acri for the Applicant (Father)
P. Viater for the Respondent (Mother)

HEARD: September 17, 2015

OVERVIEW

[1] On January 10, 2011 Justice Murray made a final order in these matrimonial proceedings (“2011 Consent Final Order”). This was a consent order settling all matrimonial issues between the parties.

[2] The Father brought a Motion to Change in May 2012, coincidentally, the same year the Mother remarried.

[3] The history of this proceeding is lengthy and complicated, caused to a large extent by the actions of both parties. The numerous conferences and motions in this proceeding have done little to move this matter to trial or judicial determination. Neither party has shown a willingness to bring this matter to finality. Both share in the delays getting this matter dealt with on a final basis.

[4] The issues to be tried in this proceeding were identified and crystallized by the parties in an agreement which was incorporated into a court order in June 2014. We are now nearing the end of 2015, over a year later and there remains the same issues which have been previously identified as needing to be dealt with before trial such as adding parties, disclosure, and questioning.

[5] This particular motion appears to be an attempt by the Father to delay the trial. He has known of the Mother’s marriage for three years. The issue of the wife’s new husband was identified in this proceeding a long time ago. Now, before a new Trial Management Conference is to be held to schedule a trial date, the Father seeks to add the Mother’s new husband as a party solely for the purpose of obtaining disclosure from and questioning of the Mother’s new husband. There is no claim against or relief sought from the Mother’s new husband. No draft Amended Motion to Change is attached to the Father's materials.

[6] I am satisfied the Father is content to delay the final adjudication of this matter as he has not complied with the 2011 Consent Final Order. The Father’s arrears of spousal support under the 2011 Consent Final Order are substantial and continue to mount. Reaching a possible “day of reckoning” on all the issues is not in his interest.

[7] This matter does not need further delays or further interlocutory/interim orders. It needs a trial.

THE BACKGROUND

[8] The parties had been married for approximately 9 ½ years. They were married on May 8, 1999 and separated on August 30, 2008. There are two children of the marriage, Connor (born March 16, 2004) and Courtney (born November 1, 2007) (“Children”).

[9] Pursuant to the 2011 Consent Final Order, the Mother was granted custody of the Children. The Father had specified access. The Father was to pay child support in the amount of $902 per month and spousal support in the amount of $918 per month. Support was based on the Father’s income of $60,000 per annum. Financial disclosure was to be ongoing with the child support to be readjusted by agreement, failing which the matter could come back to court. Spousal support was to be revisited when Courtney attended school full time. The Father was also to pay his share of the s. 7 expenses.

[10] The Father brought a Motion to Change the 2011 Consent Final Order in May 2012.

[11] The Mother remarried on September 8, 2012. The Mother was during the marriage and continues to date to be a “stay at home” mother but states she is seeking employment, an issue disputed by the Father.

[12] The Father stopped paying spousal support in 2012.

[13] On November 23, 2012 the Mother provided her Response to Motion to Change. She sought, among other relief, a dismissal of the Father’s Motion to Change, sought retroactive and prospective changes to the child support and spousal support payable by the Father.

[14] A Case Conference was heard on February 21, 2013. Both parties were ordered to produce 2010, 2011 and 2012 tax returns. Justice Snowie ordered:

“The order of Murray J. dated Jan 10/11 is a valid continuing order pending a further order of this court. This includes para #27 Spousal Support and FRO shall continue to collect & pay out the same pending further order of this Ct.”

[15] The Father was fully aware that he was obliged by the 2011 Consent Final Order and the order of Justice Snowie of February 21, 2013 that he was to continue paying spousal support.

[16] The Father has, by his own admission, refused to do so. As set out below, the Father's position is that, because the Mother has remarried, he has no obligation to pay her any further spousal support. He continues to take this position despite the outstanding 2011 Consent Final Order and the order of Justice Snowie.

[17] Despite the fact that there was an outstanding Motion to Change, the Mother brought her own Motion to Change the 2011 Consent Final Order on February 20, 2014. On February 21, 2014 the Mother brought an ex parte motion and obtained an order suspending the Father’s access to the Children. There does not appear to be any disclosure in the Mother's ex parte materials that there already existed an outstanding Motion to Change. An order was granted to the Mother on February 21, 2014 suspending the Father's access to the Children. On February 28, 2014, the February 21, 2014 Order was set aside because the presiding justice was not satisfied that the Mother had made full and frank disclosure in the ex parte materials.

[18] Between the two Motions to Change, one would have expected that the issues between the parties had been clearly set out in one or other motion.

[19] On April 17, 2014 the Father brought a motion to proceed with a final hearing of his Motion to Change. The Father identified the issues to be determined as child support, spousal support, and transportation issues in this motion. There is no information in the court records as to what happened with this motion.

[20] The matter came back before the court on June 5, 2014. A consent order issued that day. The consent order dealt with further disclosure requests. In addition, the consent set out the following:

The parties acknowledge that the outstanding live issues in these proceedings include a review of spousal support (including but not limited to entitlement, variation to increase or decrease, adjustments from 2010 to date, spousal support arrears etc.) adjustments to child support from 2010 to date, retroactive child support, child support arrears, the children’s s.7 expenses (both retroactively and ongoing), Ian’s health care coverage for Melissa and children pursuant to Justice Murray’s order dated January 10, 2011 (January 2011 Order”) Ian’s maintenance and contributions of life insurance to secure support pursuant to the January 2011 Order; transportation and access issues.

Within 30 days Melissa’s counsel shall provide Ian’s counsel with a “Revised Amended Response to Motion to Change” to incorporate any additional relief sought by Melissa in her February 2014 Motion and her Motion to Change dated February 20, 2014. Within 30 days of being provided with Melissa’s proposed “Amended Response to Motion to Change”, Ian’s counsel will advise Melissa’s counsel in writing as to whether he will agree to Melissa filing same.

By September 15, 2014 Ian and Melissa will determine whether he or she wishes to proceed to questioning pursuant to Justice Snowie’s order dated February 21, 2013.

Questioning, if it proceeds, shall be completed by November 15, 2014 or such other date agreed to by counsel in writing.

("the June 5, 2014 Consent Order")

[21] No questioning took place. The Mother did not revise her Respond to the Motion to Change. Nothing appears to have happened for months. Effectively, the two Motions to Change remained outstanding.

[22] Further, it was evident that the Father's Motion to Change and the Mother's Response to the Motion to Change had not set out all the issues identified in the June 5, 2014 Consent Order.

[23] The Father continues to pay child support pursuant to a consent variation of June 5, 2014 – based on his $82,403 per annum income. Arrears of child support were not dealt with.

[24] A Trial Management Conference (TMC) was scheduled for February 11, 2015. Both parties filed TMC briefs. The Mother's Motion to Change was not dealt with at the TMC.

[25] In his TMC brief, the Father set out the relief he sought at trial which included; joint custody of the children, continued child support as per the 2011 Consent Final Order and termination of the spousal support retroactive to the date of the Mother’s marriage.

[26] In the Mother’s TMC brief, the Mother set out the relief she sought at trial which included: dismissal of the Father’s claim for joint custody, retroactive and prospective variation of child and spousal support, and the Father to provide health coverage for the Children.

[27] Essentially, these are the same issues the parties agreed needed to be dealt with at trial in the June 5, 2014 Consent Order.

[28] On February 11, 2015, the TMC was converted to a settlement conference. On consent, leave was granted by the presiding justice for questioning “on all issues”. The parties were given leave to bring any motion relating to:

• disclosure

• by the Father to add Franco Andreacchi (the Mother’s new spouse) as a respondent

• to amend the Motion to Change to add further claims.

[29] Again, nothing happened for months in this proceeding. Again, there is no reference to the Mother's Motion to Change.

[30] On June 18, 2015, the Father brought this motion seeking:

a) A Final Order terminating spousal support and setting aside all arrears;

b) In the alternative, that the Mother’s new husband be added as a party to these proceedings; the Mother’s new husband disclose financial information; that spousal support be suspended pending disclosure; and an order that the Mother’s new husband be questioned; and

c) An order that the Father be permitted to amend the Motion to Change to include claims to change custodial arrangements, to increase his access, suspend and terminate spousal support retroactive to September 2012, and vacate all arrears of spousal support.

Analysis

Final Order terminating spousal support

[31] The Father’s counsel conceded that this relief is not one that can be made on this interlocutory motion. This part of the Father’s motion is dismissed.

Franco Andreacchi

[32] Franco Andreacchi was not served with this motion. On this basis alone, no relief can be granted which affects Franco Andreacchi. All relief sought with respect to Franco Andreacchi is hereby dismissed.

[33] I should add that, even if Franco Andreacchi had been served, I would nevertheless have dismissed this part of the Father’s motion. There is no claim against Franco Andreacchi which would justify his addition as a party to these proceedings. The Father only seeks to add Franco Andreacchi to obtain disclosure and questioning of Franco Andreacchi. That does not amount to a "claim". Without a proper and valid claim in law against Franco Andreacchi, there is no basis in law for him to be added as a party to this proceeding.

[34] If the Father wanted financial disclosure from or questioning of Franco Andreacchi, a non-party to the proceeding, there are procedures available for such relief. The Father chose not to bring such motion(s).

[35] There is a further difficulty regarding Franco Andreacchi. The Father has known for approximately three years that the Mother remarried to Franco Andreacchi. The Father has had many opportunities to request disclosure of Franco Andreacchi’s financial information from the Mother or bring a motion to compel third party disclosure. Disclosure issues have been dealt with on numerous occasions by this court but, now, when the matter is to proceed to trial, the Father seeks such relief. It is clear from the Father's February 2015 TMC brief that he was prepared to proceed to trial without this disclosure from Franco Andreacchi.

[36] The issue of questioning has been before this court several times but at no time did the Father seek to obtain an order for the questioning of Franco Andreacchi. The Father could seek an order for questioning of Franco Andreacchi. The Father chose not to seek such an order.

[37] The Father can call Franco Andreacchi as a witness at trial and require him to bring all his financial documentation when he comes to testify.

[38] Adding a party for the purpose of disclosure and questioning at this time will certainly and considerably delay the trial of this proceeding. The Father has considerable financial incentive is to delay this matter because he has stopped paying spousal support in 2012 and there are other alleged breaches of the 2011 Consent Final Order. The Father appears prepared to enjoy that financial benefit until this Motion to Change is tried regardless of what court orders are outstanding.

[39] All relief relating to Franco Andreacchi is dismissed.

The Mother’s efforts to obtain employment

[40] Questioning was available to the Father on at least two occasions when ordered by the Court. Further, the Mother set out her efforts to obtain employment in her affidavit of September 10, 2015. A number of documents relating to her efforts to obtain employment were attached to her affidavit. The Father chose not to cross-examine the Mother on this or any other part of her affidavit.

[41] I do not read the order made on February 11, 2015, which permitted questioning, to be limited to a particular time as was the prior order. I see no reasons why the Father cannot now proceed with questioning, including questioning the Mother with respect to her efforts to obtain employment. Likewise the Mother may proceed to questioning the Father, if so advised.

[42] There is ample time for questioning prior to trial.

Amending the Father’s Motion to Change

[43] What is clear is that the Father's Motion to Change and the Mother's Response to the Motion to Change do not set out the relief each claims against the other or the relevant facts to support the claims advanced.

[44] The Mother's counsel would have me dismiss the Father's motion because he is in breach of 2011 Consent Final Order and the June 5, 2014 Consent Order.

[45] The Father remains in breach of the 2011 Consent Final Order in that:

a) While the Father continued to make child support in accordance with the 2011 Consent Final Order, the Father’s income was allegedly higher at the time and had increased at least until June 2014 but the appropriate Guideline support has not been increased by the Father. Based on the Father's own disclosure of his annual income, there appears to be a compelling argument that the Father’s child support obligation, based on his stated income to be $60,000, is low because it appears that in 2010 his income was $82,652 and 2011 income was $70,311. The 2011 Consent Final Order expressly provided for the exchange of financial information and variation of the child support payable. The Mother estimates the arrears of child support, based on the Father's disclosed income, to be approximately $15,000;

b) The Father has not paid for any portion of his share of s. 7 expenses as required by the 2011 Consent Final Order;

c) Despite Justice Snowie’s Order of February 21, 2013, the Father has disregarded this order as well. The spousal support arrears are now approximately $27,025. Essentially, the Father’s position is that once the Mother remarried, he no longer has an obligation to pay spousal support. However, the law is clear that remarriage is not a bar to the continuation of spousal support, it is only a factor to be considered on a Motion to Change. See Harris v. Gilbert, (1997) 1997 14497 (ON CA), 32 OR (3d) 139 (C.A.); and

d) Despite the 2011 Consent Final Order, the Father has not kept the Children and Mother on his medical, drug and dental plan. No reason was given for this failure. In fact, it appears that the Father cancelled his medical and dental insurance in 2010;

[46] The Father is employed by Microsoft and earns approximately $85,000 per annum. As a result, the Father has the financial ability to comply with the 2011 Consent Final Order, now even more so than when it was made. This is not a situation where hardship or even undue hardship would be or have been caused if a final order was enforced pending the determination of the merits of a Motion to Change.

[47] While I am inclined to simply dismiss the Father’s motion based on his wilful disregard of court orders, in my view, aside from the relief against Franco Andreacchi, the issues of custody and access are not new issues but are not issues which have been fully and properly set out in the Motion to Change or Response to the Motion to Change. There is no surprise what the issues to be tried are but they are not set out except in the June 5, 2014 Consent Order.

[48] What is necessary is to regularize the pleadings to identify these issues. I acknowledge that it is best to have the issues delineated in the pleadings before trial. As a result, the Father may amend his Motion to Change within 30 days from today's date but the relief claimed will be limited to the issues identified in the June 5, 2014 Consent Order. Within 30 days thereafter, the Mother may amend her Response to the Motion to Change but her response (and any relief sought) is limited to the issues identified in the June 5, 2014 Consent Order. Once this is done the Mother's Motion to Change will be dismissed with costs to be determined by the trial judge in this proceeding.

[49] It is time to get to trial as soon as possible.

CONCLUSION

[50] The following order shall issue:

a) The parties shall attend a Trial Management Conference before me on Wednesday December 9, 2015 at 9 am. TMC briefs to be filed. I will provide the parties with a trial date at that time;

b) The Father may amend his Motion to Change within 30 days but the relief is limited to the issues identified in the June 5, 2014 Consent Order;

c) Within 30 days thereafter, the Mother may amend her Response to the Motion to Change but her response (and any relief sought) is limited to the issues identified in the June 5, 2014 Consent Order;

d) upon the Mother filing her Response to the Motion to Change, the Mother's Motion to Change dated February 20, 2014 is hereby dismissed with entitlement and quantum of costs, if any, to be determined in this proceeding by the trial judge; and

e) If there are any further interlocutory motions, they are to be brought before me.

COSTS

[51] The parties shall make written submissions for the costs of this motion.

[52] Either party seeking costs shall make and serve written submissions within 3 weeks of today’s date. The written submissions are limited to 3 pages of submissions, plus a Cost Outline and any authorities.

[53] Responding submissions shall be served within two weeks thereafter with the same limitations.

[54] There will be no reply submissions without leave.

Ricchetti, J.

Date: Monday September 21, 2015