COURT FILE AND PARTIES

COURT FILE NO.: FS-12-00018016

DATE: 20150921

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Tho Thi Thi Tran, Applicant

AND:

Thang (Kevin) Tran, Respondent

BEFORE: Kiteley J.

COUNSEL:
Self-represented Applicant

Self-represented Respondent

HEARD: August 20, 2015

ENDORSEMENT

[1] This is a motion by the Respondent father to retroactively vary the temporary child support order made by Greer J. dated August 29, 2012 and to vacate the arrears. This is also a motion by the Applicant mother to retroactively vary that order by increasing child support. For the reasons that follow, the motion by the Respondent is dismissed and the motion by the Applicant is adjourned to the trial judge.

[2] The Applicant and Respondent have two children born May 16, 2010 and August 18, 2011. The parents separated in December 2010.

[3] At a case conference held on August 29, 2012 Greer J. made an order on consent “on a temporary without prejudice basis” for access and requiring the Respondent to pay child support in the amount of $817 per month based on income of approximately $55,000. The order also included a list of documents which each of the parties was ordered to produce within 45 days. Greer J. adjourned the case conference to December 21, 2012 at which time the parties were referred to mediation. Although both parties appeared to be represented on August 29, 2012, the order was not signed and entered until April 17, 2013. It appears that it was received by the office of the Director, Family Responsibility on April 22, 2013.

[4] The Respondent made no payments until September 2013 when he paid $200. The Director took enforcement proceedings and in a motion returnable March 6, 2014, the Respondent asked for an order that the Director refrain from suspending his driver’s licence. The Statement of Arrears provided by the Director indicated that the Respondent was in arrears $14,323. In his affidavit in support of that motion, the Respondent said that at the time of the consent order he had been a partner in a small start-up web design company called Netvatise. Having been a partner since around 2008, he said that his income was dependent on business generated. He provided his Notices of Assessment for 2008 to 2011 which showed gross income in 2008 was $34,571; in 2009 it was $27,361; in 2010 it was $31,421 and in 2011 it was $55,451. He said that in August 2012 he did not know how much he would make in 2012 but agreed to pay child support based on $55,000.

[5] The Respondent said that in August 2013 he said he had a falling out with his business partner Carlton Grant. He said he had been having a lot of trouble keeping up with the work, that they had had many cancellations and complaints and that he and his partner were having disagreements about his performance. Mr. Grant had provided the start up money and, when the Respondent was not able to pay him back for his investment or even for half of his investment he was forced out of the company and Mr. Grant continued Netvatise on his own. He insisted that he did not end his involvement with Netvatise voluntarily.

[6] In the Form 13.1 dated February 28, 2014 filed by him in the enforcement proceeding the Respondent indicated that his gross income “last year” was $32,000 (i.e. for 2013) and he listed no current income on pages 2 and 3. He attached copies of Notices of Assessment for 2008, 2009, 2010 and 2011.

[7] In his affidavit in support of the refraining order, the Respondent said his counsel had told him to pay child support to the FRO but he did not hear from the Office until August 2013 by which time the arrears were almost $9000.

[8] In an order dated March 6, 2014, Backhouse J. issued the refraining order on condition that the Respondent bring a motion to change the support order within 20 days.

[9] As required by the March 6 order, the Respondent brought a motion returnable April 2, 2014 in which he asked for an order to terminate the temporary child support order dated August 29, 2012 and to change the child support amount to “the best of my ability to pay on-going support”.

[10] Croll J. made a endorsement on August 5, 2014 in which she indicated that the Applicant asked for an adjournment because the Respondent had scheduled the date but her counsel was not available. It was adjourned to September 30, 2014 and the Respondent was ordered to complete the disclosure required in Schedule B to the August 29, 2012 order by September 19, 2104. Croll J. also ordered that the Applicant obtain two real estate appraisals of the value of the jointly owned condominium and provide them to the Respondent by September 19, 2014. She ordered the Respondent to pay costs forthwith in the amount of $200.

[11] In his September 24, 2014 affidavit, the Respondent said that, having been terminated in August 2013, he had been looking for work but could not find anything. He provided documents that indicate he had made efforts to obtain work as a web designer. In his September 2014 affidavit, he indicated that in July 2014 he had found work as a pizza deliverer and he provided a letter from the store owner that confirmed that he earned $11 per hour or $352 per week or $18,304 per year. He had done an analysis of bank records provided by his wife and pointed out that there were substantial deposits to her bank account that indicated that her income was significantly more than her reported income.

[12] The Respondent said again that in August 2013 he had had a falling out with his partner Mr. Grant. The Respondent attached as exhibit F his narrative summary of how he had fallen out with Mr. Grant that included his inability to access financial information about the corporation because he no longer had access to the jointly owned condominium. He also attached a copy of an email dated February 19, 2013 ostensibly from Mr. Grant to the Respondent complaining about his work on certain files and other issues.

[13] In his affidavit dated September 24, 2014 the Respondent indicated that in September 2014, the FRO had sent him a final notice of intention to suspend his driver’s license.

[14] In an endorsement I made on September 30, 2014, I adjourned the matter on consent to December 4, 2014 on the undertaking of counsel for the Applicant to ask FRO to not suspend the driver’s licence of the Respondent.

[15] In his notice of motion returnable March 5, 2015, the Respondent asked for an order terminating the temporary child support order dated August 29, 2012 and an order changing the child support amount to reflect his “current income of 2014” and asking that the arrears be reduced since he lost his job in September 2013. He also asked for changes to access and other parenting related issues.

[16] The Applicant brought a motion returnable March 5, 2015 in which she asked that the file be transferred to Newmarket because she had moved to Aurora in November; as well as an order dismissing his motion or an adjournment to a date following the then pending FRO enforcement proceeding. In her affidavit in support, the Applicant said that she had had to terminate her retainer because she could not afford a lawyer and that, at that point, she had paid to Legal Aid about $7000. She said that her lawyer had contacted FRO and had stopped her consent to suspend enforcement.

[17] In an endorsement I made dated March 5, 2015, I noted that each party was represented by duty counsel who had worked with the parties for several hours. The parties agreed to adjourn to June 18, 2015 and I made a consent order that the Applicant have temporary, without prejudice sole custody of the children; that effective April 1, 2015, the Respondent pay $300 per month for child support on a without prejudice basis; that by May 31, 2015 the Respondent provide his 2014 income information including his Income Tax Return, his Notice of Assessment and a recent pay stub; that the FRO temporarily suspend enforcement of child support arrears until the arrears were addressed on June 18, 2015; and that the access be changed to provide that the Respondent see the children as follows:

(a) Every other week, from Friday at 5:00 pm to Saturday at 7:30 pm with pick up at school and drop off at the Applicant’s place of work in Aurora;

(b) On the alternating week, from Friday at 5:00 pm to Sunday at 7:30 pm with pick up at school and drop off at the Applicant’s place of work.

[18] On June 7, 2015 the Respondent served a motion returnable June 18, 2015 in which he asked for an order “regarding child support arrears” and to “re-adjust arrear overpayment since September 2013”; and a final order and more access.

[19] The Applicant brought her own motion returnable June 18, 2015 in which she asked that the matter be transferred to Newmarket; for financial disclosure in accordance with the endorsement dated March 5, 2015; to increase child support payments; to impute income to the Respondent; to dismiss his motion regarding overpayment of arrears; an order for court costs and a fine of $5000 for non-disclosure and fraud; an order that FRO continue to collect arrears; and an order to change the access schedule to a “no contact “ exchange. She also asked for an order “to share all medical and school costs equally”.

[20] In her affidavit sworn June 12, 2015, the Applicant pointed out that the Respondent had not complied with the order made March 5, 2015 for disclosure. She insists that he had not been fired from Netvatise in September 2013. She attached copies of certified corporation profile reports that show the Respondent listed as an active Vice President and Director of Netvatise. She also attached a screen shot of the Netvatise webpage which indicated that as of June 11, 2015, the Respondent was still displayed on the Netvatise webpage and that in October 2014, the Respondent continued to promote Netvatise on his personal Facebook page and she included pictures of the postings dated October 1, 2014, October 7, 2014 and October 21, 2014 which she took on March 5, 2015. Based on information on the website, she said that between February 8 to 10, 2015, a company I refer to as BTDT (a client of Netvatise) held a conference at a named hotel in Atlanta, Georgia. She provided a copy of a photograph of the Respondent and Mr. Grant at Pearson Airport on the eve of the conference and she provided a screen shot taken from the Netvatise Instagram account and a printout of the conference on the BTDT website. She pointed out that at that time, the Respondent’s passport had been seized by FRO. She attached a copy of an email dated March 23, 2015 which was sent from the Netvatise email to her. There was no text in the message but there was a photo of her residence and she said few people knew her address.

[21] The Applicant asked that child support be increased based on income as follows:

I’m asking the courts to increase child support to $74,576 a year since Sept. 2013. The respondents last known Notice of Assessment was given in the court order dated August 29, 2012. At that time he earned $67,000 plus the $17,576 he earned working for 241 Pizza. Based on Dept. of Justice website the respondent should have been paying $1098.83 per month in support.

Or I am asking the courts to input [impute] a income for the respondent. I have included 3 job examples the respondent should get based on education and experience (Exhibit I). The salaries range from $75,000 - $90,000 a year. . . .

The respondent lives a life of luxury at the expense of our children. The respondent would rather purchase a BMW then give support. In Nov. the respondent travelled to the Dominican Republic for vacation which he initially denied. . . .

I have to work 7 days a week to support our children as the respondent continues “playing games”. I would like to spend every other weekend with our children. I am missing out on them growing up. I no longer wish to just see my children from 7:30 p.m. every night till 8:30 pm when they sleep, that is why I am asking for a full weekend to spend with our children.

[22] On June 18, 2015 I made an endorsement in which I noted that duty counsel had again worked with the parties but that the matter would be adjourned because, on June 12, 2015, the Applicant had served her own motion to increase child support. The Respondent insisted that he had not received it. With reluctance, I adjourned his motion to reduce the temporary order and her motion to increase the temporary order to August 20 and directed that all materials had to be served and filed by July 20 and that the Respondent comply with the disclosure required in the March 5, 2015 consent order and provide the following: letter of termination of employment; separation certificate (from 2013); 2012, 2013 and 2014 income tax returns and notices of assessment; details of all job search efforts.

[23] The Respondent delivered an affidavit sworn July 20, 2015 in which he indicated he was opposed to transfer of the file to Newmarket because he was living in Toronto and both of them were familiar with the Toronto court system. In accordance with my order dated June 18, 2015 he attached copies of documents he had retrieved from the “Legal Office for Netvatise” including a copy of his Resignation dated September 1, 2013 as Vice President and Director. He said that the lawyer for the company had told him that the corporation profile reports are not always updated and accurate. He provided a copy of an email dated July 6, 2015 from a lawyer Vanessa A. Ibe in which she confirmed she was the company lawyer for Netvatise Inc. and she enclosed a copy of his resignation as Vice-President and Director effective September 1, 2013. She also provided a copy of the Director’s Register and Officer’s Register indicating he had ceased to be Director and Officer effective September 1, 2013. The Respondent attached a “to whom it may concern” letter which is undated and appears to be signed by Mr. Grant confirming that the Respondent had not been employed since August 2013. In his affidavit the Respondent said that he remains on good terms with Mr. Grant and that he might be helpful to him in the future. He keeps his contacts on an internet social media website to keep in touch.

[24] The Respondent attached a copy of his Notice of Assessment for 2012, 2013 and 2014.

[25] In response to the Applicant’s allegation that he could get a job and income should be imputed to him, he referred to the records of all his job search and application efforts attached to his affidavit sworn September 24, 2014.

[26] In response to the allegation about the email showing the image of the home in which the Applicant said she resides, he attached an excerpt from a website Geowarehouse which appears to be an online service identifying a property owner which was not the Applicant and he said that she did not live at that address as the children had confirmed to him. He attached a report indicated that she was the owner of a different home and he said that the children had confirmed to him that they slept at that property. He was critical that she had not revealed the proper address for the children as required by the order dated March 5, 2015.

[27] He agreed that the photo of the home had been sent from his mobile phone’s default email address and he provided the following explanation:

The Netvatise email account setting was not completely deleted from my phone and that the company did not change any credential information since I left. I was also not aware that the account setting remained on my mobile device and has not been completely removed from my device.

[28] He attached images taken on his cell phone of the car licence plate of the Applicant, of a shirt that he purchased for his son (including the receipt for the purchase), and of the Applicant working in the salon. He also attached screen shots of messages from EC who he said was the Applicant’s boyfriend who was posting critical messages about the Respondent on the internet.

[29] The Respondent also insisted that the access schedule remain the same because he did not want to diminish the time for him to be with the children and he doubted that the Applicant would reduce her work schedule and would be available to see them. Indeed, he asked that he have the children every weekend from Friday at 5 pm to Sunday at 7:30 pm. He asked that the pick-up location continue to be the school but that he drop them off at their home. He also asked that the court order that the Applicant could not take the children out of the 100 km radius away from him.

[30] He attached a copy of a credit card statement that he said confirmed that his sister paid for his air line ticket to the Dominican Republic so he could accompany her on her birthday holiday and he provided images of the birthday dinner. He attached proof of payment for miscellaneous expenses for the children and images of activities he had done with the children.

[31] The Applicant’s affidavit sworn August 10, 2015 includes her request that the Respondent’s income for 2012 be set at $84,167 which reflected the dividend income plus 25% (to reflect the lower tax rate for dividends) and therefore he should be ordered to pay $1,221.98 per month for that year. For 2013, she relied on the gross up by 25% of the dividend income and asserted that his income should be taken as $71,651 for a monthly child support of $1,060.64. She said that the Respondent immediately went into arrears of child support notwithstanding demand letters from her lawyer that started in September 2012. She insisted that his income for 2014 was more than his Line 150 income and she pointed out that he had not submitted any paystubs or tax returns. She repeated her request that income be imputed to him as follows:

I am asking the courts to input (impute) a income on the respondent. The respondent claims he lost his job in September 2013. It has been almost 2 years and the respondent can only find a part-time job as a pizza driver? On June 18, 2015 the respondent also tells duty counsel he lost his pizza job and conveniently cannot produce pay stubs. The respondent is a college educated web developer with over 10 years experience and co-founder of a successful business. I have submitted Exhibit “E” a copy of the respondent’s resume. The respondent is so talented that the President of Netvatise still requires his expertise. Netvatise essentially has never been able to replace the respondent according to his own affidavit, submitted July 20, 2015.

I have submitted from the Government of Canada web page the average wage of a web developer in Toronto “Exhibit F”. Regardless of whether the respondent works for Netvatise or not the respondent is underemployed. The respondent should be earning in the “high” range of $43.27 per hour. Based on 40 hours a week, 5 days of work he should be earning $90,000 a year. I am asking the courts to input (sic) that amount based on the respondent’s age, education, experience and unique skill set.

[32] The Applicant also said that according to his Facebook posting he drives a 2011 BMW. And she said he continues to intimidate her into giving up on support. She provided a copy of an email in March 2014 in which he refused to sign the travel letter to allow her to take the children to Boston for her sister’s wedding unless she gave up on support. Prior to March 2014, she said that he had told her that if she did not give up on support he would file for bankruptcy and force her and the children out of the home. She provided a copy of a letter dated December 2, 2014 sent by her then lawyer to FRO confirming that the Applicant was in arrears in excess of $20,000 and that there was approximately $40,000 in the trust account of the lawyer who had acted on the sale of their jointly owned condominium. She had asked that FRO reinstate enforcement.

[33] The Applicant pointed out that the children would change schools in September and that the pick-up location should be changed to Rick Hansen Public School. She described the conflict over the transitions with the children that continued and she asked that the drop off location be in the lobby of the York regional police offices. She said that she intended to work only every other Sunday so she could spend time with the children.

[34] The Respondent had not responded to the Applicant’s August 10 affidavit, nor was it included in the timetable that he would do so. In his reply submissions, he said that he was no longer working for the pizza store but that, since late April 2015 he had been working full time at a golf course taking care of carts and monitoring golfers. He said that he earned $12.75 per hour and that his hours had varied but the job finished at the end of October, 2015. In response to my question, he agreed that the was overqualified to be a golf cart jockey but he wanted a final child support order before he got a job because he did not want to get a web design job that required concentration and then lose it because he would be distracted by the court proceedings. He also said that it was not easy to get a job in his field.

[35] During his oral submissions, the Respondent provided copies of the following:

(a) Notice of Intention to make a Federal Licence Denial Application dated December 11, 2014 in which the Director gave notice of intention to suspend the Respondent’s passport and “other federal licences”.

(b) Notice of Garnishment dated January 20, 2015 served on the lawyer who acted on the sale of the condominium, directing the lawyer to pay $20,559 to the Director. The Statement of Arrears attached indicated that as of February 4, 2015, the arrears totaled $21,643.

(c) Statements of earnings from the golf course job for the period ending July 12, 2015 and August 9, 2015 which confirmed his rate of $12.75 per hour and total earnings during each of those pay periods in the amount of $696 and $789.

[36] In her submissions, the Applicant pointed out that in my endorsements dated March 5 and June 18, I had directed the Respondent to make specific disclosure but he had not produced his 2014 income tax return, his 2014 notice of assessment or his separation certificate from August 2013. As indicated above, he had also not provided details of current job search efforts, relying instead on his affidavit sworn September 24, 2014.

Analysis

[37] Since the beginning of the enforcement and variation motions, each party has had counsel from time to time. However, even with the assistance of duty counsel, the lack of continuous counsel has meant that there has been unfortunate delay between April 2014 and September 2015.

[38] As indicated above, on March 5 and June 18, both parties had been assisted by duty counsel. On August 20 neither had counsel. On June 18, I had directed that a court interpreter be provided for the Applicant because the issues were child related. The interpreter did not show up on August 20. The written materials provided by the Applicant were quite thorough and she provided brief and helpful oral submissions, particularly on the failure of the Respondent to comply with recent disclosure orders. Also as indicated above, during his submissions, I allowed the Respondent to provide copies of documents related to enforcement by FRO and garnishment of approximately $20,000 of the proceeds of sale of the former jointly owned condominium. This was in relation to his request that the arrears be vacated. Although not in an affidavit, I allowed him to provide the documents to me because I needed to have a statement of arrears and I saw no prejudice to the Applicant if I received such documents because the evidence is that she was pursuing enforcement through the DRO.

[39] This is a case where legal counsel would have assisted the parties (particularly the Applicant who was challenged to make oral submissions in English) and would have considerably assisted the court in the hearing of the motion.

A. Vary temporary order dated August 29, 2012 to reduce child support and vacate arrears

[40] The court has authority to vary a temporary order. Other than two case conferences, it appears that the legal proceedings have stalled at the stages of enforcement and variation of a temporary order dated August 29, 2012 that was first launched in April 2014. The court is reluctant to vary a temporary order and indeed discourages such variations in the interests of having the action proceed to settlement or trial.

[41] In this case, the central questions are as follows: what has been the income of the Respondent since August 2012; and should income be imputed to him.

[42] According to the Notices of Assessment, the following has been the income of the Respondent:

2009
2010
2011
2012
2013
2014

Total earnings T4
$30,966
$31,421
$12, 451
$ 3,000
$ 8,400
N/A

Taxable dividends
N/A
N/A
$43,000
$64,093
$48,500
N/A

Gross rental income
$11,040
$ 3,000
N/A
N/A
N/A
N/A

Net rental income
-$3,605

• $3,635
  N/A
  N/A
  N/A
  N/A

Gross business income
N/A
$9,500
N/A
N/A
N/A
N/A

Net business income
N/A
$ 236
N/A
N/A
N/A
N/A

Line 150
$27,361
$28,061
$55,451
$67,334
$57,321
$ 8,110

[43] The Respondent asks that, in effect, he be relieved of the obligation to pay child support based on the Guidelines. He takes the position that he was unemployed from August 2013 until he started the pizza job where he earned $18304 annually. He hasn’t advised when he stopped the pizza delivery job but he started the golf course job in April where his total earnings were $696 and $789 per week.

[44] I do not accept the Respondent’s evidence as to his actual earnings for the following reasons.

[45] First, I am not persuaded that the evidence that he was fired from his job in August 2013 is credible. He had been working with Mr. Grant since 2008. He paid no child support between August 29, 2012 and August 2013 when he received the demand from FRO. In light of the evidence that her lawyer had demanded compliance, I do not accept his evidence that he could not pay child support because FRO would not accept payments. Payors always have the option to pay the support recipient directly or indirectly through her lawyer. I infer from the timing of the FRO demand and the alleged firing, that it is more likely than not that he orchestrated his termination, if indeed he was terminated, so as to avoid making child support payments. Notwithstanding the order I made dated June 18, 2015, he has yet to provide a copy of his separation certificate. He has remained friends with the person who fired him. If that is the case, he could have asked Mr. Grant to sign an affidavit rather than providing a letter, which cannot be verified. He has continued to have an association with Netvatise since then which is demonstrated by the website and the corporate records. His explanation for why the Netvatise email account setting had not been deleted is not believable.

[46] Second, the Respondent has not explained how he has maintained himself. The only financial statement relevant to this motion is dated February 28, 2014 and reflects expenses of $2197 per month but no income. His total car expenses are $1217 per month which far exceeds what he was required to pay in child support and what he eventually did pay. There is a suggestion that he lived in the home of his sister who assisted him but other than a copy of her credit card statement which allegedly confirmed that she paid for his airfare for the trip to Dominican Republic, there is no corroboration for how he managed to meet his day to day expenses from August 2013 to the present.

[47] Third, he admitted that he is underemployed. He takes the position that the legal proceedings distracted him from concentrating on a web development job and until the final order was made he did not intend to seek employment that reflected his skills. Indeed, he has produced no proof of efforts to obtain employment since his affidavit sworn September 24, 2014.

[48] Fourth, I am not satisfied that he is only working at the golf course. The address he provided on the counsel slip, to which this endorsement will be sent, is Kevin@Trandevelopment.com from which I infer that he has a business which he probably operates and which he has not disclosed.

[49] Fifth, he did provide confirmation of his income as a pizza deliverer, however, he changed from that job to the golf course job in April 2015 yet did not report that in his affidavits filed since then and only disclosed it during his reply submissions. Notwithstanding his obligation pursuant to the Child Support Guidelines, the consent order I made dated March 5, 2015 and the order I made dated June 18, 2015, he has yet to disclose his tax returns and the 2013 separation certificate. The most recent sworn financial statement is dated February 28, 2014. The Respondent has failed to fulfill basic disclosure obligations. Given the failure to disclose and the lack of an affidavit from Mr. Grant to corroborate the termination of employment, I conclude that the Respondent’s evidence is not reliable.

[50] The court is generally reluctant to make findings of credibility on the basis of affidavit evidence that is in conflict. However, on the record before me there is ample evidence from which I can conclude that the court ought not to rely on his stated income. The Respondent has the burden of proving that he has experienced a material change in circumstances since the temporary order was made dated August 29, 2012. He has failed to do so. His motion to retroactively vary the temporary order and vacate all of the arrears is dismissed. It follows that his motion to stay enforcement by FRO is dismissed.

B. Vary temporary order dated August 29, 2012 to increase child support

[51] That leads to the question whether I should impute income to him, either based on the dividend income that is reflected in his notices of assessment for 2012 and 2013 or on the basis of Government of Canada information.

[52] While the evidence marshaled by the Applicant is strong, I am not persuaded that I should impute income to the Respondent on a motion to increase retroactively the child support order made on August 29, 2012. Instead, I conclude, for purposes of this motion, that the Respondent’s income should be treated as no less than $55,000 for 2012, 2013, 2014 and up to this point in 2015. I leave it to further negotiations or the trial judge to determine whether an amount greater should be accepted for purposes of a retroactive increase.

[53] As indicated in paragraph 19 above, the Applicant has recently asked that an order be made that all medical and school costs be shared equally. She provided no details of such costs. I am reluctant to make an order that shares such costs without also deciding which costs are special or extraordinary expenses pursuant to s. 7 of the Guidelines.

C. Vary interim order dated March 5, 2015 as to access

[54] For a long time, the Respondent has enjoyed access for some or all of every weekend. The Applicant now reasonably asks that the weekends be shared more equally and that it is in the best interests of the children that they have the opportunity to see her for more than the period from after dinner to bedtime. Assuming the Respondent complies with the order for temporary child support, the Applicant should not be under such financial pressure and she will be able to have more of the alternate weekends to spend with the children.

[55] Since it was not raised before me, I leave it to further negotiations or a trial judge to determine whether the children have reached the age where access ought to be arranged during the school week as well as the request by the Respondent for a mobility restriction.

[56] The changed school will continue to be the pick-up location. I do not agree with the Applicant that the return location should be the local police station. That step is not required in this case. The children will be returned to 97 Starr Crescent in Aurora which is the address that she says is her residence. I prefer her evidence over what the Respondent says the children have confirmed to him as to their residence.

D. Transfer the proceeding to Newmarket

[57] I agree that the action should be transferred to Newmarket, which is in the Central East region in which the children live. While there is a temporary order for custody, access continues to be an issue and it can most appropriately be decided in that location as anticipated by Rule 5 of the Family Law Rules.

[58] I anticipate a delay while the order is signed and entered and the file is sent to Newmarket and the parties obtain a date in Newmarket. I encourage the Applicant to arrange a case conference in Newmarket to obtain an order that establishes next steps.

E. Costs

[59] The Applicant has been successful in opposing the Respondent’s motion to retroactively vary the temporary child support order and to vacate the arrears. While she has not been successful in her motion to increase, it was a reasonable request for her to make given the record that she assembled. I have deferred that issue to the trial judge. Overall, the Applicant was more successful than was the Respondent.

[60] The Applicant’s evidence is that she has paid Legal Aid $7000 as a result of the legal proceedings and that she had to act without counsel because she could no longer afford it. I do not intend to require written submissions as to costs. Without creating additional delay that will prevent the file from moving to Newmarket and without putting the Applicant to that expense, I will make an order for a modest amount of costs, leaving open the possibility that she might seek at trial further costs of these motions after providing full details of costs incurred and paid and any offers to settle that might be relevant.

[61] As indicated in paragraph 19 above, the Applicant also asks that the court make an order that the Respondent pay a fine of $5000 for non-disclosure and fraud. I am not prepared to entertain that request at this motion and adjourn it to the trial judge.

ORDER TO GO AS FOLLOWS:

[62] The Respondent’s motion to retroactively vary the child support contained in the temporary order dated August 29, 2012 is dismissed.

[63] The Respondent’s motion to vacate the child support arrears accumulated pursuant to the order dated August 29, 2012 is dismissed.

[64] The Respondent’s motion to stay enforcement by the Director, Family Responsibility Office, of the temporary order dated August 29, 2012 is dismissed.

[65] The Applicant’s motion to transfer this proceeding to Newmarket is granted.

[66] The Applicant’s motions (a) to retroactively increase the temporary child support; (b) to establish an equal sharing of medical and school costs; and (c) for an order that the Respondent pay a fine of $5000 are adjourned to the trial judge.

[67] The Respondent’s motion for a mobility restriction is adjourned to the trial judge.

[68] The order for stay of enforcement contained in the endorsement dated March 5, 2015 which was outstanding until June 18, 2015 is set aside. The Director is at liberty to pursue any enforcement steps available.

[69] The Director, Family Responsibility Office is ordered to pay to the Applicant such amount as is in the Director’s possession, power or control pursuant to the Notice of Garnishee addressed to Trang Nguyen Law Office – Tang Trang Nguyen In Trust dated January 20, 2015 such amount to be credited to arrears accumulated pursuant to the order dated August 29, 2012 and credited to any amounts owing by the Respondent pursuant to this order.

[70] If necessary to enforce this order, Support Deduction Order to issue.

[71] The temporary access pursuant to the endorsement dated March 5, 2015 is deleted and the following is substituted:

(a) For the weekend commencing on Friday, October 2, 2015, the Respondent shall not have access. The children shall remain with the Applicant for the entire weekend.

(b) Commencing on Friday October 9, 2015, the Respondent shall have access with the children from Friday with pick-up at the Rick Hansen Public School and returning on Sunday, October 11, 2015 at 7:30 pm to 97 Starr Crescent, Aurora and on alternate weekends thereafter.

[72] With respect to his motion to reduce the temporary order dated August 29, 2012 and to vacate the arrears and with respect to the Applicant’s motion to retroactively increase the temporary order the Respondent shall pay to the Applicant costs in the amount of $2000 without prejudice to the Applicant claiming an increased amount at trial. The Director, Family Responsibility Office shall enforce those costs as support. Unless the Respondent provides proof that it was paid, the Director, Family Responsibility Office shall enforce the costs order made by Croll J. dated August 5, 2014 in the amount of $200 as child support.

[73] Court staff are directed to assist the Applicant in expediting the signing and entering of this order and the Support Deduction Order and in taking the steps to transfer the file to Newmarket.

[74] If the Respondent takes any step in the proceeding once the case is transferred to Newmarket, he shall provide, with documents in connection with such step, a sworn Form 13.1 attached to which are copies of his tax returns for 2008, 2009, 2010, 2011, 2012, 2013, and 2014.

[75] The Applicant may have this order signed and entered, and, if necessary, the Support Deduction Order, without approval from the Respondent.

Kiteley J.

Date: September 21, 2015