Superior Court of Justice - Ontario
CITATION: Jackson v. Montoya, 2016 ONSC 1021
COURT FILE NO.: FC-09-2420-2
DATE: 2016/02/11
RE: CAMERON JACKSON, Applicant (Moving Party)
AND
ROSSANA MONTOYA, Respondent
BEFORE: M. Linhares de Sousa J.
COUNSEL: Cameron Jackson, Unrepresented, via telephone Rodney Cross, counsel for the Respondent
HEARD: February 9, 2016 (at Ottawa)
ENDORSEMENT
[1] This is an application brought by Mr. Jackson under the Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13, seeking to terminate his obligation to pay both spousal support and child support for one child in accordance with the existing order of Justice McLean, dated December 21, 2010, based on his change of circumstances, namely, that as of January 2015 he has lost his employment. Mr. Jackson lives in California, U.S.A.
[2] In his application Mr. Jackson has raised a number of issues that are deemed to be irrelevant and inappropriate as part of this application, such issues as the date of separation, property issues and prenuptial agreement, to mention a few. Mr. Jackson, by raising these issues, is seeking to re-litigate court proceedings of five years ago. He had an opportunity at that time to respond but chose to let the matters go on default and did not respond to contempt proceedings although personally served with those proceedings.
[3] Mr. Jackson claims that he was not served with notice of past Court proceedings. However, that is in conflict with the documentation before the Court and contrary to subsequent action by Mr. Jackson that demonstrates that he was aware of those Court proceedings and orders. Mr. Jackson is taken to have been properly served with all previous Court proceedings and orders.
[4] There is an outstanding warrant for the arrest of Mr. Jackson because of his ignoring previous orders of this Court. On the consent of both parties, it is ordered that the outstanding bench warrant issued against Mr. Jackson is rescinded.
[5] Ms. Montoya concedes and it would appear, on the evidence, to be the case that Mr. Jackson at this time, due to his current unemployment and being without any income as of the end of 2015, is not able to pay spousal support and has a greatly diminished ability to pay child support for the child, Stephen, who has been in the care of Ms. Montoya in Canada since the parties separated and who is now 11 years old.
[6] Mr. Jackson is currently looking for employment. He is the sole financial support of his current family, having remarried to a spouse who does not work. Up until his loss of employment in 2015, Mr. Jackson’s income tax returns indicated that he had substantial income and was able to pay the outstanding support order against him. Nonetheless, he has chronically been in arrears of those support obligations. His lack of good faith in meeting all of his support obligations in the past when he was in a position to do so does not, in my view, justify erasing all of the outstanding arrears. Mr. Jackson will likely have income in the future and once again be able to pay towards those arrears.
[7] I accept Mr. Cross’ calculation of the discount of arrears based on Mr. Jackson’s change of circumstances.
[8] With respect to the existing order of support I make the following order:
Spousal support, effective February 15, 2015, is suspended until further order of the Court.
Child support for the child, Stephen, is reduced to $250 per month effective February 15, 2015.
As of today’s date the balance of arrears are fixed at $31,078 and continue to be due and owing.
Mr. Jackson is required to serve and file his 2015 income tax return by June 1, 2016, and thereafter his annual income tax returns by June 1st of every subsequent year.
Mr. Jackson is to serve and file proof of his 2016 income to date.
Mr. Jackson is to notify Ms. Montoya of any change in his employment circumstances as soon as such a change occurs.
[9] Mr. Jackson seeks child support, retroactively and ongoing, for the adult child of the union, Nathan, who has been living with him in the United States since 2010. There has never been any application made by Mr. Jackson for support for this child, although Mr. Jackson maintains that the issue was raised prior to these proceedings. There is no indication that that has been the case.
[10] There is a dearth of information regarding Nathan’s circumstances. It would also appear that Nathan has been in direct contact with his mother regarding financial support should he wish to pursue further education. Given the age of Nathan, the absence of proper and complete information regarding Nathan’s circumstances, his own resources, including even of whether he is enrolled in any education program at all, I decline to make any order of support for Nathan at this time.
[11] Mr. Jackson has also raised the issue of access to his son Stephen. Since moving to the United States, Mr. Jackson has not made any application to define or regularize his contact with his younger son Stephen. It appears that long periods of no contact have taken place. When given an opportunity to visit with Stephen last summer in the United States when he attended his brother Nathan’s graduation with his mother, Mr. Jackson chose not to do so. There has been some telephone access with Stephen that Mr. Jackson has found unsatisfactory. There does not appear to be evidence to support the conclusion that Ms. Montoya has prevented Mr. Jackson from visiting with Stephen if he made the effort to do so.
[12] Needless to say, there is an absence of evidence relating to this issue and what access would be in Stephen’s best interests. Without that necessary evidence, I decline to make an access order, concerning the child Stephen at this time.
[13] The last issue is costs. There is an outstanding costs award against Mr. Jackson of $500 granted by Madam Justice Trousdale, dated October 5, 2015. There have been other outstanding costs awards against Mr. Jackson that are presently rolled into the amounts being collected by FRO. On this motion Mr. Jackson was not totally successful in the result. On consent he was granted some of the relief he sought. He did raise a number of irrelevant and unsuccessful issues to which Ms. Montoya’s counsel had to address in his material and submissions. I am persuaded that Mr. Jackson ought to contribute to a portion of Ms. Montoya’s costs. He could reasonably have anticipated such costs given the history of this litigation. I order him to pay costs that I fix in the amount of $4,000, all inclusive, payable forthwith. Mr. Jackson is prohibited from bringing any further applications in this Court without him having satisfied all outstanding costs awards against him.
M. Linhares de Sousa J.
Released: February 11, 2016
CITATION: Jackson v. Montoya, 2016 ONSC 1021
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: CAMERON JACKSON, Applicant (Moving Party)
AND
ROSSANA MONTOYA, Respondent
BEFORE: M. Linhares de Sousa J.
COUNSEL: Cameron Jackson, Unrepresented
Rodney Cross, counsel for the Respondent
ENDORSEMENT
M. Linhares de Sousa J.
Released: February 11, 2016