Citation: Turk v. Ontario (Family Responsibility Office), 2016 ONSC 1106

COURT FILE NO.: FS-14-19285-0001

DATE: 20160216

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Stuart Bernard Turk, Applicant

AND:

Director, Family Responsibility Office

BEFORE: Kiteley J.

COUNSEL: Heather Hansen, for the Applicant

Fatima Amaral, for the Respondent

Katharine Rajczak, for the Applicant Jennifer Sandra Turk in FS-14-19285

HEARD: February 4, 2016

ENDORSEMENT

[1] This is a motion by Mr. Turk for the following relief:

(1) An order that the Director of the Family Responsibility Office refrain from directing the suspension of the Respondent, Stuart Turk’s, driver’s license for six months pursuant to s. 35(1) of the Family Responsibility and Support Arrears Enforcement Act;

(2) An order extending the time for the order to refrain for a period of up to three months or until the Respondent’s motion to address prospective and retroactive support is heard by the Honourable Justice Kiteley, whichever is sooner, pursuant to s. 35(21)(a) of the Family Responsibility and Support Arrears Enforcement Act;

(3) An order suspending enforcement of the support arrears currently owing under the Temporary Order of Justice McWatt dated May 5, 2015, pursuant to s. 17(1)(a) of the Divorce Act, pending the hearing of the Respondent’s motion to address prospective and retroactive support;

(4) Costs on a full recovery basis.

[2] Counsel for Ms. Turk was not served with the motion because she is not a party to this proceeding 0001. On February 2, 2016, counsel for FRO served its factum on Ms. Turk’s counsel and as a result of the relief sought in item (3) above, counsel for the Ms. Turk attended at this motion and provided a responding affidavit.

Background

[3] In an endorsement released May 20, 2015[^1] Justice McWatt ordered Mr. Turk to pay temporary child support and temporary spousal support “in accordance with the terms of the Separation Agreement at $10,000.00 per month commencing May 1, 2015, payable on the first day of each month”. She also made an order that Mr. Turk “shall immediately make a without prejudice payment of $63,150.00 plus applicable interest to the Applicant, Jennifer Sandra Turk, representing the shortfall in support for the period January 2013 to April 30, 2015, pursuant to the terms of the Agreement of April 2010. This payment shall be non-taxable to the Applicant and non-deductible to the Respondent.” It is common ground that counsel had not scheduled sufficient time for the hearing of the motions on that occasion and for that reason, attached to the endorsement and the signed and entered order there is a list of motions that were outstanding which would be the subject of a scheduling order at a case management conference. That order was taken out and is dated July 29, 2015.

[4] In the evidence before McWatt J., counsel for Ms. Turk had provided a table that added up to $63,150.00 in arrears. His counsel did not object to the calculation although counsel did object to the order for arrears. Mr. Turk paid that amount. However, he decided that he had overpaid by $3,000 because, “according to the terms of the Separation Agreement”, he was entitled to credit for made car lease payments directly to the lessor. As a result, he paid $7000 for the support payment due on May 1, 2015.

[5] Ms. Turk submitted a Statement of Arrears dated September 30, 2015 stating that Mr. Turk was in arrears of $3,000 for the May 1, 2015 payment. The Director’s Statement of Arrears dated January 29, 2016 indicates that Mr. Turk is in arrears of periodic payments the sum of $3,000. The Director sent a First Notice to Suspend Driver’s Licence dated January 12, 2016 which indicated that if he failed to pay $3,000 in unpaid support then immediately after February 21, 2016, the Director would direct the Registrar of Motor Vehicles to suspend his driver’s licence.

[6] The First Notice advised Mr. Turk that one of three actions would be required prior to February 21, namely: pay off all of the arrears; enter into a payment plan; obtain a refraining order. Mr. Turk seeks a refraining order.

[7] This motion is but one of many rounds of activity that have been the subject of endorsements in this court: in an endorsement dated July 28, 2014 Justice Darla Wilson[^2] made an order requiring the Respondent to deliver a properly executed Form 13.1 Financial Statement with supporting documentation and other documents; McWatt J. made the endorsement referred to above; my endorsement dated July 3, 2015[^3] arising from the case conference in which I ordered that the priority was the Respondent’s motion for summary judgment which I scheduled for September 3, 2015; my endorsement dated September 30, 2015 dismissing the motion for summary judgment[^4]; and my endorsement released February 2, 2016[^5] arising from case conferences in October and November 2015.

Refraining Order

[8] A motion for a refraining order pending a variation hearing requires the applicant to make out a prima facie case for variation and to come before the court with “clean hands”.[^6] Counsel for Mr. Turk argues that he has met both requirements while counsel for the Director takes the position that he has not met either of them.

[9] The parties signed a separation Agreement dated April 26, 2010. On March 11, 2014, the Application was issued in which the Applicant seeks, amongst other things, a declaration that the Separation Agreement is null and void. The grounds on which the Applicant seeks relief are lack of disclosure and duress. The Respondent did not file an Answer. In May 2014, his counsel served a motion for summary judgment in which he sought an order dismissing the entire Application. Subsequently, the notice of motion was amended to ask only that the claims related to the separation agreement be struck. I heard submissions on that motion on September 3, 2015 and, as indicated above, dismissed it. I made an order that, by October 30, 2015, Mr. Turk file an Answer, Form 13.1 and Form 13A.

[10] Counsel attended a case conference on October 2, 2015 and the endorsement released February 2, 2016 reflects the lack of consensus at that time as to how motions would proceed. At paragraph 18, I made an order that neither party could bring a motion to vary the temporary support order and I set a tentative date for trial in September 2016. Mr. Turk did not have that endorsement when his counsel prepared the motion before me.

[11] On the issue of making out a prima facie case, counsel for Mr. Turk points to evidence of Ms. Turk in which she admits that he did pay indirectly the amounts of $1500 in two months in early 2014 (for a total of $3000). On the basis of the admission, counsel for Mr. Turk takes the position that he has made out a prima facie case for a variation. I agree with that submission.

[12] On the issue of “clean hands”, counsel for Mr. Turk points out that he had brought his own motion to reduce the support he was paying; that his motion was not fully argued; that in the endorsement dated July 3, 2015 I had not permitted him to renew the motion but instead had established that the motion for summary judgment should be the priority; and that in the most recent endorsement, I had made the order that neither of them could bring on the motion to vary support. Counsel argued that he had acted appropriately in pursuing the claim that he had overpaid and was entitled to claim the set-off in the meantime. During submissions counsel for Mr. Turk offered to put $3,000 into her trust account awaiting the outcome of the trial at which time the issue of set-off would be resolved.

[13] I do agree that Mr. Turk did have a motion before the court which had included an order that he receive credit for support overpayments in 2014 and 2015 and he understood that at some time his motion would be heard. I overlook the fact that at the time he brought that motion, he had not filed an Answer and therefor was not permitted to pursue any motion except for the motion for summary judgment. I do not see that that was raised before Justice McWatt and, since he did serve and file an Answer in late October, 2015, he has had the right to pursue interim motions since then. However, as a result of my endorsement dated February 2, 2016, that motion will not be heard.

[14] But I am not satisfied that having had a motion before the court constitutes “clean hands”. He has had the ability to pay the $3,000 as is evident by his counsel’s suggestion that he put those funds into her trust account. While Ms. Turk admitted that he had made indirect payments totaling $3,000, she did not admit that he was entitled to a set-off of $3,000 from the periodic support. Mr. Turk did not have the right to unilaterally decide not to comply with the order requiring payment of $10,000 per month nor did he have the right to create his own set-off, particularly when it was set off against periodic support. McWatt J. made a finding that the arrears were $63,150. That order was released May 20, 2015 and was signed and entered on July 29, 2015. He did not appeal the order.

[15] As indicated above, the order made by McWatt J. for the payment of $63,150 was without prejudice, meaning that at some point, the entire issue of over or underpayment would be addressed. Mr. Turk was not prepared to wait for that point and instead, took matters into his own hands which is inconsistent with the “clean hands” principle.

[16] What is interesting to me is how much effort (and therefor legal fees) has been expended in dealing with this $3,000. Many letters between counsel; extensive correspondence with FRO; and this motion. No doubt the legal fees that the Respondent has incurred as well as the resources of the public through the FRO (administrative and legal) not to say more of our limited judicial resources, have been expended on such a modest amount of money. It demonstrates to me, yet again, that every aspect of this case will continue to be an uphill and expensive battle.

[17] Mr. Turk has failed to make out the two requirements and accordingly, he is not entitled to a refraining order. The only way he can avoid the licence suspension is if he pays the amount outstanding, namely $3,000.

[18] Although the notice of motion sought costs, Ms. Hansen agrees that no costs are recoverable from the FRO and FRO does not seek costs from him.

Order Suspending Enforcement

[19] I turn to the other aspect of the motion at item 3 in paragraph 1 above. A motion seeking suspension is not within the jurisdiction of FRO and ought not to have been included in the motion. Understandably, counsel for Ms. Turk responded and, on short notice, served an affidavit and attended at the hearing of the motion. At the outset, I indicated that I would not hear that aspect of the motion. Ms. Turk was entitled to consult with counsel and to have her counsel attend. Under such circumstances, it would be reasonable for Ms. Razcjak to seek costs. Instead of calling for written submissions for what will be a modest amount, I will fix the costs.

ORDER TO GO AS FOLLOWS:

[20] The motion is dismissed.

[21] No costs as between Mr. Turk and FRO.

[22] Mr. Turk shall pay costs to Ms. Turk fixed at $1,000 payable by March 16, 2016.

Kiteley J.

Date: February 16, 2016

[^1]: 2015 ONSC 3165 [^2]: 2014 ONSC 4490 [^3]: 2015 ONSC 4294 [^4]: 2015 ONSC 5845 [^5]: 2016 ONSC 828 [^6]: Caruk v. Remus 2014 ONSC 7224