COURT FILE NO.: FS-15-24-00 DATE: 2016 04 26
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: June Margaret Hutcheon v. Leo Bissonnette and Ministry of Community and Social Services
BEFORE: Bloom, J.
COUNSEL: Andrea S. Clarke, for the Applicant D. Ian Kilgour, for the Respondent, Leo Bissonnette Sumita Pillay-Dason, for the Respondent, Ministry of Community and Social Services
HEARD: March 7, 2016 and April 15, 2016
E N D O R S E M E N T
I Introduction
[1] The Respondent, Bissonnette, brought a motion to change a final order to rescind all child support arrears. On July 7, 2015, Justice Price ordered trial of the issue of (a) whether a denial of access by the Applicant; (b) a delay in enforcement of the orders; (c) a representation to Mr. Bissonnette that Ms. Hutcheon was not pursuing the claim for child support or arrears, or that there were no arrears owing; or (d) the fact that the child in question was no longer “a child of the marriage” dependent on her parents and entitled to child support, should preclude an order enforcing the arrears. While Justice Price referred only to the final order for child support, the parties made submissions on the assumption that both the relevant interim and final orders were subsumed by the trial of the issue.
[2] I have heard the trial of the issue. These are my reasons and ruling.
II The Facts
[3] The Applicant and the Respondent, Bissonnette, began a relationship in 1981. One child was born of the relationship on November 17, 1983. That child was named Alice Bissonnette. Her last name has subsequently been changed to Hutcheon.
[4] On June 9, 1989, Master Schreider ordered Mr. Bissonnette to pay the Applicant $350 per month child support.
[5] On January 9, 1990, Justice Houston pursuant to minutes of settlement made a final order that the Applicant have custody of Alice. He further ordered that Mr. Bissonnette have access to Alice on alternate weekends from Saturday at 4:00 p.m. to Sunday at 7:00 p.m.; and that he have liberal telephone and correspondence access, and other access on reasonable notice, the times for which were to be agreed upon by the parties. He also ordered that Mr. Bissonnette pay to the Applicant support for Alice of $350 per month.
[6] There is a conflict in the evidence as to whether Mr. Bissonnette made some cash payments of child support to the Applicant. In any event the two orders in question were assigned to the Respondent, Ministry, as a result of the fact that the Applicant was receiving social assistance. Further, the two orders in question were enforced by the Family Responsibility Office (hereinafter “FRO”) and its predecessor. FRO received through a Support Deduction Notice to the federal government one payment in August 1990 of $1,356.22 and $6.76 in August of 1992 which was applied towards the arrears due to the Ministry on the assignments.
[7] The total amount of arrears owed by Mr. Bissonnette under the two support orders including interest, likely exceeds $ 200,000, of which $13,930.61 is owed to the Ministry under the two assignments.
[8] The Applicant and Alice moved to Scotland in 1993 where the Applicant had family. They returned to Ontario in 1999. Mr. Bissonnette was not given notice of the move by the Applicant, nor a contact address in Scotland; he had no contact with Alice during that period. Upon the return to Ontario of the Applicant and Alice, there was some contact between Mr. Bissonnette and Alice.
[9] Mr. Bissonnette received a letter dated November 26, 2013, from FRO which included a statement that the child support arrears as at that date were zero. That statement was in error.
III Governing Legal Principles
[10] The relevant statutory provisions are the following provisions of the Family Law Act, R.S.O. 1990, c. F.3:
Obligation of parent to support child
- (1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so. R.S.O. 1990, c. F.3, s. 31 (1) ; 1997, c. 20, s. 2.
Idem
(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control. R.S.O. 1990, c. F.3, s. 31 (2) .
Application for variation
- (1) An application to the court for variation of an order made or confirmed under this Part may be made by,
(a) a dependant or respondent named in the order; (b) a parent of a dependant referred to in clause (a); (c) the personal representative of a respondent referred to in clause (a); or (d) an agency referred to in subsection 33 (3). 1997, c. 20, s. 6.
Powers of court: child support
(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,
(a) discharge, vary or suspend a term of the order, prospectively or retroactively; (b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and (c) make any other order for the support of a child that the court could make on an application under section 33. 1997, c. 20, s. 6.
Application of child support guidelines
(2.2) A court making an order under subsection (2.1) shall do so in accordance with the child support guidelines. 1997, c. 20, s. 6
[11] In DiFrancesco v. Couto (2001), 2001 ONCA 8613, 56 O.R. (3d) 363 at paragraph 23 the Ontario Court of Appeal set out the following general principles to be applied on a matter of the kind before me:
The decision to rescind arrears involves consideration of a variety of factors. In Filipich v. Filipich (1996), 1996 ONCA 1294, 26 R.F.L. (4th) 53, 92 O.A.C. 319, this court noted that some of the factors a court may consider are set out in Gray v. Gray (1983), 1983 ONSC 4531, 32 R.F.L. (2d) 438 (Ont. H.C.J.) at p. 441. They are as follows:
(1) the nature of the obligation to support, whether contractual, statutory or judicial; (2) the ongoing financial capacity of the respondent spouse; (3) the on-going need of the custodial parent and the dependent child; . . . (4) unreasonable and unexplained delay on the part of the custodial parent in seeking to enforce payment of the obligation, tempered, however, in the case of child support with the fact that such support obligation exists for the child's benefit, is charged with a corresponding obligation to be used by the custodial parent for the child's benefit and cannot be bargained away to the prejudice of the child; (5) unreasonable and unexplained delay on the part of the respondent spouse in seeking appropriate relief from his obligation; and (6) where the payment of substantial arrears will cause undue hardship, the exercise of the court's discretion on looking at the total picture, weighing the actual needs of the custodial parent and child and the current and financial capacity of the respondent, to grant a measure of relief, where deemed appropriate.
[12] In Attard v. Attard, 2010 ONSC 810 Justice Ricchetti of the Ontario Superior Court of Justice at paragraphs 26-29 considered the unique circumstances which may justify an order to rescind arrears of child support:
[26] I recognize that s. 31 of the Family Law Act provides:
- (1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so.
[27] Therefore, it is the obligation of every parent to financially support their children. This obligation is not conditional or dependent on access by the parent obliged to support his or her children. Many courts in Ontario have stated this obligation is absolute. See Phiroz v. Mottiar, 1995 ONCJ 7037, [1995] O.J. No2324 (Ct. J.) at paragraphs 47-49 and Ferguson v. Charlton, 2008 ONCJ 1, [2008] O.J. No. 486 (Ct. J.) at paragraph 92.
[28] However, that is not to say there are not unique circumstances where the termination of the child support is an appropriate or the only remedy available to the court, particularly where the children of the marriage are over 16 years of age and there exist adequate arrangements for their financial maintenance. See Plett v. Murphy, [2003] O.J. No 1673 (S.C.J.), Lawrence v. Mortensen, 2000 ONSC 22525, [2000] O.J. No. 1578 (S.C.J.), Ferguson v. Charlton 2008 ONCJ 1, [2008] O.J. No. 486 (Ct. J.) at paragraph 92 and Westead v. Bainbridge, 1995 ONSC 7038, [1995] O.J. No. 93 (Ct. J.) at paragraph 22.
[29] The common thread in these cases is that while child support is absolute, it may be reduced or eliminated due to non-access by the parent paying child support only in extreme or unique circumstances such as where the custodial parent has sufficient assets and income and the children will not be deprived of appropriate support and, generally, only where the children are older.
[13] In Turecki v. Turecki, 1989 BCCA 250 the British Columbia Court of Appeal elaborated at p. 9-10 on the circumstances when denial of access will be relevant to the decision on whether to rescind arrears:
In the present case the custodial parent deliberately left the jurisdiction and kept knowledge of her whereabouts from her former husband during the child's formative years, thereby denying them both the benefit of any type of a father-son relationship. It is little wonder that the child, still under the influence of his mother, now refuses to see his father.
In Frame v. Smith (1987), 1987 SCC 74, 9 R.F.L.(3d) 225 (S.C.C.) Madam Justice Wilson stated at p. 232-233:
"The award of a court order of custody to one parent and access to the other is premised on the existence of a relationship between the custodial parent and the child and another relationship between the non-custodial parent and the child, the maintenance and development of both relationships being considered by the court making the order to be in the best interests of the child.
...it clearly cannot be in the best interests of children to have custodial parents defy with impunity court orders designed to preserve their relationship with their non-custodial parents. The order for access to the non-custodial parent would not have been made had it not been found by the trial judge to be in the child's best interests. Accordingly, the custodial parent who denies access to the other parent is sacrificing the child's best interests as so found to his or her own selfish interests..."
As part of Mrs. Turecki's overall plan to prevent any contact between her husband and their son, it was necessary that she not disclose her whereabouts. Hence she was not in a position to apply to the court to enforce maintenance payments. This would have necessitated her appearing in court and likely being subject to an order requiring her to provide access to her husband.
Insofar as her activities have resulted in her bearing the cost of maintaining her son in such circumstances and thereby encroaching upon her capital, it was a self-inflicted injury. She assumed the increased responsibility for maintenance payments as a necessary incident of denying her husband the opportunity of forming a relationship with his son and of thwarting the orders of the court.
In my opinion Judge Anderson, in cancelling the greater portion of the arrears for maintenance, made the correct order in the peculiar circumstances of this case and no reason has been advanced which would justify this court in varying it.
[14] In Cho v. Cho, 2001 ONCA 6637 at paragraph 21 the Ontario Court of Appeal addressed the issue of delay as a circumstance bearing upon the rescission of arrears of child support:
Mere delay in enforcing a claim for support, as with an equitable claim, will not afford the respondent redress. The appellant must have acquiesced in the respondent's conduct, or the appellant's conduct must have either caused the respondent to alter his position in reasonable reliance on the appellant's acceptance of the status quo or permitted a situation which it would be unjust to disturb. Ultimately, the issue of delay or laches is a matter of justice as between the parties: M. (K.) v. M. (H.), 1992 SCC 31, [1992] 3 S.C.R. 6 at pp. 76-78, 96 D.L.R. (4th) 289.
IV Application of the Principles in the Case at Bar
A. Alleged Denial of Access
[15] Mr. Bissonnette does not allege that Alice caused the denial of his access rights. Rather he alleges that the Applicant took Alice to live with her in Scotland in order to deny him his access rights. He has not established that allegation on the evidence so as to make applicable the principles in Turecki v. Turecki, supra.
[16] In questioning on August 20, 2015, the Applicant rejected that allegation explicitly:
552 Q. I put it to you that you made no effort in Scotland to put Alice in touch with her father, and in fact you knew that by being in Scotland he wouldn’t be able to have a relationship. Isn’t that true. A. That was not my intention, no.
553 Q Did you make any effort - You knew where Denise Bissonnette was living, you knew how to get in touch with her. Did you tell her that you were on your way to Scotland? A. What was the point? They didn’t try and get in touch with us.
554 Q You didn’t think - so is it your evidence you didn’t think there was any point in letting a father and his family know that his daughter was moving across an ocean to a different country? You didn’t see any point to advise him? Is that your evidence? A. He had no interest in his daughter.
[17] Having regard to that testimony and the other evidence on the point, I am not satisfied that the Applicant moved to Scotland to deny access to Mr. Bissonnette. Denial of access is, therefore, not a reason the enforcement of the child support arrears ought to be precluded.
B. Delay in Enforcement of the Orders
[18] Mr. Bissonnette had the obligation under the Family Law Act and the two orders to support Alice. He was clearly aware of Justice Houston’s order, since it was made pursuant to minutes of settlement. Moreover, having regard to the reasoning in Cho v. Cho, supra, I am not satisfied that the Applicant acquiesced in the non-payment of support. I am also mindful that Mr. Bissonnette’s motion to change was issued on January 13, 2015, approximately 22 years after the move to Scotland; that circumstance is unreasonable and unexplained delay on his part, of the sort cited in DiFrancesco v. Couto, supra. I, therefore, conclude that delay in their enforcement does not preclude the enforcement of the support orders.
C. The Representation that No Arrears were Owing
[19] The November 26, 2013 letter from FRO was in error in stating to Mr. Bissonnette that he owed no arrears of child support. In any event, in reply counsel for Mr. Bissonnette abandoned as an inapplicable estoppel argument the third issue stated by Justice Price.
D. The Fact that Alice was No Longer a Child of the Marriage Dependent on Her Parents and Entitled to Child Support
[20] Alice was no longer a child of the marriage, dependent on her parents and entitled to child support when Justice Price made his order on July 7, 2015. Mr. Bissonnette argues that Alice, who is now 32 and an independent adult, does not need the child support arrears and would not receive them if they were enforced. He relies on the reasoning in Attard v. Attard, supra in that regard.
[21] In DiFrancesco v. Couto, supra the Ontario Court of Appeal required the consideration of this issue of child need in tandem with a consideration of hardship to the paying party. The issue of that hardship was not the subject of Justice Price’s order. It will be the subject of a trial, unless dealt with pursuant to a settlement. In my view, therefore, the issue of Alice’s lack of need should be addressed at trial or by way of settlement along with the issue of hardship to Mr. Bissonnette.
V. Conclusion
[22] For those reasons I decline to preclude the enforcement of the arrears of child support by the Applicant or the Respondent, Ministry.
[23] I will receive costs submissions in writing of no more than three pages in length, excluding a bill of costs. The Applicant and Ministry are to serve and file their respective submissions within two weeks from the release of these reasons. The Respondent, Bissonnette, is to serve and file his submissions within two weeks from service upon him of the last of those submissions served upon him.
Bloom, J. DATE: April 26, 2016