Court File and Parties

COURT FILE NO.: FS-16-20556 DATE: 20160726 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Anthony Greg Brown, Applicant AND: Yaosca Lucila Navas, Respondent

BEFORE: Kiteley J.

HEARD: in writing

Endorsement

[1] This is an application initiated by Mr. Brown pursuant to the Interjurisdictional Support Orders Act, 2002.

[2] The parties were not married but have a child born in February 1999. Mr. Brown lives in Nova Scotia and Ms. Navas lives in Ontario with the child.

[3] Neither party has a lawyer and as is often the case, piecing together what has happened is a challenge.

[4] According to Ms. Navas, an order was made in the Ontario Court of Justice dated August 6, 2002 that provided that she have final custody of the child and ordered Mr. Brown to “notify of employment details once he started working”. Neither party has provided a copy of that order although it is referred to in the transcript of the hearing dated October 1, 2014. It was silent on the amount of child support Mr. Brown was required to pay and hence is not relevant to the present application.

[5] Ms. Navas submitted the first ISO Application in November 2010. She says that the Ontario FRO told her that the Sheriff in Nova Scotia could not locate Mr. Brown and she had to retain a private investigator in Nova Scotia to obtain an up-to-date address. She said that a hearing took place in October or November 2012. Apparently an order was made by Justice Leslie J. Dellapinna dated January 21, 2013 but neither party has provided a copy of it.

[6] In an order dated February 11, 2013, the Nova Scotia Supreme Court (Family Division) amended the order of Justice Dellapinna dated January 21, 2013. Based on the underlining in the February order, Mr. Brown’s name was amended to include his middle name “Anthony” and the commencement date was changed from the 1st to the 15th day of February. The February 11, 2013 order is signed by a Deputy Prothonotary and directs Mr. Brown to pay child support in the amount of $724 per month based on “anticipated annual income for 2012 of $85,781.” In addition, Mr. Brown was ordered to provide Ms. Navas with a copy of his income tax return and notice of assessment each year, no later than June 1, commencing June 1, 2013. For purposes of this endorsement I assume that the order that is the subject of this proceeding was dated January 21, 2013 and was amended by order dated February 11, 2013. Based on the preamble to the February 11, 2013 order, I assume that Mr. Brown attended the hearing before Justice Dellapinna on January 21, 2013. The order dated January 21 as amended by order dated February 11, 2013 is the order which is the subject of this Support Variation Application.

[7] According to Ms. Navas she did not sign up with the Nova Scotia Maintenance Enforcement Program because her case-worker advised her it was better to sign up with the Ontario Family Responsibility Office. So she withdrew from the Nova Scotia MEP and registered with Ontario FRO.

[8] In May 2013, Ms. Navas submitted a Support Variation Application in which she sought retroactive child support. She said that it was lost and never received by the FRO.

[9] In March 2014, Ms. Navas re-submitted her Support Variation Application.

[10] Ms. Navas said that the Supreme Court of Nova Scotia (Family Division) issued an amended order dated October 24, 2014 in which Mr. Brown’s name and the due date of child support was changed from the 1st to the 15th of the month. She has not provided a copy of that order and consequently I assume that there is confusion with the amended order dated February 11, 2013.

[11] Ms. Navas has provided a copy of a transcript arising from a hearing dated October 1, 2014 before Justice Carole A. Beaton of the Supreme Court of Nova Scotia (Family Division). Justice Beaton was satisfied that Mr. Brown had been served on August 13, 2014 with the Notice of the Hearing arising from Ms. Navas’ Support Variation Application and she proceeded in his absence. Justice Beaton noted that Ms. Navas had filed the ISO variation application which attached a copy of the order made in the Ontario Court of Justice on August 6, 2002 and which required Mr. Brown to provide in writing to Ms. Navas, within 14 days of commencing employment, information including his place of employment, rate of pay and hours of work. Justice Beaton referred to the order dated January 21, 2013 and the amended order that she said was dated February 6, 2013, not February 11.

[12] The following is taken from that transcript:

With respect to the first aspect of the relief, the Applicant is essentially asking the Court to make a retroactive order back to 2002 concerning child support. The difficulty with that is that I can see in the Running File associated with this matter that the matter was before Justice Dellapinna and the same issue was considered at that time. Quoting directly from the running file as follows:

“Matter before the court for an ISO hearing with respect to Ms. Navas’ application for child maintenance retroactive to 2002 for the parties’ 14 yr old son. Mr. Brown was affirmed and gave evidence with respect to his current income and circumstances with respect to his other children and financial obligations. Mr. Brown confirmed he is agreeable to paying the table amount of support for the child based on his current income but is not agreeable to paying retroactive support.

Given Mr. Brown’s current circumstances and the effect this order will have on his ability to support his other children, Justice Dellapinna was not prepared to grant retroactive payments to Ms. Navas and therefore made an order based on an income for Mr. Brown of $85,781 resulting in a table amount of $724.00. Payments to commence February 1, 2013 and each month thereafter until further order of this court. Payments to be paid through MEP. Mr. Brown will be required to provide confirmation a copy of Income Tax Return and Notice of Assessment no later than June 1, 2013 and each year thereafter. The court confirmed Mr. Brown’s current address and advised him the Court will be preparing the Order which will be provided to him and MEP.

MATTER COMPLETED”.

So what the applicant has in effect asked me to do is adjudicate on the matter of retroactive arrears which was already adjudicated upon by Justice Dellapinna in January 2013, and at that time the retroactive aspect of the application was dismissed and so I would have no business going behind the decision of Justice Dellapinna. I have no jurisdiction to go behind the decision of Justice Dellapinna. That would be a matter for the Appeal Court on an appeal of Justice Dellapinna’s Order and his decision from January 2013, or it would be the matter of a Variation Application but there can’t be a Variation Application when there’s been a dismissal of the claim. Therefore that leaves only the relief sought by way of the Applicant asking the Court to enforce paragraph (2) of the January 21, 2013 Order which requires Mr. Brown to file a copy of his Income Tax Return and Notice of Assessment with the Respondent each year no later than June 1st. That requirement remains in place. What the Applicant is actually asking the court to do is find Mr. Brown in contempt and to determine he’s not filed that Notice of Assessment. I can certainly make the finding today that he hasn’t filed the Tax Return and Notice of Assessment with the Applicant, Ms. Navas, and I can and will have Court staff issue an Order to Disclose requiring him to disclose those materials to Ms. Navas, and specifically, I’ll require that he provide a copy of his Income Tax Return and Notice of Assessment to her within the next 30 days, by depositing a copy of the same with this Court, and forwarding a copy directly to Ms. Navas. That’s the most that can be done to enforce that clause of the Order as it currently stands.

In the absence of any Contempt Application, which Ms. Navas has not made, and if Ms. Navas, upon receipt of that information, or if Mr. Brown fails to provide the information, if Ms. Navas then wishes to make an Application to Vary and have the Court impute income to Mr. Brown, which she’s not currently asked to have done, then that Application can be considered at that time, but the request for retroactive relief is dismissed for the reason set out above and the request for enforcement of the Order is complied with to the extent that the Court has limited ability in the absence of a Contempt Application or a contempt finding to enforce clause (2) and whether Ms. Navas intends to pursue the matter will remain to be seen.

[13] As contemplated by Justice Beaton, the Order to Disclose dated October 1, 2014 was issued which directed Mr. Brown to provide a copy of his 2013 income tax return and notice of assessment.

[14] In this Support Variation Application which he started in April, 2015, Mr. Brown asked for a variation increasing the amount of support from $724 per month to $794 (based on income of $94,452) and an order setting the arrears at $0 as of March 1, 2013.

[15] According to Mr. Brown, he declared bankruptcy in April 2014 and that extended for 21 months; he changed residence 3 times in a short period in order to provide appropriate accommodation for his children; he had a son born October 2014; lump sum child support payments were made along with regular monthly payments through maintenance enforcement including his tax refund in 2014 and 2015. He had been negotiating to make periodic payments through MEP. He owned no assets and said he is unable to pay the arrears over a reasonable period of time. He has three children and has made an “undue hardship” claim. In January 2015 his employer received a Notice of Garnishment on account of ongoing and retroactive payments. It appears that he started the Support Variation Application as a result of the garnishee.

[16] Mr. Brown is a Parole Officer Supervisor and works for the Correctional Service of Canada. According to his financial statement sworn April 22, 2015 his total income in that year was $94,452. He indicated that he has worked at the same location since 2007 and had provided his contact information to the maintenance enforcement office. He said that he had fully complied with the order to pay $724 until he was advised that “they” would no longer accept his payments and were returning the monies provided. He said that he is a “legitimate professional and pro-social person” who did not engage in any type of behavior to hide his whereabouts to avoid paying his obligations and he had no means of contacting Ms. Navas. In his affidavit sworn May 13, 2015, he said that 20 months had gone by after the order was made in January 2013 and he did not have the financial means to repay such a heavy burden. He asked that the arrears be cancelled and the prospective child support be calculated to take into account his income.

[17] According to the Record of Payments provided by the Maintenance Enforcement Program of Nova Scotia, the arrears accumulated between March 14, 2014 and March 2015 were $12,360.94. Mr. Brown asked that they be reduced to $0 effective March 1, 2013.

[18] In the Notice of Hearing issued on March 31, 2016 Mr. Brown asked for a date to be fixed for the hearing 30 days from the date of service of the notice on Ms. Navas. According to the affidavit of service by the Sherriff’s Officer, Ms. Navas was served on April 7, 2016 with Mr. Brown’s Variation Support Application, record of payments from Nova Scotia, financial statement and affidavit of Mr. Brown and a 2014 tax return summary. Attached to his sworn financial statement are several payment statements dated in early 2015, and income tax documents for 2013 and 2014.

[19] Ms. Navas’ Answer to the Application is dated May 2, 2016. In her form 14A affidavit sworn May 3, 2016, she opposed his Support Variation Application to set the arrears at $0.; she asked for an order recalculating the child support in accordance with his tax returns and notices of assessment for the years 2013, 2014, 2015 and, for 2016, based on his 2015 income plus a 3% increase. She calculated the arrears to be $11,591.30. On May 2, 2016, she served her Answer, financial statement and affidavit.

[20] Attached to Ms. Navas’ affidavit is what appears to be the Ontario Director’s Statement of Arrears. It does not reflect any payments from September 10, 2013 to November 21, 2014 when a payment of $4,619.56 was made followed by what appear to be payments pursuant to the garnishee in early 2015 and a payment of $3,928 in May, 2015. I assume that the lump sum payments were as a result of the Director seizing income tax refunds or other payables owed to Mr. Brown. Since then the garnishee has continued leaving the outstanding arrears as at April 4, 2016 in the amount of $8,442.94. As indicated above, based on re-calculating the amount owed, Ms. Navas claims that the arrears should be $11,591.30.

Conclusion:

[21] The Notice of Hearing that was served on Ms. Navas indicates that the court will hold a “written hearing on a date to be fixed 30 days from the date of service of this notice on” her. It also indicates that if Ms. Navas wanted to ask for an oral hearing, she had to prepare a motion within 30 days and she has not done so. In the absence of a request for an oral hearing, I will deal with this matter in writing.

A. Mr. Brown’s request to vacate the arrears accrued on and after February 15, 2013

[22] Mr. Brown was present in court on January 21, 2013. He was told the order would be issued. He provided a copy of the “Payor Information Update” dated March 20, 2013 which he had given to the MEP in which he gave his then address, home and work phone numbers, date of birth, parents’ names, and the name and address of his employer. He also attached a copy of a letter dated April 3, 2013 from the Nova Scotia Maintenance Enforcement Program thanking him for providing the recent payments but pointing out that MEP could not release the payments because they were awaiting information from Ms. Navas. He also provided a copy of a letter dated May 14, 2013 from MEP advising that the maintenance order had been withdrawn effective May 14, 2013 and his post-dated cheques were returned to him. He provided a copy of an envelope addressed to him at the address of his former wife with a postage date of February 2015. He has no idea why MEP would have sent correspondence to him at that address and says that he kept the MEP informed of his whereabouts and, being employed by Correctional Services of Canada, collection would not have been difficult.

[23] Mr. Brown has not had a relationship with the child who is the subject of this Support Variation Application. He says that he did not know where Ms. Navas lived and had no means of contacting her.

[24] I accept that he did what he was required to do, namely keep MEP informed and provide payment including post-dated cheques. The next he heard was the garnishment notice in early 2015 which appears to have precipitated this Support Variation Application. By then arrears had accumulated.

[25] I agree that Mr. Brown is entitled to some indulgence for the period between February 1, 2013 and January, 2015. Accepting the correspondence from MEP, that agency was unable to contact Ms. Navas from which I conclude that she did not provide information as to her whereabouts and therefore she should accept some responsibility for the hiatus in enforcement. Mr. Brown is not entitled to have all of the arrears vacated because even if the Ontario Family Responsibility Office appears not to have made contact with him before the garnishee was issued, the child remains his responsibility. Sharing the responsibility equally between the parents, I order that the arrears that accumulated between February 15, 2013 and including January 15, 2015 be reduced by 50%.

B. Mr. Brown’s request for “undue hardship” consideration

[26] I am assuming that Mr. Brown relies on s. 10(1),(2) and (3) of the Ontario Child Support Guidelines.

[27] This request should have been documented in a more comprehensive manner. Doing what I can to understand his position, it appears from his 2014 tax return and the schedule of child care expenses that the children were born in 2003 and 2010. He appears to have been subject to an order that he pay $633.33/month in child support and that that order had been reduced to $310 per month sometime prior to his affidavit sworn in May 2015. As indicated above, in the hearing on January 21, 2013, he raised the issue of those children because the quotation from the Running File found at paragraph 12 above indicates that Justice Dellapinna relied on the effect a retroactive order would have on his ability to support his other children. Mr. Brown has already had the benefit of that submission and it would be unfair to Ms. Navas and the child in this application if he were allowed credit again.

[28] His third child was born in October 2014 which was after the January/February 2013 order. However, I am not persuaded that the court should order an amount that is different from the guideline amount because Mr. Brown has not provided evidence as to the financial circumstances of the mother of that child, whether the three of them reside together as a family, and whether she makes a financial contribution to that household. The evidence on which Mr. Brown relies lacks the detail that is required.

C. Ms. Navas’ request to re-calculate the support due from February 15, 2013

[29] The order dated January 21, 2013 (as amended February 11, 2013) was predicated on Mr. Brown’s “anticipated annual income for 2012 of $85,781”. According to his Tax Return Summary the total of his pre-bankruptcy and post-bankruptcy line 150 income was $91,331 which Ms. Navas says means he should have been paying at the rate of $768.59 per month. Mr. Brown’s 2014 line 150 income was $92,918 which Ms. Navas says means he should have been paying at the rate of $781.34 per month. Ms. Navas takes the position that, based on his 2015 financial statement, his income for 2015 should be $94,452 in which case child support should have been $793.71. She suggests that his income for 2016 be based on $94,452 plus 3% for a total of $97,285 in which case she says he should be paying $815.17 per month. Based on her calculation the arrears are $11,591.30.

[30] I do not intend to adjust for the period February 15, 2013 to and including January 2015 because the increased amount will be modest and in any event I intend to reduce it by 50%.

[31] I do agree that there should be an adjustment for the period starting February 15, 2015 to the present on the basis of Mr. Brown’s presumed line 150 income for 2015 being $94,452 as a result of which they agree the child support should be $794 per month. That amount shall continue for the balance of 2015 with the Director, Family Responsibility Office recalculating for that period based on Mr. Brown’s actual line 150 income for 2015.

[32] I will direct the court staff to forward a copy of this endorsement to Mr. Brown, to Ms. Navas, to the Director, Family Responsibility Office in Ontario, and to the ISO unit in Ontario to be forwarded to the Nova Scotia Supreme Court (Family Division).

ORDER TO GO AS FOLLOWS:

[33] The application by Ms. Navas to vary the arrears by increasing the amount of child support required to be paid between February 15, 2013 and January 15, 2015 is dismissed.

[34] The application by Ms. Navas to vary the arrears that accumulated from and including February 15, 2015 to this date is granted in that the child support that Mr. Brown was required to pay was as follows:

(a) from February 15, 2015 to and including December 15, 2015 based on presumed line 150 income for 2015 in the amount of $94,452, Mr. Brown was required to pay child support in the amount of $794 per month provided that the Director, Family Responsibility Office shall recalculate the amount for that period immediately upon receipt of Mr. Brown’s 2015 Notice of Assessment;

(b) from January 15, 2016 and ongoing, Mr. Brown shall pay child support based on his actual line 150 income for 2015 provided that the Director, Family Responsibility Office shall recalculate that amount immediately upon receipt of Mr. Brown’s 2015 Notice of Assessment.

[35] The application by Mr. Brown to reduce to $0 the arrears that accumulated between February 15, 2013 and including January 2015 is granted in part in that 50% of those arrears, as calculated by the Director, Family Responsibility Office, are vacated and the balance due, if any, shall be paid on such terms as are imposed by the Director.

[36] The application by Mr. Brown to reduce the child support required to be paid on account of “undue hardship” is dismissed.

[37] If he has not already done so, within 30 days of receipt of a copy of this endorsement, Mr. Brown shall provide to Ms. Navas, to this court, to the court in Nova Scotia and to the Director, Family Responsibility Office in Ontario a copy of his 2015 income tax return as filed and a copy of his Notice of Assessment.

Kiteley J. Date: July 26, 2016