Court File and Parties
CORRECTED: 20180115
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MICHAEL ALLEN MCCOLEMAN, Applicant
AND:
JULIE MICHELLE FRENCH, Respondent
BEFORE: Van Melle J.
COUNSEL: Self-represented Applicant
Self-represented Respondent
HEARD: July 10, 2017
CORRECTED ENDORSEMENT
1The Respondent, Ms. French, brings a motion to change the order of Belleghem J. dated January 25, 2015, and the order of Court of Appeal Justices Weiler, Pardu and Benotto, dated December 9, 2015. This motion to change was commenced March 15, 2017.
2In the Motion to Change form Ms. French is seeking to terminate child support for Christopher Allan McColeman effective January 2015; and to vary the child support for Cameron Michael McColeman as of January 1, 2017 to $160 per month based on her income of $20,000. She checked off the box that states that the amount listed in the Child Support Guidelines would cause undue hardship to her. She did not however, attach to the form the separate sheet comparing the standard of living of the parties so I am not going to deal with an undue hardship claim.
3In the Motion to Change form under "Other" she asks as well that the terms of Justice Belleghem's order and the terms of the Court of Appeal order be changed to expunge the costs awarded by each court. She asks that child support paid be reimbursed with interest to her for the period of January 2015 to April 2016 as both parents each had one child of the marriage living with them and that Mr. McColeman's income was much higher than hers. She also requests that the over payment of child support be reimbursed with interest from April 2016 to present for the payments paid for child support based on two children, where Christopher is over 18 and not attending school.
4By way of motion returnable April 4, 2017, Ms. French, in addition to the relief sought in the original Motion to Change, asked for an order allowing her to claim Christopher on income tax for 2015 until February 2016; an order dismissing Mr. McColeman of having any control over the investments that Ms. French has for the children and a restraining order against Mr. McColeman and his family.
5In her affidavit sworn August 2, 2017, Ms. French asked for additional relief. She set out the order that she sought and in addition to the relief sought in March and April of 2017 she now asks: to have spousal support for the following years after 2010 commencing in 2016; to have the outstanding RRSP's that Mr. McColeman illegally withdrew from her account paid back to her with interest; to have money paid back to her for Christopher's cellphone in 2015; to have Mr. McColeman charged with perjury and contempt; and costs.
6Many of Ms. French's requests can be disposed of easily. The issues of spousal support and RRSP withdrawals are new issues and cannot be raised by way of an affidavit that was filed at my request to clarify matters that were already before the court. The issue of spousal support was raised at trial and was dismissed by Justice Belleghem who held that the parties had achieved self-sufficiency and that no spousal support was payable. This finding was upheld by the Court of Appeal.
7Ms. French seeks to have costs of the trial before Justice Belleghem and the appeal before the Court of Appeal expunged. Costs are normally awarded in favour of the successful party after trial or appeal. Justice Belleghem gave detailed reasons as to why he made a costs order against Ms. French. Justice Belleghem's costs order would have formed part of the appeal. The Court of Appeal dismissed Ms. French's appeal in its entirety. The Court of Appeal had the trial transcript before it and would have been fully cognizant of her financial position when it fixed costs of $10,000 against her.
8I have no jurisdiction to expunge costs awarded by other courts. Costs can only be expunged by an appeal court, and I cannot sit in appeal of either the Court of Appeal or my fellow judges in the Superior Court.
9Regarding the restraining order sought by Ms. French, Mr. McColeman is agreeable to mutual restraining orders. The restraining order request against Mr. McColeman's family cannot be dealt with as they are not parties to this action and an order cannot be made against a non-party. A restraining order is akin to a criminal order and has serious repercussions for the parties, particularly relating to travel outside of Canada. As there is no evidence in the affidavits before me to support awarding a restraining order against either party, I decline to do so.
10In support of her claim for payment of Christopher's cellphone bill, Ms. French relies on Justice Price's order of February 26, 2015 wherein at paragraph five, Justice Price said:
Michael Allen McColeman shall forthwith, at his own expense, supply each of the children with a cellphone, and a phone plan, which may be limited to local calls for their free and private use. Any breach of this order, or interference with the children's use of the phone, may be the subject of a motion as described in paragraph three.
Justice Price's order did not permit Ms. French to purchase a phone and phone plan for Christopher herself and then get reimbursement from Mr. McColeman; it was Mr. McColeman who was to do so and failing that, a motion could be brought as described in paragraph three of Justice Price's order. This was not done. Justice Price's order would have been made to facilitate and encourage telephone access between Ms. French and the two children. Ms. French did not follow the procedure outlined by Justice Price. Ms. French's claim in this regard is denied.
DISCLOSURE
11At the April 4th return date of this motion to change, Justice Price made an order for more disclosure. After I heard the motion on July 10, 2017 it became apparent that the parties had not complied with Justice Price's order which read:
The parties are in agreement that Cameron is not, at the moment, residing with Mr. McColeman but it is uncertain whether this reflects a momentary or permanent change of residence. It is also unclear as to whether Christopher was attending school and residing with Mr. McColeman for the entire period during which the arrears of child support for 2 children accrued.
Additional evidence is required to clarity the arrears issue referable to Christopher and additional time and evidence is required to permit a determination of Cameron's ongoing residence and the parties' obligation in relation to his support.
Additionally, there is an issue regarding the circumstances of Ms. McColeman's [sic] recent termination of employment on February 22, 2017, and her current capacity to earn income.
12I gave the parties additional time to provide affidavit evidence containing the missing information. I received an affidavit sworn by Christopher attesting to his having stayed with his mother for a couple of months on and off in the summer of 2015.
13Despite having provided additional time to the parties to provide more information, I was still unable to make a determination on the issue of the variation of child support, as critical information that I required was still missing. On August 30, 2017 I made the following endorsement:
On July 10, 2017 I made an order asking the parties to provide me with additional disclosure and information in support of Ms. French's motion to change. It appears that I was not specific enough in my request.
Justice Price on April 4 ordered the parties to exchange their 2016 Income Tax Returns, with all schedules and attachments and Notices of Assessment and Re-Assessment. Subsequently Justice Gibson ordered Ms. French to produce those documents to Mr. McColeman. I suspect that Justices Price and Gibson felt that it was obvious that when documents are ordered to be exchanged they are also to be filed with the court. Unfortunately neither party appears to have filed these documents.
I have been diligently working my way through the documentation provided by the parties in order to make a decision on the motion to change. There is still missing documentation and as the parties are self-represented, I am going to give them one more opportunity to provide the necessary information.
Both parties are to file their 2016 Income Tax Returns, schedules and attachments and Notices of Assessment on or before September 20, 2017.
Ms. French is to serve and file all documentation available to her to demonstrate her 2017 income, including but not limited to, all 2017 paystubs, all correspondence relating to employment from Guelph General Hospital. She is to serve and file all information as to any other sources of money for 2017.
Ms. French is to serve and file all documentation from WSIB relating to her workplace injury. She is to serve and file the letter from her doctor that says she cannot work. She is to serve and file ALL documentation relating to her injury and the assessment of the injury. She does not have to serve and file any documentation that has already been provided.
In working through the affidavits and documentation provided to date, it appears that there is a fundamental misunderstanding as to what evidence is. Just to be clear evidence is sworn or attested to testimony, in this case, by way of affidavit evidence and relevant, admissible documentation from reliable sources.
Ms. French has produced excerpts from transcripts of the trial before Justice Belleghem. None of this information is relevant to the issues before me on this motion.
This additional information is to be filed in the Guelph trial office on or before September 20, 2017.
14I reproduce my endorsement in full because in Ms. French's affidavit filed on September 20, 2017 she says at paragraph 13:
Every Canadian Citizen has the Right to a speedy resolution when attending a court of law. To date it has been 2 years and 7 months from my first motion to get a resolution and change in child support due to the circumstances. This continues not to be resolved. …
15I do not know when Ms. French first started to try to get a change in child support, unless she is referring to the Appeal from Justice Belleghem's Judgment, but this motion to change was filed March 15, 2017. In any event, the reason that this matter is not yet resolved is due to the fact that Ms. French failed to file the information required to support her case. A party is entitled to represent herself. She is often accorded greater latitude as a result. She is however, expected to familiarize herself with the relevant legal practices and procedures pertaining to her case. She is expected to prepare her own case.1 She must do so according to the laws of evidence and the rules of court. The documentation that I requested, particularly on August 30, is documentation that should have been produced for the July 10th hearing. It should have been produced without the necessity of a court order.
16I was particularly concerned by Ms. French's failure to file documentation relating to the income she had earned up to the end of June 2017. The only information I had was her representation in the motion to change itself that her income for 2017 is $20,000 along with a bald statement in an affidavit that her income for 2017 is $25,000.
BACKGROUND
17On September 3, 2014 after a trial, Justice Belleghem awarded sole custody of Christopher, born February 13, 1998 and Cameron, born March 30, 2001 to the Applicant, Michael McColeman. He ordered Ms. French to pay child support of $855 per month, based on an annual income of $57,512, which monthly support he reduced by $350 to reflect what he felt were Ms. French's costs of access. In the result, she was to pay $505 per month commencing June 1, 2014. He forgave any arrears that had accrued to June 1, 2014.
18Subsequently, the Court of Appeal, by way of the December 15, 2015 judgment corrected Justice Belleghem's error to reflect an annual income of Ms. French of $51,000. The Court of Appeal reversed Justice Belleghem's reduction and ordered Ms. French to pay $765 per month commencing January 1, 2016. The Court of Appeal forgave any arrears to January 1, 2016.
19Justice Belleghem ordered Ms. French to pay costs of $25,000 for the trial in the Superior Court. The Court of Appeal ordered Ms. French to pay $10,000 in costs.
20Ms. French says she has spent two and a half years trying to change Justice Belleghem's order. She says that the Court of Appeal refused to admit new evidence and would deal only with the issues arising from trial. She says that Christopher came to live with her in January 2015 and stayed with her until April 2016.
21In support of her allegation that Christopher was living with her from January 2015 to April 2016, Ms. French attached to her affidavit of March 15, 2017 a letter from her superintendent. She states in her affidavit that the letter proved Christopher was living with her. The letter says:
Christopher, Julie's son, moved in with her during the month of April, 2015. We requested Christopher's licence plate number for his vehicle as he was now a tenant with Julie.
For approximately 6 months Christopher was at the apartment almost nightly. We had numerous conversations with Christopher and he has always been very pleasant and respectful.
We noticed by the middle of September, 2015 Christopher was no longer staying at the apartment.
22Christopher swore an affidavit on August 10, 2017. He deposed:
In the summer of 2015, my dad (the Applicant) and I were not seeing eye to eye. My dad asked me to leave to see if moving out was really what I wanted. I stayed with my mom (the Respondent) for a couple of months max on and off and then spent the rest of the time couch surfing at different friends' houses.
I was gone for an entire summer. In total, I was gone for I'd say around 5 or 6 months. I am now back home with my dad and I don't plan on leaving anytime soon.
My brother, Cameron McColeman, born March 30, 2001 (16 years of age) was going down the same path I was and he spent 2 nights away from my dad's home. I was able to talk to him and he went back to live with my dad.
23I accept that Christopher lived away from his father for 6 months in 2015. Unfortunately he does not say who was helping him meet his day to day expenses. It is appropriate in these circumstances to reduce support for Christopher for 2015 for 6 months and to award Ms. French support for Christopher for two months.
VARIATION IN INCOME
24Ms. French alleges that there should be a variation in the amount of child support based on a reduction in her income. A significant reduction in income from that established by the Court of Appeal would indeed be a material change necessitating a variation in child support. Ms. French deposes that she was injured at the work place in December 2016. She says that she was not receiving any income and as a result sustained an injury, which injury was caused by malnourishment and lack of sleep as a result of the unjust cost awards and child support. She deposes to having lost her house and all her belongings and that to date she has been forced to live out of her car.
25In order to properly assess Ms. French's requests in her motion to change, I required specific information as to the circumstances of Ms. French's termination of employment and her current capacity to earn income. Although Ms. French did produce some medical evidence, she also produced pages and pages of transcripts from earlier court proceedings. Those transcripts are irrelevant for the purposes of this motion to change. I cannot revisit the trial before Justice Belleghem. His decision was subsequently altered by the Court of Appeal. That is the end of the matter.
26As an exhibit to her August 2, 2017 affidavit, Ms. French attaches a Case Supervision Conference brief written by Inga Rinne from the Office of the Children's Lawyer. She says that she is "entitled to file the conference brief as she can use anything that was filed". Although the brief does not relate to any of the issues before me on this motion, the inclusion of a brief used at a conference is not permitted. The Family Law Rules address this specifically. The fact that such a brief might have made its way into the Continuing Record does not make it admissible.
27In her affidavit sworn August 2, Ms. French objects to producing medical files from her physician pertaining to the injuries that she sustained at work. She says: "I find this to be against my RIGHTS having to file this personal information. This in none of Mr. McColeman's business…" Unfortunately for Ms. French, as she is seeking a reduction in support payable, these records are Mr. McColeman's business and the court's business as she is relying upon a work injury as a basis for a variation in child support. She bears the burden of proving her case on a balance of probabilities.
28The medical records confirm that Ms. French suffered an injury at work. The physiotherapy report of May 15, 2017 confirms that Ms. French advised that she sustained an injury after lifting a 350 lb. patient at work. She has been attending physiotherapy since July 5, 2016 for a thoracic and shoulder/upper extremity injury. The physiotherapist reports:
Given the mechanism of her injury, the nature of her symptoms, and the recalcitrance of her pain, I suspect that in addition to the spinal/rib join, and myofascial injuries that she has sustained, will also have suffered a lesion to one or more of her thoracic discs. An MRI would be very helpful in determining if Julie has injured her thoracic discs.
29Ms. French attended at the Shoulder and Elbow Specialty Clinic at Sunnybrook on October 5, 2016 for a Comprehensive Assessment Report. She was assessed by a team including Dr. John O'Sullivan, Orthopaedic Surgeon and Gargi Singh, Physical Therapist. Although it appears that the assessment was carried out at the behest of the WSIB, the assessors are not directly employed by WSIB.
30In or about November of 2016 Ms. French attended at the Fergus Hospital for Cervical Spine imaging. Nothing out of the ordinary was found although there is a note that facet arthropathy is suspected at the thoracolumbar junction. The WSIB wrote to Dr. N. Rose-Janes, the doctor who had conducted the imaging stating that an assessment at the Mount Sinai Hospital Speciality Clinic (Function and Pain Program) would be beneficial.
31Ms. French attended at the Sinai Hospital Function and Pain Program on January 18, 2017. On page 2 of its report:
At the time of the assessment, Ms. French reported that she would be having an MRI on January 29, 2017. Since Ms. French reported that she was frustrated with the lack of diagnosis to date and was looking to the MRI for an objective diagnosis, the Assessment Team determined that it would be best to wait for the results of the MRI prior to discussing treatment recommendations with Ms. French. The FPP [Function and Pain Program] received the MRI report on February 3, 2017. The FPP then made several attempts to contact Ms. French to discuss her understanding of the MRI findings and her beliefs regarding her condition in order to make treatment recommendations.
The FPP attempted to contact Ms. French via telephone on February 10, 13 & 16 and left voicemail messages requesting her to call back. We also sent her an email on February 16, 2017 regarding the same. A letter was written to her on February 22, 2017 (and copied to Ms. Karikari, Case Manager) advising her that if we did not hear back from her by March 10, 2017, the FPP would close her file. We have not received any response from Ms. French to date.
Ms. French underwent an MRI of her thoracic spine on January 29, 2017. The FPP received the MRI report on February 3, 2017. The report states: "No pathology identified to explain this patient's clinical presentation."
32Ms. French's team at Mount Sinai included: Tea Cohodarevic, Medical Consultant, Trung Ngo, Chiropractor, Lori Ann Blessing, Psychologist, Jennifer Somers, Occupational Therapist and Mary Helen Mehta, Pharmacist.
33No medical recommendations were made as Ms. French, in not responding to FPP's calls, voicemails and letters, indicated an unwillingness to participate in the program and the file was closed.
34That is the end of the medical evidence presented by Ms. French in support of her claim for a variation of child support. Ms. French does not explain why she did not respond to any of the attempts by Mount Sinai to contact her. In failing to complete the assessment and receive appropriate recommendations for treatment, Ms. French could well be the author of her lack of progress in recovery from the injury.
35Although Ms. French produced additional information from her family doctor and chiropractor in her affidavit of September 20, these letters add nothing to the medical information that was already before me.
36The evidence does not establish the role of WSIB. Ms. French sustained an injury in the workplace. Presumably WSIB should be funding Ms. French and assisting in her recovery and ensuring that workplace accommodation is extended to her. There is no evidence on this motion.
37For the purposes of this motion I accept that Ms. French changed her employment in part as a result of the injury she sustained. It is also probable that she changed her employment to be closer to the children. I accept that her income has been reduced, but I am not satisfied that she has done everything that she could to deal with her injury. Nor am I satisfied that all the relevant information has been put before this court. She is however, earning an income. It is not greatly reduced from what she earned at the time that child support was assessed. Mr. McColeman in 2016 had an income of $61,189. I am satisfied that Mr. McColeman is able to support Cameron financially on his own income and $360 a month from Ms. French.
38In her affidavit of March 27, 2017, Ms. French states that in October 2013, Justice Wein stated she was paying too much child support. She says none of the over payments were ever reimbursed and on this motion to change she is seeking a refund for overpayments of child support. However, in 2013, Ms. French's income tax information shows that her notice of assessment recorded her having an annual income of $44,871. This would have resulted in a child support payment of $662. In fact, Justice Wein reduced child support to $300 per month commencing November 1, 2013 until trial or April 30, 2014, whichever occurred first. She said the amount was subject to recalculation. There is no evidence that Ms. French paid too much in child support. If anything she did not pay enough as in 2014 she had an income of $52,164; in 2015 her income was $68,661 and in 2016, $57,400; all more than the income ($51,000) upon which she was paying child support.
39Ms. French is now working at Guelph General Hospital. The only information that I had regarding this job was a letter dated January 30, 2017 appended as an exhibit to her August 2, 2017 affidavit. The letter says:
"Your appointment is to the position of R.P.N. in the Emergency Department commencing February 6, 2017 at an hourly rate of $29.35 (step 3 of a 3 step scale) plus 14% in lieu of benefits."
40There was no indication as to the hours she was expected to work. In her affidavit of August 2, 2017 there was no further information as to her earnings to date, even though she would have had 6 months of paystubs. Ms. French did include at Exhibit 1, tab 2, section 2(3) of the Child Support Guidelines which states that the most current information must be used for the purposes of the child support guidelines. Thus she was aware of the obligation to provide up to date income information.
41In her affidavit of September 20, 2017 in response to my specific request, she did include her paystubs from Guelph General Hospital. She earned $24,431.56 for 28 weeks. There are 46 weeks remaining after the August 27 paystub. Her projected income for the balance of 2017 is $40,000. This is in addition to the final paystub from her job in Barrie at Royal Victoria Health Centre. She was credited with her final amounts, including vacation pay and sick days on March 10, 2017 in the amount of $12,466.14.
42Given that I terminated the support for Christopher as of February 13, 2016 there will have to be a readjustment of support for Cameron. As of January 1, 2016, Ms. French was paying $765.00 for two children pursuant to the order of the Court of Appeal dated December 9, 2015. For one child the monthly payment is $460. Her projected income for the balance of 2017, commencing February 1, 2017 is $40,000. I attribute her March payment from Royal Victoria Health Centre to the first month of 2017 and on that basis the payment for January is still $460. There will be an order that commencing February 1, 2017 Ms. French's monthly child support is varied so that she is to pay $360 for Cameron.
ORDER
43The following order will issue:
Ms. French may deal with the Canada Savings Bonds she established for Christopher and Cameron in any way she wishes to;
Child support for Christopher is suspended for 6 months in 2015. For those 6 months Ms. French must pay child support for Cameron in the amount of $460 per month.
Mr. McColeman is to pay child support to Ms. French for the 2 months in 2015 that Christopher lived with her. He is to pay $682 per month based on his annual income for 2015 of $75,021.
Child support for Christopher terminates with the February 1, 2016 payment;
Ms. French is to pay child support for Cameron in the amount of $460 per month commencing March 1, 2016. This continues to be based on her annual income of $51,000.
Ms. French is to pay child support for Cameron of $360 per month commencing February 1, 2017, based on an imputed income of $40,000 per year.
The parties are to exchange their Income Tax Returns, Attachments, Notices of Assessment and Re-Assessment by June 1 of each year for so long as support is payable for Cameron.
The Family Responsibility Office is to recalculate the support owed by Ms. French based on this Order.
The balance of Ms. French's claims are dismissed.
Success being divided, no order as to costs.
Van Melle J.
Date: October 3, 2017
Corrected: January 15, 2018
CITATION: McColeman v. French, 2017 ONSC 5778
COURT FILE NO.: 700-10
DATE: 20171003
CORRECTED: 20180115
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MICHAEL ALLEN MCCOLEMAN, Applicant
AND:
JULIE MICHELLE FRENCH, Respondent
CORRECTED ENDORSEMENT
Van Melle J.
Released: October 3, 2017
Corrected: January 15, 2018