Pye v. Pye, 2017 ONSC 6032

CITATION: Pye v. Pye, 2017 ONSC 6032

Pye v. Pye, 2017 ONSC 6033

COURT FILE NO.: FC-13-370-2; 13-370-E0

DATE: 2017/10/10

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Kristina Pey -and- Ali Javaheri Pey

RE: Director, Family Responsibility Office for the benefit of Kristina Pey -and - Ali Javaheri Pey

BEFORE: Madam Justice H. J. Williams

COUNSEL: Carol Craig, Counsel for the Applicant Allan T. Hirsch, Counsel for Director, Family Responsibility Office Self-Represented Respondent

HEARD: July 13, 2017

ENDORSEMENT

1There were three motions before me in two proceedings.

2The respondent to both proceedings, Ali Javaheri Pey (“the father”), brought a motion to change an order of Justice Doyle dated September 25, 2015 (which had been amended by Justice Shelston) and an order of Justice Shelston dated April 18, 2016.

3The applicant in the family law proceeding (FC-13-370-2), Kristina Pey (“the mother”), brought a motion to strike the father’s motion to change on the basis that the father had failed to obey court orders. In the alternative, the mother asked for the father’s motion to be dismissed.

4The applicant in the enforcement proceeding (FC-13-370-E0), The Director of the Family Responsibility Office (“the FRO”), brought a motion to enforce the father’s spousal and child support obligations. (Section 41(21) of the Family Responsibility and Support Arrears Enforcement Act (“the FRSAE Act”) provides that a default hearing under this section and a hearing on a motion to change a support order may be held together or separately.)

5The parties’ motions were heard together.

6For the reasons below, I decided the motions as follows:

1. The mother’s motion to strike the father’s motion is allowed.
2. The FRO’s motion is allowed.

I. Background:

7The father and the mother were married in September of 2009. They separated in October of 2012.

8The couple has two daughters. One daughter is seven years old, the other is six. The older daughter was born four months and one week after the couple married.

9For most of the couple’s brief marriage, the mother did not work outside the home; she stayed home and cared for the children.

10The mother was also a student. She completed a Bachelor of Arts degree in May of 2014 and a two-year teacher education program in May of 2017.

11The father had a degree in electronics engineering and worked in the technology sector; the father’s income was considerably higher than that of the mother.

12Motions related to parenting and support issues were heard in 2013, 2014 and in the spring of 2015, at which time this matter was placed on a trial list for September 2015.

13In September, 2015, the father resigned from the job he had had since 2009 to accept a contract job that would permit him to work from home; he said that he made this change in order to be more available to his children. The father lost the new contract job after less than one month.

14As of July 13, 2017, the date of the hearing of this motion, the father had not earned any income from employment since September, 2015, except for $12,000.00 from a three-month contract which had started April 10, 2017.

15Since September, 2015, the father had written and published a book about the unfairness and discrimination he had encountered in Ottawa’s courts. He had also started a business and created a website but, as of the July 13, 2017 hearing, the business was not yet generating any income.

16The mother had started to work as an occasional teacher with two Ottawa school boards in May, 2017.

Justice Doyle’s order of September 25, 2015 (“Order #1”)

17Order #1 dealt with the issues of custody and access on a final basis. Order #1 was made in conjunction with a settlement conference; it was on consent.

18Order #1 provided that the outstanding issues of child and spousal support and equalization would be decided at the next family law trial sittings in January, 2016.

Justice Shelston’s orders of April 18, 2016 (“Order #2” and “Order #3”)

19In January, 2016, with leave of a trial management conference judge, the mother brought a motion immediately before the trial was to begin. The motion was for amendments to Order #1. The mother requested the amendments to discourage the father from keeping one or both children home from school in order to increase his access time with them.

20Justice Shelston heard the mother’s motion on January 26, 2017 and then heard the trial on January 26, 27, 28 and 29, 2017.

21Justice Shelton released two decisions on April 18, 2016. The decision which dealt with the motion in relation to Order #1 will be referred to as “Order #2”. The trial decision will be referred to as “Order #3.

22Order #2 granted the amendments to Order #1 the mother had requested.

23Order #3 required the father to pay child and spousal support as of January 1, 2016 based on an imputed income of $110,000.00. The father was not employed at the time of the trial; Justice Shelston found that the father had not made adequate efforts to find employment.

24Order #3 also required the father to pay child and spousal support arrears, which included retroactive adjustments to the amounts payable. Order #3 also required the father to make an equalization payment to the mother of $53,675.11, but ordered the mother to pay the father $3,400.01 in post-separation credits for a net payment to the mother of $50,275.10.

No appeal of Order #2 or Order #3

25The father did not appeal Order #2 or Order #3.

Post-trial motions

26The father initiated this motion to change on August 16, 2016.

27The father brought an urgent motion on September, 20, 2016 to stay the enforcement of Order #3 and his on-going support obligations. The motion was dismissed by Justice Phillips. In his endorsement, Justice Phillips said that the motion “was simply an attempt to re-litigate that which has already been decided.” Justice Phillips ordered the father to pay costs to the mother of $500.00 and to the FRO of $200.00.

28In January, 2017, in the context of the father’s motion to change, the mother brought a motion for security for costs. Justice Kane ordered the father to pay $10,000.00 in security for costs, failing which the father would not be permitted to proceed with his motion. In doing so, Justice Kane noted that, in some respects, the motion to change appeared to be a collateral attack of existing court determinations. Justice Kane also ordered the father to pay the mother $800.00 in costs.

The father’s history of compliance and non-compliance with court orders

29According to a Director’s Statement of Arrears of the FRO (“the FRO statement”) dated June 27, 2017, as of that date, the father owed spousal and child support arrears in the amount of $62,292.68.

30Since the date of Order #3, the father had made only two voluntary payments toward his child and spousal support obligations. One of these payments, for $1,000.00, was made in May, 2017 and appears on the FRO statement. Although this was not in evidence, the mother’s lawyer, Ms. Craig, said that in June, 2017, the month prior to the hearing of the motion, the father had made a further voluntary $1,000.00 payment to the mother.

31As of the July 13, 2017 hearing, the father had not paid the equalization payment of $50,251.00 plus interest.

32As of the July 13, 2017 hearing, the father had not paid the $33,000.00 in costs he was ordered to pay by Justice Shelston, representing $8,000.00 in costs for a motion before Justice Maclean and $25,000.00 for the motion and trial before Justice Shelston in January, 2016.

33As of the July 13, 2017 hearing, the father had not paid the $500.00 he was ordered to pay by Justice Phillips.

34The father did pay the security for costs ordered by Justice Kane as a pre-condition to the father’s right to proceed with his motion to change. The father paid the $10,000.00 into court on January 12, 2017, eight days following the date of the order.

II. The motions:

Motion #1: The father’s motion to change:

The relief sought by the father on his motion

35The father requested changes to the paragraphs of Order #1 that were amended by Order #2, as well as some additional changes. Some of the changes requested by the father would have provided the father with more time with the children on certain days if the children had no school or were too ill to attend school. Other changes requested by the father would have required the parents to facilitate each other’s video access to the children and would have ensured that if one of the parents were unable to care for the children due to travel or for other reasons, the children would reside with the other parent.

36The father requested the following changes to Order #3:

• That child support payable by the father be based on an annual income lower than the $110,000.00 imputed by Justice Shelston¹;
• That spousal and child support payments retroactive to January, 2016 be suspended on an interim basis;
• That spousal support arrears that had accumulated in 2013, 2014 and 2015 be reduced or rescinded;
• That the father’s debt to the mother be set at “a reasonable pay rate” and that there be relief with respect to interest; and
• That spousal support be terminated five years post-separation, which would be October, 2017.

37In his oral submissions, the father emphasized that he was not trying to avoid paying the mother; he was requesting an adjustment in the amount he owes and a reasonable payment plan.

The grounds for the father’s motion

38The father’s motion materials were voluminous.

39The father also introduced as an exhibit a 200-page book he had written titled Discrimination in the Canadian Courts, published by Tellwell Talent (www.tellwell.ca).

40It was evident from the father’s oral submissions, his written motion materials and his book that the father is very unhappy with the results of his encounters with the legal system.

41The father feels strongly that he has been the victim of discrimination and racism. In his written materials and his oral submissions, the father emphasized that the court endorsements and police reports relating to these proceedings as well as the report of a parenting assessor had all failed to acknowledge that the mother had damaged two of the father’s Qurans, including his parents’ wedding Quran. The father argued that if the mother had damaged a Bible, it would have been mentioned.

42The father submitted that the judges who have made decisions affecting him have relied on false facts and manufactured facts.

43The father said that he loves his daughters more than anything else in the world.

44Most of the father’s written and oral submissions related to matters that had already been decided by the three orders.

45The father submitted that the following changes had taken place since the January, 2016 trial:

1. His employment insurance ended in August, 2016.
2. He had been struggling with emotional issues that had disabled him and destroyed his career.
3. He had started a new business, which was his only way of recovering financially because there were no jobs in his area of expertise in the Ottawa area.
4. He had had income in 2013, 2014 and 2015 but had had no income (presumably other than employment insurance) in 2016 and had earned only $12,000.00 in 2017.
5. He cannot afford to pay $3,400.00/month in support as well as more than $100,000.00 in arrears.

Disposition of the father’s motion

46For the reasons that Motion #2, below, is allowed, the father’s motion is struck.

Motion #2 The mother’s motion to strike:

The relief sought by the mother on her motion

47The mother seeks an order to strike the father’s motion to change. If the order to strike is not granted, the mother seeks an order dismissing the father’s motion to change.

48The mother also seeks an order prohibiting the father from bringing a further motion to change within a timeframe to be determined by the court.

49In oral argument, the mother’s lawyer requested an order under s. 9(1)(d)(ii) of the Family Law Act, R.S.O. 1990, c. F.3 (“ the FLA”) for the sale of the father’s house to satisfy the equalization payment owed to the mother. This order was not specifically requested in the mother’s notice of motion; the mother’s lawyer argued that it could be considered to be included under the request for “further and other relief”.

The grounds for the mother’s motion

50The mother argued that the father has failed to comply with previous court orders.

51The mother relied on Rule 1(8)(c) of the Family Law Rules, O. Reg. 114/99 (the “FLRs”) which allows for an order striking pleadings and other documents when a court order is not followed:

1(8) FAILURE TO OBEY ORDER -- If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it consider necessary for a just determination of the matter, including,

(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by the party;

52In support of her alternative motion to dismiss the father’s motion to change, the mother argued that there were no material changes in circumstances subsequent to the January, 2016 trial that likely would have resulted in a different order. The mother relied on Trang v. Trang, (2013), CarswellOnt 4609 (Ont. S.C.J.) at para 40.

Law and analysis

53There is a three-part test for striking the dismissal of a claim or a document under Rule 1(8) of the Family Law Rules. First, the court must ask whether there has been non-compliance with an order in the case or a related case. Second, the court must ask whether it is appropriate to exercise its discretion in favour of the non-complying party by not sanctioning the party under Rule 1(8), a discretion the case law suggests is exercised only in exceptional circumstances. Third, if the court decides not to exercise its discretion in favour of the non-complying party, it has broad discretion under Rule 1(8) in respect of an appropriate remedy. (Ciarlariello v. Iuele-Ciarlariello, 2012 ONSC 6636 at para. 52, citing Ferguson v. Charlton, 2008 ONCJ 1 at para. 64).

One: Has there been non-compliance with an order?

54As set out above, the father has failed to comply with several court orders in this case.

55With the exception of the two $1,000.00 support payments made in the two months immediately preceding the July 13, 2017 hearing, the only order the father voluntarily complied with was Justice Kane’s security for costs order. If the father had not complied with Justice Kane’s order, he would not have been permitted to bring his motion to change.

Two: Should discretion be exercised in favour of the father by not sanctioning him under Rule 1(8)?

56It is not difficult to imagine a situation in which it might be inappropriate to prevent a party from seeking to change an order due to non-compliance with a previous order, for example, if the inability to comply with an order had been caused by the very circumstances, such as illness or an involuntary financial reversal, which might justify the change.

57This is not such a situation.

58In this case, the father seeks increased access to his children. He also seeks changes to Order #3 on the basis that, because he has not been working, he cannot afford to pay what he was ordered to pay.

59However, Justice Shelston had ordered the father to pay support based on an imputed income, rather than his actual income, because he concluded that the father had not made adequate efforts to find alternative employment. If a person wishes to argue that an imputed income is no longer appropriate, the person must go beyond establishing what their actual income is. The person must present evidence of changed circumstances that show either that it is no longer necessary or appropriate to impute income or that a different amount would be more appropriate. (Trang v. Trang, at para. 52.)

60As of the July 13, 2017 hearing, the father owed more than $60,000.00 in child and spousal support and an equalization payment of more than $50,000.00.

61It is apparent from the father’s financial disclosure that, as of July 13, 2017, the father had approximately $330,000.00 in equity in the house he owns, which he valued at $580,000.00. He had investments of about $130,000.00, a 2015 car that was fully paid for and available credit of $17,000.00.

62In an affidavit filed March 10, 2017 which, although dated March 8, 2016 I infer was sworn March 8, 2017, the father said that he had been relying on his RRSP savings to support himself and that from January, 2016 to March, 2017, he had withdrawn $92,225.77 from his RRSPs. During this period, his support arrears accumulated from $5,444.00 on January 1, 2016 to $47,327.75 on March 1, 2017, suggesting that, despite having more than $90,000.00 in income during this 13 to 15-month period, 13 of the monthly combined child and spousal support payments of $3,238.00 he owed went unpaid.

63As noted above, when, in January, 2017, Justice Kane ordered the father to pay $10,000.00 in security for costs as a pre-condition to bringing his motion to change, the father paid the money into court in just eight days.

64It is evident that the father can make thousands of dollars materialize in a matter of days when he is motivated to do so. It is also evident that, whether he is working or not, the father has the means to pay the child and spousal support arrears and the equalization payment he owes. These court-ordered payments have simply not been a priority for him.

65I see no reason why I should exercise my discretion not to sanction the father under Rule 1(8).

Three: What is the appropriate remedy?

66A mechanism such as the one in Rule 1(8)(c) of the FLRs which provides for a party’s pleading or other document to be struck “recognizes the offensiveness of allowing a party to obtain relief while in breach of a court order (Gordon v. Starr, 2007 35527 (ON SC), 2007, 42 RFL (6th) 366; [2007] CarswellOnt 5438; [2007] OJ No 3264 (QL); 160 ACWS (3d) 304 (Ont. S.C.J.) at para. 23), or, as in the case of the father in the motion before me, multiple court orders.

67In the circumstances of this case, it would not be appropriate to provide the father with an opportunity to request relief from this court when he has chosen to ignore the orders of this court which gave relief to the mother.

Disposition of the mother’s motion

68The mother’s motion to strike the father’s motion to change under Rule 1(8)(c) of the FLRs is allowed.

69In her notice of motion, the mother also asked that the father be prohibited from bringing any further motions to change within a specified timeframe. Because of the father’s failure to obey previous orders, his motion before Justice Phillips and this motion, the mother’s request is allowed. The father is prohibited from bringing a further motion to change, without leave of the court, before all amounts owing under all court orders in both proceedings have been paid in full, including all costs orders including any costs orders relating to the motions before me.

70As noted above, in oral argument, the mother requested an order under s. 9(1)(d)(ii) of the FLA for the sale of the house owned by the father to satisfy the equalization payment owed to the mother. As it did not appear that the father had advance notice of this request, I will not consider it. This decision is, however, without prejudice to the mother’s right to bring a motion for this relief on notice to the father.

71To summarize and for clarity, I order the following:

1. The mother’s motion to strike is allowed;
2. The father’s motion to change is struck;
3. The father shall be prohibited from bringing any further motions to change, without leave of the court, before all amounts owing under all court orders in both proceedings have been paid in full, including all costs orders including any costs orders relating to the motions before me; and
4. The mother shall have leave to bring a motion to sell the father’s house under s. 9(1)(d)(ii) of the FLA.

Motion #3: The FRO’s motion to enforce:

The relief sought by the FRO on its motion

72The FRO seeks the following orders:

• An order that, within 30 days, the father shall pay to the Director of the FRO a lump sum to satisfy all support arrears;
• An order that, within 30 days, the father shall pay at least $20,000.00 to the Director of the FRO, to be held as security for subsequent payments and an order that the Director shall be permitted to apply funds from the security amount to satisfy ongoing payments as they become due;
• An order that, in the event of default in relation to the above orders, the father shall be imprisoned for a period of 180 days or such lesser period as may be determined by a court hearing a motion for committal, which motion may be brought by the FRO on notice to the Respondent; and
• An order requiring the father to provide the FRO details of any future change of address or employment as soon as the changes take place.

In its written motion materials, the FRO sought orders for payment within 30 days. In oral argument, the lawyer for the FRO, Mr. Hirsch, said that a 30 to 45 day timeframe for payment would be appropriate.

The grounds for the FRO’s motion

73The FRO issued a notice of default hearing on November 18, 2016.

74The FRO relies on the two presumptions in s. 41(9) of the FRSAE Act which are: (1) that the payor has the ability to pay the ordered arrears and to make the ordered subsequent payments; and (2) that the FRO statement [of arrears] is correct.

75The FRO argues that the father has not only failed to rebut the presumption that he has the ability to pay the arrears and the payments but that the evidence is clear that the father has the ability to do so.

Disposition of the FRO’s motion

76As noted above, the FRO seeks a number of enforcement-related orders.

77The FRO statement indicated that as of June 27, 2017, the father owed $62,292.68 in child and spousal support arrears.

78The mother said that the father had made a $1,000.00 payment that was not reflected on the statement. That would bring the amount owing as of June 27, 2017 to $61,292.68.

79The father said that he would be making a further $1,000.00 in July, 2017.

80Since June 27, 2017, four additional payments of $3,238.00 will have become due, totaling $12, 952.00.

81If the father made the $1,000.00 payment he said he would make in July, 2017 and made no other payments, as of the date of this decision, the arrears would total $73,244.68.

82As noted above, the father has equity in his home of $330,000.00 and investments of $130,000.00. The evidence indicated that the father also has $17,000.00 available to him through a line of credit and $16,700.00 available through credit cards.

83The father has the ability to pay the child and spousal support he owes but to date, he chosen not to do so. The father appears to consider the support orders the courts have made requiring him to share his wealth with his children and their mother to be discriminatory and either does not appreciate or is indifferent to their mandatory nature.

84The FRO’s motion is granted. In my order, I will not reduce the amount of the arrears owing by the $1,000.00 the father said that he would be paying in July, 2017; I also will not increase the amount to be held as security to take into account arrears which may or may not have accumulated since the July 13, 2017 hearing date of the motion.

85I order the following:

1. Within 30 days of the date of this decision, the father shall pay to the Director of the FRO a lump sum in the amount of $61,292.68 to satisfy the support arrears owing as of the date of the hearing of this motion;
2. Within 45 days, the father shall pay to the Director of the FRO an additional lump sum in the amount of $20,000.00 to be held as security for subsequent payments; the Director shall be permitted to apply funds from the security amount to satisfy ongoing payments as they become due;
3. In the event of default in respect of either of the above orders, the FRO shall have leave to bring a motion for committal, on notice to the father, for the imprisonment of the father for a period of 180 days or such lesser period as may be determined by the court hearing the motion for committal;
4. The father shall provide the FRO details of any future change of address or employment as soon as the changes take place.

III. Costs:

86The parties may make submissions with respect to costs, not exceeding three pages in length.

87The mother and the FRO shall serve and file their submissions within two weeks of the date of release of these reasons.

88The father shall serve and file his responding submissions within two weeks of the date of service of the submissions of the mother and the FRO.

89The mother and the FRO may make reply submissions within two weeks of the date of service of the father’s responding submissions.

Footnotes

1. 1In his Form 15, the father asked that child support be based on an annual income of $18,000.00. In his factum, the father said that, based on the income he earned through a three-month contract position in 2017, his estimated income would be $48,000.00.