Court File and Parties
COURT FILE NO.: 201/09 DATE: 2017-12-06 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DOMINIC VITO VETRO, Applicant AND: GABRIELLE VETRO (ST. GEORGE), Respondent
BEFORE: Gray J.
COUNSEL: Dominic Vetro, Self-represented Gabrielle St. George, Self-represented
HEARD: December 5, 2017
Endorsement
[1] What is before me is a garnishment hearing in a family law matter.
[2] This matter has a long and complex history. It is unnecessary to review all of it. It is sufficient to say that this matrimonial dispute has been before the court since 2009, and there have been innumerable court appearances before this court and before the Court of Appeal.
[3] On August 23, 2012, I struck Mr. Vetro’s pleadings. On November 15 and 19, 2012, the case was heard as an undefended trial by Donohue J. and she issued a handwritten endorsement on November 19, 2012.
[4] In her decision, Justice Donohue awarded an equalization payment to the respondent; calculated arrears of spousal and child support; vested the matrimonial home in the respondent, and ordered lump sum spousal support in the amount of $770,811. She made various other orders but those are the main ones.
[5] The Court of Appeal dismissed appeals from my order and from the order of Donohue J.
[6] There have been skirmishes since the Court of Appeal’s order. A Motion to Change has been brought by Mr. Vetro. Ms. St. George has alleged delay in the pursuit of the Motion to Change. Mr. Vetro has recently sought an extension of time to appeal to the Supreme Court of Canada from the Court of Appeal’s order dismissing the appeals from my order and that of Donohue J. Very recently, Mossip J. struck Mr. Vetro’s Motion to Change.
[7] Ms. St. George has caused to be served a number of notices of garnishment, on 17 different financial institutions, and on the Canada Pension Plan, seeking to recover the sum of $830,735.59.
[8] Mr. Vetro has filed a garnishment dispute pursuant to rule 29(16) of the Family Law Rules. I conducted a garnishment hearing on December 5, 2017.
[9] In his affidavit material, Mr. Vetro deposes that he has been in receipt of ODSP since May 27, 2013. His psychiatrist has diagnosed that he is unable to work due to severe anxiety, depression and suicidal ideations.
[10] In addition, Mr. Vetro receives Canada Pension Plan disability benefits.
[11] Mr. Vetro receives $253 per month from OSDP, and $1,030 per month in CPP disability benefits. His line 150 income for 2016 was $13,392.
[12] Mr. Vetro deposes that he has no car, no assets and no furniture. He was required to abandon his small business and file for bankruptcy in 2013. He lives with his elderly parents in a small, semi-detached bungalow.
[13] Mr. Vetro deposes that he was also left with significant debt, some of which survives, in practical terms, even after his bankruptcy. He has a CIBC line of credit which had been co-signed by his parents. Since his bankruptcy, his parents continue to be responsible for the line of credit, and he reimburses his parents for the modest payments that are currently paid on the line of credit. Only the ODSP and CPP payments go into his bank account.
[14] Mr. Vetro deposes that to garnish any portion of his very modest CPP disability benefits or his ODSP payments would be severely prejudicial.
[15] Mr. Vetro deposes that the respondent, Ms. St. George, lives with her common law spouse and is in the process of building a new 5,500 square foot home. He deposes that she and her spouse have “flipped” two houses in the last two years, earning a gross profit of approximately $900,000. He deposes that they are in the process of renovating and selling a third home.
[16] Mr. Vetro deposes that the respondent sold the matrimonial home, after it was vested in her, for a considerable profit.
[17] Mr. Vetro deposes that the parties’ four children are now adults. Three of them have graduated from university and are living in Europe. The youngest child is 23 years of age and is entering a Master’s program in London, England.
[18] Ms. St. George, in her affidavit material, points out that Mr. Vetro missed the deadline for commencing his appeal to the Supreme Court of Canada, and that this was relied on, among other things, by Mossip J. when she struck Mr. Vetro’s Motion to Change.
[19] Ms. Vetro takes the position that the earning capacity, finances and lifestyle of herself and the children of the marriage are irrelevant. She notes that on September 20, 2016, Miller J. refused a request for financial disclosure from the respondent and the children, on the basis that the information is irrelevant unless and until Mr. Vetro has paid the lump sum spousal support award.
[20] Apart from taking the position that the information as to her lifestyle and finances are irrelevant, Ms. St. George does not dispute the information provided by Mr. Vetro, apart from pointing out that some of that information is obtained from internet sources.
Analysis
[21] Garnishment is an enforcement process of long-standing. Notwithstanding that it is generally available as a matter of course, it nevertheless is considered to be governed by equitable principles. The court retains discretion as to whether it will permit garnishment proceedings: see Parker v. Parker (2014), 19 C.B.R. (6th) 154 (Ont. Div. Ct.) at para. 4; 20 Toronto Street Holdings Ltd. v. Coffee Tea or Me Bakeries Inc. (2001), 53 O.R. (3d) 360 (S.C.J.), at para. 5; International Union of Painters and Allied Trades, Local 200 v. S & S Glass and Aluminum (1993) Ltd. (2004), 185 O.A.C. 38 (C.A.), at paras 19-20.
[22] In this case, garnishment is sought from a number of financial institutions, and from the Canada Pension Plan.
[23] As far as the Canada Pension Plan is concerned, s.65 of the Act creating and governing the Canada Pension Plan is apposite. The relevant provisions provide:
Benefit not to be assigned, etc.
65 (1) A benefit shall not be assigned, charged, attached, anticipated or given as security, and any transaction purporting to assign, charge, attach, anticipate or give as security a benefit is void.
Benefit not subject to seizure or execution
(1.1) A benefit is exempt from seizure and execution, either at law or in equity.
[24] These provisions must be read in conjunction with the Family Orders and Agreements Enforcement Assistance Act, the relevant provisions of which read as follows:
Her Majesty may be garnisheed
24 Notwithstanding any other Act of Parliament preventing the garnishment of Her Majesty, Her Majesty may, for the enforcement of support orders and support provisions, be garnisheed in accordance with this Part in respect of all garnishable moneys.
Provincial garnishment law applies
25 Subject to section 26 and any regulations made under this Part, garnishment under this Part shall be in accordance with provincial garnishment law.
Inconsistencies with provincial garnishment law
26 In the event of any inconsistency between this Part or a regulation made under this Part and provincial garnishment law, the provincial garnishment law is overridden to the extent of the inconsistency.
[25] In Trick v. Trick (2006), 83 O.R. (3d) 55 (C.A.), the Court of Appeal held that as a result of these provisions, Canada Pension Plan disability benefits can be garnished to the extent of 50 per cent of the benefits that are payable.
[26] As far as Ontario Disability Support Payments are concerned, the following provisions of the Ontario Disability Support Program Act, 1997, are apposite:
No attachment, etc., of income support
18 (1) Income support under this Act,
(a) is not subject to alienation or transfer by the recipient; and
(b) is not subject to garnishment, attachment, execution, seizure or receivership under any other Act.
Deduction re money owed for family support, etc.
(2) Despite subsection (1), the Director may deduct a portion of income support to recover,
(a) the amount of a support deduction order that is enforceable against a member of the benefit unit under section 20 of the Family Responsibility and Support Arrears Enforcement Act, 1996; or
(b) the prescribed government debts owed by a member of the benefit unit.
[27] In this case, the order is not being enforced by the Family Responsibility Office, and thus s.18(2)(a) does not apply.
[28] In Metropolitan Toronto (Municipality) v. O’Brien (1995), 23 O.R. (3d) 543 (Gen. Div.), O’Brien J. held, in a case that was not a family law case, that where Canada Pension Plan payments are paid into a bank account, the bank account itself ought not to be garnishable to the extent of the CPP payments. He held that to permit garnishment of the bank account would simply be an indirect way of allowing garnishment of the CPP payments, which was impermissible. In the alternative, he held that, garnishment being a discretionary remedy, it was appropriate, in the exercise of his discretion, to decline to permit garnishment.
[29] This reasoning would clearly apply to the ODSP payments, but, subject to the ability to garnish 50 per cent of the payments, would not apply to the CPP disability payments.
[30] That leaves me, in the final analysis, with the question of whether I ought to exercise my discretion in Mr. Vetro’s favour, and decline to allow garnishment in these circumstances.
[31] The evidence is uncontradicted (although Ms. St. George sought to persuade me that I should not accept it) that since Mr. Vetro’s bankruptcy in 2013, he has been unemployed and suffers from serious psychological and psychiatric conditions. His only source of income is the CPP disability payments and the ODSP payments. He lives with his parents, and it is clear that there are no assets out of which the claim for over $800,000 can be satisfied.
[32] On the other hand, Ms. St. George does not dispute that she lives a very comfortable lifestyle, and she and her spouse have been very successful in accumulating a considerable degree of wealth. While this is irrelevant to a Motion to Change, as held by Miller J., it is relevant to the exercise of my discretion in the garnishment proceedings.
[33] The parties’ children are well-educated and three of them are working in Europe. The other is in a Master’s program in England.
[34] In my view, to permit garnishment in these circumstances would be inequitable. Mr. Vetro is close to living in poverty, and is unable to work. Ms. St. George is living in relative luxury. To deprive Mr. Vetro of his modest CPP and ODSP payments, in whole or in part, would be unjust. In the exercise of my discretion, I decline to permit garnishment, and I order that the notices of garnishment be set aside.
[35] As agreed at the hearing of the matter, the successful party will have $3,000 in costs. Accordingly, I order that Ms. St. George pay to Mr. Vetro the amount of $3,000, all-inclusive, within 30 days.