COURT FILE NO.: FC-17-53268-00

DATE: 20180404

ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT

BETWEEN:

Mohammad-Reza Moussavi Applicant

– and –

Janice Elizabeth Moussavi Respondent

Sage Harvey, for the Applicant Charles Baker, for the Respondent

HEARD: March 28, 2018

REASONS FOR DECISION

CHARNEY J.:

Introduction

1The Applicant Father (applicant) brings this motion for summary judgment under rule 16 of the Family Law Rules, O. Reg. 114/99. He seeks an order reducing the $2,000 per month child support paid to the Respondent Mother (respondent) pursuant to a separation agreement signed by the parties on October 2, 2012 (the separation agreement), and reducing his child support arrears (currently $17,793.54) to $0.

2In addition, the applicant seeks an order reducing the amount of life insurance he is obligated to maintain under the separation agreement.

Facts

3The parties were married in 2004, and have two children, aged 12 and 10. The parties separated in August 2012, and signed a separation agreement on October 2, 2012. The separation agreement gave the respondent sole custody of the children and established an access schedule for the applicant. The separation agreement provided that there would be no spousal support payable.

4Paragraph 5.3 of the separation agreement provides that the applicant is to pay the respondent $2,000 per month child support beginning November 1, 2012. At the time of this agreement the applicant alleges that his annual income was $120,000, and this amount is expressly referenced as the basis for the calculation of child support.

5The difficulty lies in the fact that in 2012 the Table amount under the Federal Child Support Guidelines SOR/97-175 (CSG) for two children at an annual income of $120,000 was only $1,660 per month, not $2,000. This disparity has given rise to a dispute between the parties as to the intention of the separation agreement.

6The applicant alleges that the separation agreement was drafted without the assistance of counsel, and the respondent alleges that it was drafted by the applicant and that she did not have an opportunity to seek independent legal advice.

7The relevant terms of the separation agreement provide:

Child Support

5.1 In this section

(a) “Table” and “income” mean “Table” and “income” as those terms are defined in s. 2(1) of the Federal Child Support Guidelines,

(b) “special or extraordinary expenses” means “special or extraordinary expenses” as this phrase is defined in s. 7(1) of the Guidelines, and

(c) “child support” refers to the monthly amount upon which the parties have agreed and may include both Table support and special or extraordinary expenses.

5.2 For purposes of determining child support for [the children]…Mohammad-Reza Moussavi’s annual income is $120,000.00

5.3 Mohammad-Reza Moussavi will pay to Janice Elizabeth Moussavi as child support…:

(a) the Table amount of $2,000.00 starting November 1st 2012 and on the 1st day of each month thereafter; and

(b) the proportionate share of the special or extraordinary expenses as set out in the applicable special or extraordinary expenses sections below;

until a terminating event under section 5.8 or a change under section 5.15.

5.5 Mohammad-Reza Moussavi will pay Janice Elizabeth Moussavi to 60 percent of the children’s special or extraordinary expenses within five days of Janice Elizabeth Moussavi delivering proof to him of the expense…

Annual Review

5.11 Once a year, if either party asks in writing, Mohammad-Reza Moussavi and Janice Elizabeth Moussavi will review the child support arrangements in this Agreement and, if they do not agree about any change, they will use the section of this Agreement entitled “Dispute Resolution” to resolve the issue(s).

Disclosure

5.12 Each year by July 1st, both parties will provide the following information to the other:

(a) the documents required in s. 21(1) of the Guidelines that have not previously been provided,

5.13 Until the support is adjusted by an amending agreement, court order or arbitration award, will continue to pay the child support…under the parties’ most recent written agreement, court order or arbitration award.

Variation Because of Material Change

Grounds for Variation

5.14 In addition to a yearly review, either Janice Elizabeth Moussavi or Mohammad-Reza Moussavi may seek a change in child support if there is a material change in the condition, means, needs or other circumstances of, either Janice Elizabeth Moussavi, Mohammad-Reza Moussavi or a child that would affect child support.

Material Change Defined

5.15 A material change in the condition, means, needs or other circumstances of the parents or the children may be foreseen or unforeseen, foreseeable or unforeseeable, and may include:

(a) a material change in either party’s financial position,

Life Insurance

9.1 For as long as Mohammad-Reza Moussavi is obligated to pay child support to Janice Elizabeth Moussavi, he will maintain a life insurance policy in force on his life with a face amount of at least $1,000,000.00. He will designate Janice Elizabeth Moussavi as the irrevocable beneficiary of the policy.

8On June 21, 2011, the year before the parties separated, the applicant was involved in a drinking and driving accident on Highway 407 and was charged with operating a motor vehicle while impaired (over 80) and dangerous operation of a motor vehicle causing bodily harm. On March 28, 2013, he was charged with failing to comply with his Recognizance of Bail for driving while prohibited (this charge was later withdrawn). On February 20, 2015 the applicant was convicted of dangerous driving causing bodily harm and sentenced to 15 months in jail and a three year driving suspension. He appealed his conviction, but the appeal was dismissed.

9The applicant began serving his sentence on December 6, 2016, and was released on parole on April 29, 2017, having served approximately 5 months of his sentence.

10On December 16, 2016 the applicant lost his job as a result of his jail sentence because his employer could not give him a 5 month leave of absence.

11The applicant continued to pay child support until his incarceration, but once incarcerated he fell behind on his child support payments. The applicant contends that given the loss of his employment he was unable to afford the child support payments.

12The applicant has sought work, but as a result of his criminal record had difficulty finding employment at his previous salary. In April 2017 he accepted a job that paid an annual salary of only $30,000 per year. He continued to work at that job until August 2017, and did not receive any other income.

13On August 15, 2017 the applicant started working at a new job that pays an annual salary of $125,000. He has provided pay stubs indicating that he earns $4,807.70 every two weeks, and states that he “did not receive any bonuses or additional compensation”.

14The applicant’s affidavit indicates that his total income for 2017 was $76,595, comprised of $7,500 from his few months at the $30,000 per year job and $69,095.81 from his work since August 15, 2017 at the $125,000 per year job.

15Since February 2018 the applicant has paid child support of $1,777 per month.

16The applicant acknowledges that his income for 2014 was $156,090, and that he should have paid $2,081.43 per month under the CSG.

17His income for 2015 was $145,978, and he states that he should have paid only $1,965.54 per month under the CSG.

18His income for 2016 was $141,430, and he states that he should have paid only $1,986.71 per month under the CSG.

19The applicant has provided Notices of Assessment for 2014, 2015 and 2016.

Position of the Applicant

20Since the applicant paid $2,000 per month pursuant to the terms of the separation agreement during the years 2014 to 2016, he takes the position that he overpaid in 2015 and 2016 and asks to be credited for the overpayment against his arrears.

21Based on his income in 2017 the applicant seeks summary judgment to vary his child support as follows:

a. From January 1, 2017 to April 30, 2017, child support should be reduced to $0 because he was earning no income.

b. From May 1, 2017 to August 31, 2017, child support should be reduced to $438 per month based on an annual income of $30,000.

c. From September 1, 2017 to November 30, 2017, child support should be reduced to $1,721 per month based on an annual income of $125,000.

d. From December 1, 2017 onwards child support should be $1,777 a month based on an annual income of $125,000, to take into account the updated CSG.

22The applicant contends that when child support is reduced for 2015, 2016 and 2017 in accordance with the Table amount, his arrears are reduced to nil.

23The applicant also takes the position that $250,000 in life insurance is sufficient to secure child support obligations of $1,721 per month, and has provided a copy of a Divorcemate calculation in support of this position. He currently has $250,000 in life insurance as an employee benefit at his work.

Position of the Respondent

24The respondent opposes the relief claimed on both procedural and substantive grounds.

25The respondent takes the position that the applicant should not be able to proceed with a motion in the absence of a case conference. In fact, a case conference was held before a Dispute Resolution Officer on July 24, 2017. Moreover, rule 14(4) of the Family Law Rules, which precludes the hearing of motions before a conference except in situations of urgency or hardship, does not apply to motions for summary judgment under rule 16 - see rule 14(6)(c).

26The respondent argues that this is not an appropriate case for summary judgment because there are genuine issues requiring a trial. The respondent makes the following allegations in her affidavit:

27The respondent alleges that the applicant has not paid any s. 7 expenses, notwithstanding his agreement to pay 60%. She has, however, provided no evidence as to the amount of s. 7 expenses owing, or any evidence that she provided the applicant with proof of s. 7 expenses as required by the separation agreement.

28The respondent alleges that the applicant earned $236,000 in 2012, but advised her that his income was only $120,000 when she signed the separation agreement. She does not indicate the source of her present knowledge, but claims a recalculation of his support obligations in that year based on his real income.

29The respondent has requested disclosure of the applicant’s complete income tax returns for the years 2012 to 2016 with the accompanying Notices of Assessment. The applicant has provided his Notices of Assessment for only 2014 – 2016. It appears that the applicant has refused to provide his Notices of Assessment for 2012 and 2013 (these were not in the motion record of either party) because he takes the position that “the respondent has not identified any special circumstances that would justify going beyond a three year retroactive period for support.”

30The respondent takes the position that the separation agreement was deliberately drafted to provide $2,000 per month in child support for income of $120,000, and there is no basis to decrease child support to less than $2,000 per month as long as the applicant’s income is above that $120,000 per year benchmark. He should not now be permitted to pay only $1,777 on income of $125,000, which is $5,000 per year more than the benchmark specified in the separation agreement. Finally, there was never any agreement that the difference between what the applicant agreed to pay and the Table amount could be used by the applicant as a set-off or future credit if he fell into arrears of support.

Motion for Summary Judgment

31Rule 16 of the Family Law Rules sets out the procedure for motions for summary judgment. Rule 16(6) provides: “If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.”

32Rule 16(6.1) sets out the court’s powers on a motion for summary judgment:

(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

33Rule 16(6.1) is now identical to rule 20.04(2.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

34Rule 16(6.2), like rule 20.04(2.2) of the Rules of Civil Procedure, permits the judge hearing the motion to order that oral evidence be presented by one or more parties (a “mini-trial”).

35The court’s powers on summary judgment motions were extensively reviewed by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, where it laid out a two-part roadmap for summary judgment motions. Given the similarity between the Family Law Rules and the Rules of Civil Procedure, the Supreme Court’s roadmap in Hryniak is now applicable to summary judgment motions under the Family Law Rules. The Court stated, at para. 66:

On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

36Even with these extended powers, a motion for summary judgment is appropriate only if the material provided on the motion “gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute” (Hryniak, at para. 50).

37In Hryniak, the Supreme Court held (at para. 49) that there will be no genuine issue for trial when the summary judgment process “(1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.”

38To defeat a motion for summary judgment, the responding party must put forward some evidence to show that there is a genuine issue requiring a trial. A responding party may not rest on mere allegations or denials of the party’s pleadings, but must set out—in affidavit material or other evidence—specific facts establishing a genuine issue requiring a trial.

39The motion judge is entitled to assume that the record contains all of the evidence that would be introduced by both parties at trial. A summary judgment motion cannot be defeated by vague references as to what may be adduced if the matter is allowed to proceed to trial.

40Pursuant to rule 16(5) of the Family Law Rules (like rule 20.02(1) of the Rules of Civil Procedure) affidavits may be made on information and belief, but “if a party’s evidence is not from a person who has personal knowledge of the facts in dispute” the court may, if appropriate “draw conclusions unfavourable to the party”.

41If the court does not make a final order, or makes an order for the trial of an issue, rule 16(9) provides that the court may:

(a) specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial (in which case the order governs how the trial proceeds, unless the trial judge orders otherwise);

(b) give directions; and

(c) impose conditions (for example, require a party to pay money into court as security, or limit a party’s pretrial disclosure).

42These powers are in addition to the courts powers under rule 1(7.2), which provides a long list of procedural conditions and directions that a court may impose in any family law proceeding.

43It is now well settled that “both parties on a summary judgment motion have an obligation to put their best foot forward” (see Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753 at para. 9). Given the onus placed on the moving party to provide supporting affidavit or other evidence under Rule 16(4) (the equivalent to rule 20.01of the Rules of Civil Procedure), “it is not just the responding party who has an obligation to ‘lead trump or risk losing’” (see Ipex Inc. v. Lubrizol Advanced Materials Canada, 2015 ONSC 6580 at para. 28).

44See also: Crawford v. Toronto (City), 2018 ONSC 1729 at para. 38:

Thus, if the moving party meets the evidentiary burden of producing evidence on which the court could conclude that there is no genuine issue of material fact requiring a trial, the responding party must either refute or counter the moving party’s evidence or risk a summary judgment.

45An applicant (or respondent) bringing a motion for summary judgment does not thereby reverse the onus of proof or alleviate his onus to prove the elements of his claim. See for example, Sanzone v. Schechter, 2016 ONCA 566 at paras. 30-32, confirming the initial evidentiary obligation borne by the moving party (in that case the defendant) on a summary judgment motion.

46While Rule 16(6.1) provides the court hearing a summary judgment motion with “enhanced forensic tools” to deal with conflicting evidence on factual matters, the court should employ these tools and decide a motion for summary judgment only if it can do so fairly: Eastwood Square Kitchener Inc. v. Value Village Stores, Inc., 2017 ONSC 832 at paras. 3-6 (and cases cited therein).

47Finally, the Court of Appeal has cautioned against granting motions for partial summary judgment where there is a risk of re-litigation of issues and inconsistent outcomes. In Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450 the Court held that although the summary judgment rules now permit the fact-finding process to be staged, the court is obliged to assess the advisability of a staged summary judgment process in the context of the “litigation as a whole” (paras. 33-35). The Court stated, at para. 44:

Evidence by affidavit, prepared by a party’s legal counsel, which may include voluminous exhibits, can obscure the affiant’s authentic voice. This makes the motion judge’s task of assessing credibility and reliability especially difficult in a summary judgment and mini-trial context. Great care must be taken by the motion judge to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters, in a way that would not likely occur in a full trial where the trial judge sees and hears it all.

48An important distinction between the summary judgement provisions of the Rules of Civil Procedure and the Family Law Rules is that the former requires the filing of a factum (Rule 20.03), while the latter does not.

49That said, the Consolidated Practice Direction Concerning Family Cases in Central East Region §43 does require factums (maximum 20 pages) for long motions (motions expected to take more than one hour), but not for short motions. Since most motions for summary judgment will be long motions, a factum will usually be required.

50This summary judgment motion was scheduled by the applicant as a short motion. Notwithstanding my scepticism, and to counsel’s credit, it was argued in just under one hour.

51While this motion for summary judgment proceeded in accordance with the rules and practice direction, I question the advisability of proceeding on a summary judgment motion of this nature without a factum. The legal issues raised by this motion are complex and were barely touched on in oral argument. They would have benefited from considered legal analysis. The applicant’s affidavit includes several assertions that are legal argument. For example, as indicated above, the applicant asserts in his affidavit that “the respondent has not identified any special circumstances that would justify going beyond a three year retroactive period for support.” This assertion (which I will return to again in my legal analysis) is plainly legal argument, and has no place in an affidavit. While the rules may not require a factum, an affidavit should not be used as a substitute for a factum.

Analysis

52In my view, the affidavit evidence filed by both parties to this motion falls short of giving me the confidence that I “can find the necessary facts and apply the relevant legal principles so as to resolve the dispute”. Based on the record provided, the summary judgment process does not provide me with “the evidence required to fairly and justly adjudicate the dispute”.

53I will deal with the applicant’s affidavit evidence, since he has the initial onus to demonstrate that there is no genuine issue requiring a trial.

54The applicant seeks to have his child support obligations reduced for 2015, 2016 and 2017 in accordance with the Table amount, and his arrears reduced to nil. While the applicant seeks a retroactive reduction, he has not provided the respondent with the disclosure of his income tax returns and Notices of Assessment for 2012 and 2013, taking the position that “the respondent has not identified any special circumstances that would justify going beyond a three year retroactive period for support.”

55The Supreme Court of Canada has held that “it will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor parent”: D.B.S. v. S.R.G, [2006] 2 SCR 231, 2006 SCC 37, at para. 123. The Court stated, however, that this guideline does not apply if the payor parent engages in “blameworthy behaviour”. “A payor parent should not be permitted to profit from his/her wrongdoing”: D.B.S. para. 125.

56In the present case the respondent alleges that the applicant engaged in blameworthy behaviour by misleading her with regard to his income when she signed the separation agreement in October 2012. She alleges that he earned $236,000 that year, not the $120,000 he claimed and on which the agreed child support payments were based.

57It is not for the applicant to conclude that the respondent has “not identified any special circumstances that would justify going beyond a three year retroactive period for support”; that is a legal issue that the court will decide once it has all of the relevant evidence. The applicant cannot ask for a retroactive adjustment to his child support but refuse to provide the respondent with full disclosure of his past earned income. Nor can the applicant bring a motion for summary judgment asking the court to make factual findings on the basis of the incomplete record that the applicant has chosen to disclose. In addition, the terms of the separation agreement (5.12(a)) required the applicant to disclose his personal income tax returns every year by July 1.

58The actual income earned by the applicant the year that the separation agreement was signed is significant evidence with respect to the context and interpretation of that agreement.

59In D.B.S. the Supreme Court of Canada recognized important differences between court ordered support and support obligations previously set out in an agreement between the parents. When the parties sign a separation agreement, the financial terms of the agreement are usually a package deal. The Court stated, at para. 78:

In most circumstances, however, agreements reached by the parents should be given considerable weight. In so doing, courts should recognize that these agreements were likely considered holistically by the parents, such that a smaller amount of child support may be explained by a larger amount of spousal support for the custodial parent. Therefore, it is often unwise for courts to disrupt the equilibrium achieved by parents. However, as is the case with court orders, where circumstances have changed (or were never as they first appeared) and the actual support obligations of the payor parent have not been met, courts may order a retroactive award so long as the applicable statutory regime permits it…

60In order to decide the issues raised in this motion for summary judgment, the court must decide between two conflicting interpretations of the terms of the separation agreement. In order to make this decision the court must ask whether the $2,000 per month child support was a generous provision above the Table amount, or a ploy by the applicant to appear generous while actually avoiding his full legal obligation. Assuming that the applicant’s income in 2012 was $120,000, was the greater than Table amount child support a mistake, as the applicant contends, or was it the quid pro quo for the respondent agreeing to receive no spousal support? The applicant’s actual income in 2012 is an important contextual consideration for the proper interpretation of the separation agreement. The applicant cannot ask the court to vary the terms of the 2012 agreement without the full factual context necessary for its proper interpretation. The current record is not adequate for that purpose.

61There is also some confusion regarding the applicant’s income for 2017. The applicant asks that the court calculate his support payments on a quarterly basis, rather than on his annual income for 2017. This provides a financial advantage to the applicant. Calculated on a quarterly basis, the applicant’s total child support payments for 2017 equal $8,692 (four months at $0, four months at $438, three months at $1,721, and one month at $1,777). Calculated on the basis of his 2017 annual income of $76,595, the applicant’s total child support payments for 2017 equal $13,524 ($1,127 X 12).

62The applicant has provided no legal authority – either in the separation agreement or in the Federal Child Support Guidelines – for calculating child support on the basis of quarterly income rather than annual income.

63Moreover, the applicant claims that his income from his current employer is $125,000 per year, based on bi-weekly gross payments of $4807.70. His affidavit states that he has not received any bonuses or additional compensation.

64The applicant’s contract of employment, however, states that he is eligible for a commission plan in addition to his base salary, and that commissions are paid once a month in arrears.

65The applicant’s T4 indicates that he has earned a total of $69,095.81 from this employer from August 15, 2017 to year end. There are approximately 20 weeks from August 15, 2017 to the year end, which equals $6,909.00 on a bi-weekly basis, not $4,807.70 as claimed. If the applicant continues to earn $6,909 bi-weekly in 2018, his annualized income will be approximately $180,000. Based on $6,909 bi-weekly and a corresponding annualized income of $180,000, his monthly support payments for August to December 2017 (if calculated on a quarterly basis as contended by the applicant) would be $2,354, not $1,721 as claimed.

66The applicant’s affidavit provides no explanation for these discrepancies or where this additional $20,000 in income came from. He has not provided his Income Tax Return or his Notice of Assessment for 2017. He has provided only his three most recent pay stubs for 2017. He has provided no pay stubs for 2018.

67The applicant has not met his initial evidentiary onus under rule 16(4) to show that there is no genuine issue requiring a trial. Given the evidence presented on this motion, a trial is required to determine the proper interpretation of the separation agreement, the applicant’s income in 2012, whether retroactive adjustments should be made beyond three years, the applicant’s income for the third quarter of 2017, and his income for 2018.

68The record presented on this summary judgment motion does not permit me to make the necessary findings of fact to decide any of these issues.

69With respect to the applicant’s claim to reduce his life insurance from $1 million to $250,000, this provision was also part of the original separation agreement agreed to by the applicant. I am mindful of the Supreme Court of Canada’s caution in D.B.S. that the financial terms included in separation agreements are usually a package deal, and that it is “unwise for courts to disrupt the equilibrium”.

70While the applicant’s position on this issue might be perfectly reasonable, it is not what he agreed to in 2012, and I am not prepared to deal with this term of the separation agreement in isolation. Moreover, the applicant has provided no evidence as to the comparative costs of $250,000 term life insurance and $1 million term life insurance. Without such comparative costing, the court has no idea what the financial impact of the original term was, or the proposed revision would be.

71When the Supreme Court’s caution in D.B.S is combined with the Court of Appeal’s caveat in Baywood Homes against granting motions for partial summary judgment, it is clear that the court should not engage in a piecemeal analysis of the separation agreement on this motion for summary judgment.

Conclusion

72Based on the foregoing analysis, the applicant’s motion for summary judgment is dismissed. For the same reasons his proposed alternative relief of a temporary order reducing his support and prohibiting FRO from enforcing the child support provisions of the separation agreement is also dismissed.

73Pursuant to rules 16(9) and 1(7.2) of the Family Law Rules, the applicant is ordered to disclose his complete income tax returns with attachments for the taxation years 2012 to 2017, with the accompanying Notices of Assessment, and all of his pay stubs for the year 2017 and 2018 (to the date of this order). When this disclosure is complete (except for the Notice of Assessment for 2017, if not yet available), the parties must schedule a case conference before proceeding further with the applicant’s motion to vary the terms of the separation agreement. Pay stubs for 2018 must be updated to the date of the case conference.

74Given the dismissal of the motion, the respondent is presumptively entitled to costs (rule 24(1)). At the hearing the parties agreed that costs should be paid to the successful party on a partial indemnity basis and fixed at $4,000. Accordingly, the applicant is ordered to pay the respondent costs fixed at $4,000 within 45 days.