COURT FILE NO.: FC-16-1781
DATE: 2018/04/06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Pierre Menard
Applicant
– and –
Angela Jodoin Feres
Respondent
Self-Represented
Alice Weatherston, for the Respondent
HEARD: April 4, 2018
Endorsement
ENGELKING J.
[1] On February 23, 2018, I heard a Motion to Change brought by Mr. Menard in respect of outstanding arrears for child support. On February 26, 2018, my Reasons for Decision were released (Menard v. Jodoin Feres, 2018 ONSC 1320).
[2] In paragraph 11 of my Reasons for Decision, I stated: “All arrears appear to have been paid by February 10, 1998 as there were a number of credits registered on that date and the outstanding balance with FRO as of that date was “0.00””.
[3] Further, at paragraph 22 of my Reasons, I stated: “If I am reading the statement of arrears correctly from FRO, it seems, as I here indicated above, that as of February 10, 1998, Mr. Menard’s balance with FRO was 0.00”.
[4] As a result of these findings, I made an order fixing Mr. Menard’s arrears of child support at $17,039.43.
[5] Ms. Jodoin Feres asserts that my interpretation of the statement of arrears from FRO was mistaken, and that, consequently, the amount of arrears fixed in my original order also contains a mistake. Given that the order was not yet taken out, Ms. Jodoin Feres brought a motion pursuant to Rule 25(19) of the Family Law Rules requesting an order correcting the mistake.
[6] Rule 25(19) of the Family Law Rules provides:
(19) CHANGING ORDER – FRAUD, MISTAKE, LACK OF NOTICE – The court may, on motion, change an order that,
(a) was obtained by fraud;
(b) contains a mistake;
(c) needs to be changed to deal with a matter that was before the court but that it did not decide;
(d) was made without notice; or
(e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.
[7] The entries on the statement of arrears in question are as follows:
10/02/1998–T1204379584612–SR&SP WDRWN141197-0.00- -2,265.00–12,185.90
10/02/1998-T1204379585612-SR&SP WDRWN141197-0.00- -5767.50- 6,418.40
10/02/1998-T1204379586612-SR&SP WDRWN141197-0.00- -5,377.00- 1,041.40
10/02/1998-T1204379587612-SR&SP WDRWN141197-0.00- -1041.40- 0.00
[8] The first number in the sequence is the date of the transaction, the second is the “Transaction Number”, the third is the “Description”, the fourth is the “Debit Amount”, the fifth is the “Credit Amount” and the last is the “Case Balance”.
[9] In support of her motion, Ms. Jodoin Feres provided an affidavit, attached as Exhibit “A” to which is a letter from the Family Responsibility Office containing a chart or legend which describes the codes used by FRO in the statement of arrears. According to the chart, “SR & SP WDRWN” is an “Adjustment for signed NOW (Notice of Withdrawal)”. It is not a payment or a credit, although it shows up in the “Credit Amount” column. Payments, in fact, are noted as “Payments” or “FOAEA Diversion”, payments received through a federal source, or “SR DIR PMT”, adjustment for direct payments (outside of FRO).
[10] All of this is to say that Mr. Menard’s balance of arrears as of February 10, 1998 was not 0.00; rather, it was, according to FRO, $14,450.90 as of the last support accrual on February 1, 1998. Ms. Jodoin Feres acknowledges, however, that some payments were made by Mr. Menard prior to the withdrawal from enforcement by FRO which were not recorded by FRO. Her evidence is that the amount of arrears owing at the point of the withdrawal was $12,109.00. This is based on the outstanding balance indicated by FRO at the end of 1996 of $8032.50 plus arrears accrued in 1997 of $4067.00.
[11] During the course of the motion on February 23, 2018, both Mr. Menard and Ms. Jodoin Feres provided me with a list of the payments each stated were made by Mr. Menard outside of FRO over the years. For 1997, Ms. Jodoin Feres’ list indicates that Mr. Menard paid $2110 directly to her. (These were the only payments for child support made, as none were collected by FRO in 1997). Mr. Menard’s list also indicates that he paid $2100 in 1997, as does his income tax return for that year. Mr. Menard was obligated to pay $6177.00 in child support in 1997, therefore, he was $4067 in arrears in 1997. The outstanding balance indicated by FRO at the end of 1996 was $8032.50, which, when added to the arrears accrued in 1997 of $4067.00, results in an outstanding balance of $12,109.00 at the time that enforcement of child support was withdrawn from FRO in February of 1998. These arrears should be added to those fixed by me in my Reasons for Decision dated February 26, 2018, for a total of $29,148.43 ($17,039.43 + $12,109.00 = $29,148.43).
Order
[12] My order is as follows:
Paragraph number 2) of my Order of February 26, 2018 shall be varied to read “Arrears for child support owing pursuant to the orders of Justice Michel dated August 10, 1995 and Justice Polowin dated April 22, 2004 are fixed at $29,148.43.”
[13] The remainder of my Order of February 26, 2018 shall remain in effect.
[14] There is no order as to costs for the motion.
Madam Justice Tracy Engelking
Released: April 6, 2018
COURT FILE NO.: FC-16-1781
DATE: 2018/04/06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Pierre Menard
Applicant
– and –
Angela Jodoin Feres
Respondent
endorsement
ENGELKING J.
Released: April 6, 2018