Please note the amendment of the release date
COURT FILE NO.: F1787/13
DATE: May 31, 2018
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: Adam Edward Campbell, applicant
AND:
Katie Wentzell, respondent
BEFORE: KORPAN J.
COUNSEL: Peter D. Eberlie for the applicant
Katie Wentzell in person
HEARD: February 28, 2018
ENDORSEMENT
Leave to Bring Motion
[1] This was a high conflict custody and access case that began in December 2013. After a 20 day trial followed by written submissions in 2016, McSorley J. released her comprehensive reasons on July 19, 2017. The amended final order of the same date was issued on August 28, 2017.
[2] In her reasons, McSorley J. wrote that “the parents must stop running to court every time they are unable to do what separated parents everywhere do - that is agree on what is best for [their child].” She clearly delineated decision-making authority between the parents in the amended final order and ordered that all other parenting disputes that the parents are unable to resolve are to be dealt with by a parenting coordinator.
[3] The only motion that was preserved by the amended final order was a motion to choose the parenting coordinator if the parents could not agree. The parents were unable to agree and I chose the parenting coordinator by order dated November 16, 2017.
[4] Six months after the amended final order was issued the applicant father seeks leave to bring an interlocutory motion for production of the Children’s Aid Society of London and Middlesex records since September 2016 when the evidence at the trial was completed. He says that he needs these records to “defend” himself from the false allegations being made by the respondent mother and so the parenting coordinator has all of the information available to her on the outstanding issues and the court can see exactly what the Society has recorded in respect of those allegations.
[5] However, there is no underlying originating proceeding or outstanding case to ground the motion. The case ended when the amended final order was issued on August 28, 2017. The application is spent.
[6] This is not a motion to change. Nor is it a motion specifically permitted under the Family Law Rules, O. Reg. 114/99 (“FLR”) after a final order has been issued (such as a motion to correct a mistake in the order, to enforce a term of the order or for contempt).
[7] I do not view r. 2(2) of the FLR which requires the court to deal with cases justly (by ensuring that the procedure is fair to all parties, by saving expense and time, by dealing with the case in ways that are appropriate to its importance and complexity and by giving appropriate court resources to the case while taking account of the need to give resources to other cases) as conferring jurisdiction to hear the father’s interlocutory motion when there is no existing case to ground the motion.
[8] For these reasons, the motion is dismissed.
Garnishment Hearing
[9] This garnishment hearing stems from a garnishment dispute dated February 2, 2018 filed by the mother pursuant to r. 29(16) of the FLR.
[10] The mother owes costs and interest to the father pursuant to interim costs awards made in this case. The father successfully garnished the mother’s employment earnings to collect some of the costs.
[11] On December 12, 2017 the mother lost her employment that had paid her approximately $30,000 per year. The father subsequently served a notice of garnishment for $53,974.02 on Scotiabank which effectively froze the mother’s bank account. The garnishment has been stayed since February 7, 2018 by court order.
[12] The parties’ child is four years old and is in junior kindergarten. Pursuant to the final amended order the child is in the equal shared care of the parents, the father is obliged to pay child support to the mother of $1,263 per month based on an imputed income of $150,000 and the father’s claim to have the interim costs awards owed to him designated as costs for the purpose of support was dismissed.
[13] The child support order is being enforced by the Family Responsibility Office. In addition to the child support, the mother receives a Canada Child Benefit for the child.
[14] The mother receives the child support and Canada Child Benefit for the benefit of the child. If she were not caring for the child, she would receive neither. The maximum annual Canada Child Benefit for a child under six is $6,400. The monthly amount coming into the mother’s household from the child support and Canada Child Benefit cannot amount to more than $1,796.
[15] The mother requests that the garnishment be suspended until she obtains employment. She submits that by garnishing her bank account the father is effectively garnishing the child support and the Canada Child Benefit and that she is left without monies to support the child or to pay for rent, pay bills or buy groceries.
[16] Notwithstanding that garnishment 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 Vetro v. Vetro, 2017 CarswellOnt 19320 (Ont. S.C.J.), at para. 21, citing Parker v. Parker, 2014 CarswellOnt 7420 (Ont. Div. Ct.), at para. 4; 20 Toronto Street Holdings Ltd. v. Coffee, Tea or Me Bakeries Inc., 2001 CarswellOnt 593 (Ont. S.C.J.), at para. 5; I.U.P.A.T., Local 200 v. S & S Glass & Aluminum (1993) Ltd., 2004 CarswellOnt 1221 (Ont. C.A.), at paras. 19-20.
[17] Child support is the right of the child: D.B.S. v. S.R.G., 2006 SCC 37 (S.C.C.), at para. 38. Although the support is paid to the mother, the payments are for the support and benefit of the child.
[18] Courts have declined to place a solicitor’s charging order against child support payments (Lang v. Ball, 1988 CarswellOnt 3532 (Ont. H.C.); Duhnych v. Duhnych, 2004 CarswellOnt 2563 (Ont. S.C.J.)) and refused to set-off monetary awards to a spouse against child support obligations (Woo v. Chin, 2007 CarswellOnt 7606 (Ont. S.C.J.); Walsh v. Walsh, 2008 CanLII 586 (ON SC), 2008 CarswellOnt 99 (Ont. S.C.J.); Uriu v. Rivadeneyra, 2017 CarswellOnt 19794 (Ont. S.C.J.)).
[19] In the circumstances of this case, it is an appropriate exercise of discretion to set aside the garnishment to Scotiabank to the extent of the child support payments and the Canada Child Benefit. I find that to permit garnishment of the child support and Canada Child Benefit by garnishment of the mother’s bank account would be inequitable. In the interests of justice the mother’s ability to use the child support and the Canada Child Benefit for the benefit of the child must take priority over the father’s right to collect his costs. Allowing the garnishment of the child support payments and the Canada Child Benefit from the mother’s bank account to stand would create a situation where the child would suffer.
[20] The mother must disclose the amount and source of the funds that were in her Scotiabank bank account on the day that Scotiabank was served with the notice of garnishment and that have been deposited since. I note that there is no affidavit of service in the file. If the account contains funds other than the child support payments and Canada Child Benefit, the mother will need to provide an accounting for tracing purposes. Going forward she should arrange for the direct deposit of the child support payments and Canada Child Benefit into a separate bank account to isolate them from the other funds that she receives.
[21] For these reasons, the following order shall issue:
The garnishment to Scotiabank is set aside to the extent of the child support payments and the Canada Child Benefit;
The respondent shall, by June 18, 2018, serve and file an affidavit that sets out an accounting and tracing of the funds that were in her Scotiabank bank account on the date that Scotiabank was served with the notice of garnishment and that have been deposited since which affidavit shall include any necessary supporting documents and the parties shall then attempt to resolve the accounting;
The respondent shall immediately arrange for the direct deposit of the child support payments and Canada Child Benefit into a bank account for those payments only;
The respondent shall advise the applicant of the name and address of her employer immediately upon obtaining employment;
If the parties are unable to resolve the accounting and tracing of the Scotiabank funds and require the court to resolve the issue, this hearing is adjourned to July 4, 2018 at 9:30 a.m. to be spoken to before me unless counsel or a party is unavailable, in which case they shall obtain a new date before me from the trial coordinator.
[22] Costs are reserved to July 4, 2018 at 9:30 a.m. unless counsel or a party is unavailable in which case costs are reserved to the date set by the trial coordinator.
“Justice D.M. Korpan”
Justice D.M. Korpan
Date: May 31, 2018