COURT FILE NO.: FS-18-00002785 and FS-18-00002785-0001

DATE: June 12, 2018

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Laura Anne Emmer, Applicant; Respondent in the Motion to Change Final Order

AND:

Jeffrey Camille Emmer, Respondent; Applicant in the Motion to Change Final Order

AND RE: Jeffrey Camille Emmer, Applicant in the motion for a refraining order

AND:

Director, Family Responsibility Office, Respondent in the motion for a refraining order

BEFORE: Kiteley J.

COUNSEL: Ryan J. Manilla, for the Applicant Jeffrey Camille Emmer in the motion for a refraining order

Diane Gillies, for the Respondent Director, Family Responsibility Office

HEARD: May 31, 2018

ENDORSEMENT

[1] On February 1, 2000, Justice Margaret Scott made a final order directing Mr. Emmer to pay to his former wife child support in the amount of $700 per month based on an annual income of $37,696.87. When Mr. Emmer received a notice dated April 25, 2018 from the Family Responsibility Office indicating his driver’s licence would be suspended on account of arrears of $60,008.73, he brought this motion for a refraining order.

[2] Counsel for the Applicant served the Director with the Form 14 motion to refrain, a Form 14A affidavit ostensibly sworn May 27, 2018 and a Form 13 financial statement ostensibly sworn April 30, 2018. During the hearing, it became apparent that there are issues about the integrity of the oath with respect to both documents but that is not a barrier to making the orders that follow.

[3] The children for whom support was ordered were born in October 1986, February 1991 and October, 1992. The affidavit sworn May 27, 2018 indicated that Mr. Emmer had stopped paying child support in 2011 when he believed that he should not have to continue paying support because the children were, at that time, aged 25, 20 and 19 and he understood that none of the children were in school full time. That affidavit also indicates that he was unemployed until December 2017 and could not afford to retain a lawyer to prepare a Motion to Change.

[4] Mr. Manilla was delayed in his arrival as a result of being in another court. In his absence I began the hearing of this motion for a refraining order at about 11:30. In the absence of his lawyer, Mr. Emmer advised that the signatures on the Form 14A affidavit and on the Form 13 were not his. That caused me to make further inquiries. Mr. Emmer confirmed that the contents of the affidavit were true. He also confirmed that the notices of assessment for 2014, 2015 and 2016 attached to the Form 13 financial statement were his and that he had given them to his lawyer. I also made inquiries of Mr. Emmer with respect to the circumstances of the children. He confirmed that the youngest child had not finished high school. She had been working full time for a long time and part time before that. He said that the oldest child had gone to adult education at age 21 and then attended a two year College program. He said that the middle child may have finished grade 10 and has not done well. All of the children continue to live with their mother.

[5] While the affidavit indicated that he had stopped paying in 2011, he told me that he had stopped in 2008 when he had a heart attack and after recovery from that, had a knee replacement and was off work another 9 months in 2009.

[6] I had made those inquiries of Mr. Emmer while he was at the counsel table.

[7] Counsel for FRO provided a Director’s Statement of Arrears that reflected arrears of $60,708.73 as of May 29, 2018. The Statement indicates that Mr. Emmer did make payments fairly regularly and, with diversion receipts, he was not seriously in arrears until 2007. The arrears steadily increased except for many diversion receipts including from CRA.

[8] Ms. Gillies acts only for the Director but she provided information that was relevant both to the motion for the refraining order and for the Motion to Change. She observed that the original amount was a global order with respect to all children. She pointed out that before service of this motion for a refraining order, the Director had notified the recipient that the case would be closed and the recipient had contacted the Director’s office to ask for continued enforcement. After the motion for the refraining order was served on May 28, 2018, Ms. Gillies advised that caseworkers had tried to reach the recipient twice and she had not responded. Ms. Gillies noted that as of October 27, 2010 when the youngest child reached 18, the arrears were $21,343.16. Since that date, as a result of diversions, Mr. Emmer had been credited with payments of $22,434.43. In other words, if the order had terminated when the youngest child reached 18 years, Mr. Emmer would have been credited with payments that exceeded his obligation by more than $1,000.

[9] If Mr. Emmer had applied for a reduction after the first child was no longer eligible and again after the second child was no longer eligible, his arrears would have been much less. I accept Mr. Emmer’s input that none of the children completed high school in the normal course, and that only the middle child returned to school for high school completion and college which, according to Mr. Emmer, was finished in about 2009. Under those circumstances, I consider it more probable than not that, had he applied in a timely way for a reduction, he would have obtained it. If so, the arrears would have been far less.

[10] Ms. Gillies referred to s. 8.2 of the Family Responsibility and Support Arrears Enforcement Act which gave discretion to the Director to enforce a lesser amount of support in accordance with the table set out in the applicable child support guidelines. It appears that none of the conditions in s. 8.2(2) had occurred which meant that the Director could not exercise the discretion.

[11] I heard from Mr. Emmer and Ms. Gillies and, before concluding, I gave instructions to the Registrar to contact Mr. Manilla and direct him to attend. She did that and I recessed until he arrived. I directed Mr. Emmer to take the witness stand and, under oath, he answered my questions and confirmed the signatures on the Form 14A affidavit and Form 13 financial statement were not his. I did not call on Mr. Manilla to make submissions.

[12] After hearing the motion on May 31, 2018, I granted a refraining order and reserved on the issue as to whether I would also terminate the final order dated February 1, 2000.

[13] As is usually the case, the support recipient was not served with the motion for the refraining order or the Form 14A affidavit or the Form 13 financial statement. She is not a party to this hearing about the refraining order.

Motion to Change Final Order dated February 1, 2000

[14] In the standard order in which the court refrains the Director from taking steps to suspend a licence, the court directs the support payor to commence a Motion to Change Final Order within a specified period of time. Pursuant to Family Law Rule 15(5) and 15(11), the support payor is required to serve the support recipient and the assignee.

[15] The court file indicates that Mr. Manilla caused a Motion to Change Final Order to be issued in Toronto on May 29, 2018 as action number FS-18-00002785. It is accompanied by a Form 15A Change Information Form and a Form 13 financial statement. I asked the Registrar to obtain these documents during the hearing of the motion for a refraining order. She was only able to locate them after the hearing of the motion for the refraining order had finished. Accordingly, I did not have an opportunity to ask Mr. Emmer if the signature on the Form 15A or the signature on the Form 13 was his. Based on my review of the Form 13, since the contents are the same as the Form 13 filed on the motion for a refraining order and the signature appears the same, I infer that the signature is not Mr. Emmer’s. I consider it likely that the signature on the Form 15A is not Mr. Emmer’s.

[16] In the Form 15A there is a Confirmation of Assignment from Toronto Employment and Social Services dated January 5, 2018. On page 3, Mr. Emmer ostensibly asks for an order terminating the child support effective October 16, 2010. On page 4 Mr. Emmer ostensibly asks for an order that the support owed to the City of Toronto be terminated as of October 16, 2010. On page 5 he ostensibly asks that the order for support be terminated at the 18^th birthday of each of the children, namely October 10, 2004, February 8, 2009 and October 17, 2010. In the Form 15A Change Information Form, the same relief is sought and on page 7, the reasons for asking the court to make the order are that the children are no longer dependant and the children have reached the age of majority and are not in full time attendance in school as at October 7, 2004, February 9, 2009 and October 18, 2010.

[17] Pursuant to Family Law Rule 2(2) and (3), the primary objective is to enable the court to deal with cases justly and that includes ensuring that the procedure is fair to all parties, saving expense and time, dealing with the case in ways that are appropriate to its importance and complexity and giving appropriate court resources to the case while taking account of the need to give resources to other cases.

[18] For the reasons that follow, I will grant Mr. Emmer’s Motion to Change Final Order issued May 29, 2018 without requiring him to properly sign the Form 15A and the Form 13, without requiring him to serve the support recipient and without requiring him to serve the City of Toronto.

[19] First, on the record before me, there is no question that the order will be terminated no later than October 16, 2010. Second, Mr. Emmer has already overpaid what he was required to pay if the order had been terminated at that date. Third, there is no point in allowing ongoing enforcement of the order because of the overpayment. Fourth, it is not fair to Mr. Emmer that he be required to retain a lawyer to regularize the documents that have already been filed. Fifth, the support recipient has received more than her entitlement. It is between the support recipient and the City of Toronto to sort out any issues arising from the assignment. Sixth, it is fair to both the support payor and the support recipient to terminate this order in the most efficient manner possible. Last, it is an inappropriate use of court resources to have the matter set before a Dispute Resolution Officer and thereafter to a judge when the outcome is a foregone conclusion.

[20] These are unusual circumstances that demand an unusual disposition.

ORDER TO GO AS FOLLOWS:

[21] As indicated in the endorsement dated May 31, 2018, the Director of the Family Responsibility Office is refrained from directing the Registrar of Motor Vehicles to suspend the driver’s licence of Jeffrey Camille Emmer.

[22] The Applicant Jeffrey Camille Emmer is not required to serve the Motion to Change final Order, the Form 15A Change Information Order and Form 13 financial statement on the support recipient or on the City of Toronto.

[23] The Motion to Change Final Order of Justice Margaret Scott dated February 1, 2000 in action # FS-18-00002785 is granted. Paragraph 10 of that order is terminated effective October 16, 2010. The Director of the Family Responsibility Office shall terminate enforcement effective immediately and return to Mr. Emmer any funds received since the Director’s Statement of Arrears dated May 29, 2018.

[24] The Director, Family Responsibility Office shall send a copy of this endorsement to the support recipient at the address in the file for her.

[25] Court staff shall send a copy of this endorsement to the support assignee, namely Toronto Employment and Social Services, 20 Lesmill Road, Toronto, M3B 2T5 FRO #0601912.

[26] Court staff shall send a copy of this endorsement to Mr. Manilla and a copy to Mr. Emmer at the address provided.

[27] If the support recipient or the City of Toronto brings a motion to set aside this order, it shall be brought to my attention.

[28] Court staff shall vacate the hearing before the Dispute Resolution Officer scheduled for August 14, 2018.

Kiteley J.

Date: 2018