COURT FILE NO.: 07-937
DATE: July 17, 2018
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Foran v Couette
BETWEEN: Gwendolen Foran, Applicant and Colin Couette, Respondent
BEFORE: Honourable Mr Justice Martin James
COUNSEL: Self-Represented Applicant
Self-Represented Respondent
DATE HEARD: June 29, 2017
ENDORSEMENT
[1] This is a motion for contempt of court brought by Gwendolen Foran (the “applicant”) alleging that her former spouse, Colin Couette (the “respondent”) did not provide a copy of his 2016 notice of assessment from the Canada Revenue Agency for the purpose of adjusting his child support obligations.
[2] By way of background, these parties have been using the court system as their battleground for years. The Continuing Record now extends to nine volumes. In or about 2014 the parties were restricted from bringing further proceedings without leave. Since then the respondent sought leave to bring a contempt motion due to an access issue (leave refused). In August 2015 the applicant sought leave to bring a motion respecting retroactive and on-going child support (leave granted). In December 2016 the applicant was again granted leave to bring a contempt motion because the respondent had not provided his 2015 notice of assessment. That motion was successful and a finding of contempt of court was made. Eventually the required documentation was supplied. Costs of $2,500 were assessed. In March, 2018, the applicant was granted leave to bring this motion.
[3] The position of the applicant is quite simple. The parties are required to exchange their notices of assessment annually no later than June 1st pursuant to para. 20 of the order of Ray J. dated February 22, 2013 and the respondent did not do so. The applicant says that the respondent has a demonstrated track record of resisting/refusing to comply with this requirement. The court record supports this contention.
[4] The position of the respondent is that he filed his 2016 income tax return in November, 2017, received his notice of assessment in January 2018 and provided a copy to the applicant by enclosing it in the yellow plastic bag that they exchange during access exchanges. He said he also included at the same time a Form 15D which is used to amend the child support on consent because his 2016 income was less than his 2015 income. He said he never got the Form 15D back from the applicant which would have permitted him to amend the support order to a lower amount.
[5] The applicant says she never received or saw the notice of assessment or the Form 15D. She said if she had seen it, she would not have brought this contempt motion against the respondent.
[6] The respondent also says he pays child support for other children as well. F.R.O. deducts the maximum permissible amount from his pay which puts him below the poverty line for the family of five which he is currently supporting. He requests a reduction in his child support obligations to an amount below the amount payable pursuant to the child support tables but importantly, he has not brought a motion requesting this relief and has not applied for leave to bring such a motion. Accordingly, this request ought to be ignored.
[7] I have taken the following considerations into account:
a) The respondent has a track record of not complying with his obligation to provide annual updates of his income.
b) Even if what the respondent alleges is true, the document the respondent says he provided to the applicant is not a notice of assessment. The document he attached to his affidavit is a tax assessment. A tax assessment is based solely on information supplied by the taxpayer. The document contains a warning that C.R.A. “may review your return later to verify income you reported or deductions or credits you claimed.” There are important differences in the reliability of the document that the respondent says he sent to the applicant and a notice of assessment from C.R.A.
c) The respondent is aware of what a notice of assessment is and what it looks like. He was previously ordered to cease providing redacted copies of his notices of assessment to the applicant.
d) The respondent is aware of how documents are to be served in court proceedings. He does not have any confirmatory evidence to prove that he sent his 2016 notice of assessment to the applicant such as an affidavit of service, a covering letter, an email or a fax confirmation. Enclosing important papers in the bag the parties exchange at access exchanges without any discussion or notice to the other side is not an acceptable method of serving documents.
e) Logic would suggest that the respondent would be keen to reduce the child support payable if, as he says, his 2016 income went down. In this situation, would he not provide the required income documents promptly? On the other hand, logic also suggests that the respondent would have followed up when the applicant did not return the documentation that would have allowed him to pay less child support to the applicant. Also puzzling is the fact that when this motion was addressed in court initially, the respondent didn’t say that he had already provided proof of his income. Common sense suggests that the respondent would have promptly said something like, “I already gave my income verification to the applicant. It was in the bag with the communication book. If she didn’t get it, I can provide another copy.” Instead, he simply asked for an adjournment to prepare a response. The fact that he didn’t say anything when he had the opportunity to do so is circumstantial evidence that he did not provide the required, or any, income information to the applicant.
Disposition
[8] I am satisfied that the applicant has proven beyond a reasonable doubt that the respondent did not provide a copy of his 2016 notice of assessment to the applicant in accordance with the applicable court order and is therefore in contempt of court. The respondent is ordered to provide a copy of his 2016 notice of assessment to the applicant within 15 days.
[9] In addition, the respondent is ordered to provide a copy of his 2017 notice of assessment to the applicant within 15 days as well.
[10] If the respondent has not yet filed his 2017 tax return or, having filed, has not yet received his 2017 notice of assessment, he must serve on the applicant a statement to this effect so that the applicant is aware of the current state of his 2017 tax filings. This statement must be served within 15 days as well.
[11] In the event that the respondent has not filed his 2017 tax return he must, in addition to delivering the required statement to the applicant, proceed to file his 2017 tax return by August 17, 2018 and serve a copy of the notice of assessment from C.R.A. on the applicant forthwith upon his receipt of same.
[12] After the respondent has provided his 2016 and 2017 notices of assessment, the parties shall have a limited right to adjust the child support payable. The respondent shall not be entitled to a retroactive adjustment in his favour if the notices of assessment show that his income has gone down because of the respondent’s failure to comply with his income disclosure obligations. If either of the notices of assessment shows that the respondent’s income has increased, the applicant shall be entitled to seek an appropriate retroactive adjustment.
[13] From this date forward, any documents required to be served by the respondent on the applicant, including all tax and income information, must be sent to the applicant by registered mail addressed to 102 Spruce Street, Petawawa, Ontario, K8H 3H8 or to such other address as the applicant may designate in writing. The respondent shall be required to show proof of mailing upon request. In the absence of evidence of proof of mailing issued by Canada Post, the document will be deemed not to have been served unless the court orders otherwise.
[14] The respondent shall not be permitted to seek any relief, or to seek leave to pursue any relief, so long as he is in default of his financial disclosure obligations.
[15] The respondent shall pay the costs of this motion to the applicant which are fixed in the sum of $2,500, payable forthwith. No HST shall be payable in addition to this sum. These costs are related to the respondent’s child support obligations and are enforceable as support by the Director, Family Responsibility Office.
[16] On the first occasion the respondent was found in contempt, he was required to pay costs of $2,500 enforceable as support by the Director, Family Responsibility Office. As the previous paragraph indicates, the costs of this motion shall be enforceable as support as well. The respondent should be aware that while he may be paying the maximum amount collectible by F.R.O. at this time, eventually as the children get older and are no longer entitled to child support, these costs orders will continue in full force and effect and will be enforceable as child support even after the children are no longer dependents.
[17] The comments respecting costs in my endorsement of August 11, 2017 at paragraph 26 continue to apply here as well.
James, J.
DATE: July 17, 2018
COURT FILE NO.: 07-937
DATE: July 17, 2018
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Foran and Couette
BETWEEN: Gwendolen Foran, Applicant and Colin Couette, Respondent
BEFORE: Honourable Mr Justice Martin James
COUNSEL: Self-Represented Applicant
Self-Represented Respondent
ENDORSEMENT
James, J.
DATE: July 17, 2018