COURT FILE NO.: 28418/06

DATE: 2018-09-24

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

L.B. Applicant

– and –

G.B. Respondent

COUNSEL: L.B. Self-Represented Veronica-Ann Mallari, for the Defendant

HEARD: September 19 & 20, 2018

REASONS FOR JUDGMENT

conlan j.

I. Introduction

[1] The Applicant father, L.B., and the Respondent mother, G.B., are separated spouses who are both in their mid-fifties. Their daughter, C.B., is 17 years old. Their son, P.B., is the eldest child but not at all involved in this proceeding.

[2] C.B. has some special needs. She has an Individual Education Plan at school. She has severe hearing loss to the point of being deaf if not for a hearing aid and an implant. She has anxiety and depression. She has balance problems and chronic headaches.

[3] On July 20, 2015, after an uncontested trial, in the absence of L.B. who filed nothing despite being served with the originating process materials filed by G.B., a Final Order was made by Fitzpatrick J. (“Order”).

[4] The Order provided, among other things, that L.B. pay child support in the amount of $450.00 per month on an imputed annual gross income of $50,000.00, commencing May 1, 2012. Further, he was to pay 50% of the child’s section 7 expenses.

[5] L.B. has brought a Motion to Change that Order. He wants it set aside under 25(19) of the Family Law Rules on the bases of fraud, mistake and/or lack of notice. Also, by implication through his trial testimony, he advances two grounds to establish a material change in circumstances – his deteriorating health and his worsening financial situation.

[6] What L.B. wants this Court to order has been a moving target. He asks that all support arrears be fixed at nil. On that point, he has been consistent since his Motion to Change was commenced. On other points, however, he has not been consistent.

[7] In his pleading, he asked that there be no ongoing child support at all. When he testified at trial, he changed that position to one that he continue to pay the $100.00 per month that he has been paying since he obtained a Refraining Order to keep his driver’s licence. In closing argument, he changed his position again, suggesting that he pay child support based on the Guidelines amount for a monthly gross income of $2100.00.

[8] In his pleading, L.B. asked that section 7s be shared in the future proportionately, according to the parties’ respective incomes. In his evidence, he altered that stance to a suggestion that section 7s be shared 60% for G.B. and 40% for him, somewhat arbitrarily. In closing submissions, he amended that position again, suggesting that the expenses be shared 50-50. In addition, and on this point L.B. has been consistent, no special or extraordinary expense of $200.00 or more would qualify but for both parents approving it in advance.

[9] For her part, G.B. asks that the Motion to Change be dismissed. She wants the Order to continue, subject to a modest increase to reflect the current Guidelines amount for child support ($461.00 rather than $450.00 per month). She asks that the arrears of base child support, $36,850.00 (a figure not disputed by L.B.), be paid off at the rate of $200.00 monthly. She requests that arrears for section 7s be paid off at $75.00 per month.

[10] On whether both parents must approve in advance any section 7 expense of $200.00 or more, G.B. agrees, except for medical items. For medical expenses, she wants L.B. to pay a stipulated amount every month.

[11] In her counsel’s opening and closing addresses, G.B. also asked for a few other things: (i) a direction from the Court that L.B. pay his share of the child’s post-secondary expenses, (ii) plus some direction from the Court as to when child support for C.B. will cease, (iii) plus a prohibition on L.B. bringing any further Motion to Change unless and until he has paid all outstanding costs awards against him.

[12] For the brief reasons that follow, after a short two-day trial during which only the parties testified, I agree largely with G.B. The Motion to Change is dismissed.

II. The Law

[13] Putting aside for the moment the Rule 25(19) issue, which has absolutely no merit, L.B. bears the burden of establishing on balance a material change in circumstances.

[14] A material change is one that, if known at the time the order under review was made, would likely have resulted in different terms. Further, a change to be material must have some degree of continuity to it. Gray v. Rizzi, 2016 ONCA 152, at paragraph 39.

III. L.B.’s Evidence

[15] A self-employed handyman, L.B. has not filed his income taxes for the years 2016 and 2017.

[16] This Court has no bank statements showing payments from L.B.’s customers. No copies of cheques written by customers. No invoices from L.B. to customers. No receipts from L.B. to customers. No proof of electronic money transfers from customers. No contracts between L.B. and customers. No CV. No descriptions of jobs done by L.B. In essence, nothing.

[17] Nothing except L.B.’s oral testimony that he thinks that he earns about $24,000.00 to $26,000.00 per year, gross.

[18] This Court has no evidence tendered by L.B. of any fraud or mistake that underlies the Order. He admitted in his testimony to having been personally served with the documents in 2015 and filing nothing because of alleged problems with legal aid.

[19] L.B.’s reliance on petty things like G.B., in 2015, referring to his motor vehicle as a “truck” instead of his old white van does not establish fraud.

[20] This Court does have some evidence from L.B. on his medical conditions. That evidence establishes that he has some pain, some stiffness, and he has experienced serious problems with the veins in his legs which necessitated surgery as recently as August 2018.

[21] He missed some time from work to attend medical appointments. Also, he did not work for about two weeks, or maybe slightly more than two weeks, because of the surgery.

[22] Currently, he works small jobs, a few days per week, a few hours per day. That is what he testified to.

[23] His family doctor’s letter dated April 20, 2018 states that “[L.B.] tells me that he can afford to lose income (emphasis added)”. The specialist’s report dated August 13, 2018 concludes that L.B.’s physical examination was completely “normal”.

IV. Decision

[24] In light of L.B.’s own evidence, or lack thereof, it could not possibly be determined that there has been a material change in circumstances since the Order was made. Nor is there any reason to set aside the Order under Rule 25(19).

[25] I do not suggest that L.B. is a wealthy man. Nor do I suggest that he does not care about his daughter. Nor do I ignore the medical issues. But one cannot come to Court, even a self-represented litigant, and ask the judge to create a material change out of a factual vacuum.

[26] This Court assisted L.B., probably too much frankly, throughout the trial. He was allowed to file Exhibits that had not been previously disclosed to the other side. He was permitted to repeat himself over and over again. He was allowed to ask questions about trial procedure. He was asked questions by the Court to elicit his own evidence on the contentious issues. He was assisted by the Court during his cross-examination of G.B. He was assisted by the Court during his opening and closing addresses. All of this while he has two sizeable outstanding costs awards against him.

[27] L.B.’s Motion to Change is dismissed. The Order shall continue to prevail, subject to the below.

[28] G.B., a physiotherapy assistant who earns a modest income, has paid the entirety of the couple’s son’s post-secondary education costs. She has also paid for many expenses associated with C.B. that she has not asked L.B. to contribute towards.

[29] All of C.B.’s section 7 expenses that G.B. is asking L.B. to help pay for were proven during the course of G.B.’s evidence at trial. They are all meticulously documented. They are all reasonable. They are all proper section 7s. They cover things like art classes, school activities, school uniforms, school lunches, summer camps, crutches and a special boot for the child’s broken leg, sewing classes, bus tickets for C.B. to get to and from school, sign language classes, eyeglasses, and dental work.

[30] There is nothing extravagant about any of those expenses. The total amount over more than three years is $7130.78. Rounding down, L.B.’s equal share as per the Order is $3565.00. He owes that amount of money to G.B.

[31] In cross-examination of his wife, L.B. made no headway on the section 7 expenses. He challenged a few of them, like eyeglasses (whether G.B. is claiming money for her own glasses as opposed to just the child’s) and summer camps (whether G.B. is asking for payment twice for the same thing), but those challenges were unsuccessful.

[32] On a final basis, therefore, this Court orders as follows:

(i) L.B.’s Motion to Change is dismissed;

(ii) on an imputed income to L.B. of $50,000.00 gross per annum, the Order made by Justice Fitzpatrick shall prevail, subject only to increasing the child support payable by L.B. from $450.00 to $461.00 per month, effective October 1, 2018, to account for the current Guidelines;

(iii) the arrears of base child support owing by L.B. are fixed at $36,850.00, and those arrears shall be paid by L.B. at the rate of $100.00 per month (G.B. requested $200.00 monthly, however, I think that is unreasonable given all of the circumstances);

(iv) the arrears of section 7s owing by L.B. are fixed at $3565.00, and those arrears shall be paid by L.B. at the rate of $39.00 per month (G.B. requested $75.00 monthly, but I think that amount is too high in all of the circumstances; the rate that I have selected brings the payor’s total monthly obligation to an even $600.00);

(v) all amounts, ongoing and arrears, shall be enforced by the Family Responsibility Office;

(vi) the parties shall share all future section 7 expenses evenly, 50-50, as per the Order under review; and

(vii) regarding section 7s, for any non-medical expense of $200.00 or more, the approval in advance of both parents is required (for clarity, medical expenses do not need to be approved by L.B. in advance, however, I decline to impose upon L.B. a minimum monthly contribution).

[33] The other relief sought by G.B., through her counsel in opening and closing addresses, is denied.

[34] L.B. gave no evidence and made no submissions in opposition to any of these extra items, but I have an obligation as the trial judge to ensure that justice is done for all litigants including those who act for themselves.

[35] There was nothing pleaded about a prohibition against L.B. bringing any future Motion to Change, and such serious relief is unwarranted here. Further, there was nothing pleaded about the child’s post-secondary expenses specifically, and those fall within section 7s in any event. Finally, there was nothing pleaded about a termination date for child support, and the law will determine when C.B. ceases to be eligible for support.

[36] On costs, G.B. asks for full or substantial indemnity. Full recovery would be $8200.00, plus an unknown amount for steps in the proceeding before Ms. Mallari became involved. L.B. suggests that he pay nothing for costs.

[37] This is not a case for full or substantial indemnity. G.B. made a very reasonable settlement offer in late June 2018, but she did not meet or exceed that offer, in its entirety, after trial.

[38] Partial indemnity is appropriate. This Court orders that L.B. pay to Legal Aid Ontario costs in the sum of $4500.00, all-inclusive.

Conlan J.

Released: September 24, 2018

COURT FILE NO.: 28418/06 DATE: 2018-09-24

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

L.B. Applicant

– and –

G.B. Respondent

REASONS FOR JUDGMENT

Conlan J.

Released: September 24, 2018