COURT FILE NO.: 495/16
DATE: 2018 10 12
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jennifer Laura Schuurman, Applicant
and:
Melissa Dawn Schuurman, Respondent
BEFORE: Justice G. D. Lemon
COUNSEL: Michael J. Ruhl, Counsel for the Applicant
Melissa Dawn Schuurman, In Person
HEARD: October 1, 2018
ENDORSEMENT
The Issue
[1] The parties have been before me a number of times. In the past, they have agreed that, for simplicity, I may use their first names.
[2] Melissa has brought a motion for:
An Order that the Garnishment and writ of all monies taken by the applicant Jennifer Laura Schuurman from the Accounts of Melissa Dawn Schuurman on Monday September 24th, 2018 be released back to the respondent to allow for living and caring for the children, namely J.S. and B.S.
An order the applicant will provide a stop of garnishment and set up a payment schedule with the respondent to allow living expenses and day to day care be provided.
An order granting the change of Custody between the Respondent, Melissa Dawn Schuurman and the applicant Jennifer Laura Schuurman to Joint Custody of the children of the marriage, namely J.S. born April 14, 2011 and B.S. born June 28, 2015.
An order of Primary Resident of the children namely J.S. and B.S.
be with the respondent Melissa Dawn Schuurman, who maintains the school district within the current family order (para 24) The primary resident to be at: L[…] Guelph, ON or any future residential address of Melissa Dawn Schuurman within the City of Guelph.
[3] In response, Jennifer has brought a motion for:
An Order that all materials in respect of this matter may be served upon the Respondent Melissa Schuurman via email to: [email address] and that provision of a sent email by counsel for the Applicant, Jennifer Schuurman, or his staff shall constitute proof of such service;
An Order for directions from the Court regarding the manner in which any further Motions may be brought by the Respondent;
An order setting a date for the court to hear submissions and make directions regarding the implementation of the Final Order of Justice Lemon dated July 6, 2018.
Background
[4] On July 6, 2018, I granted Judgment in this matter. I granted custody of the two children to Jennifer. Thereafter, I ordered Melissa to pay costs fixed in the amount of $90,000.00.
[5] Shortly after that, Jennifer garnished Melissa’s bank accounts and the sum of $8,511.92 was seized. It is presently held by the Court.
Position of the Parties
[6] Melissa submits that, without these funds, she is destitute. She has been attempting to find work but has been unsuccessful to date. That has, to some extent, been caused by outstanding criminal charges which have only recently been resolved by a Peace Bond. She submits that without these funds, she has no money for the children who spend time with her.
[7] Melissa is upset that Jennifer made no proposals for payment and she wishes time to make such a proposal. She does, however, acknowledge that she has no proposal to make at the present time.
[8] Jennifer submits that the materials as filed are procedurally incorrect and that the matter should be dismissed. That position is not pressed. Jennifer also submits that Melissa needs to find employment and may be able to access her LIRA to alleviate some of her financial concerns.
[9] Jennifer points out that she too has the children and the loss of these funds will be significant to her household.
[10] Finally, Jennifer submits that some of the funds held in trust could be released to Melissa and a payment plan put into effect by me.
Analysis
[11] Although the Notice of Motion does not specifically state the authority, Melissa points to Rule 29 of the Family Law Rules as the authority for her motion. I am satisfied that I can deal with this motion as a Rule 29 garnishment hearing.
[12] Rule 29(19) sets out that I may order that garnished money held in court be returned to the garnishee or be sent to the payor, the co-owner of the debt, the sheriff, the clerk or the Director. Pursuant to Rule 2(1), “payor” is defined as a person required to pay money under an order or agreement. Accordingly, I can order the money be returned to Melissa.
[13] While Jennifer is reasonable in her position, I do not think that it is in the best interests of the children to share the funds between Melissa and Jennifer. I have already determined that costs are owed to Jennifer. In that determination, I have considered the effect of such an order on the children in both households. There is little likelihood that Melissa will pay any significant amount of those costs in the near future. Anything that is returned now will likely be lost.
[14] Costs orders are a court order like any other; they should be paid and should be enforced.
[15] Both parties submit that there should be a payment order. I have little evidence with respect to Melissa’s ability to pay into the future. What I have suggests that payments will be unlikely. It is entirely reasonable that the parties work out a payment plan for their own certainty but I do not accept that is the role of the court.
[16] For those reasons, Melissa’s request is dismissed. The garnished funds shall be released as required by the usual procedure.
Other Outstanding Issues
[17] As I explained to Melissa in court, her request for a change of custody and primary residence of the children cannot be dealt with at this time. For a variety of legal and procedural reasons, they are premature. I therefore did not request Jennifer to respond to that material. Those motions are dismissed.
[18] Melissa consented to Jennifer’s request that materials may be served upon Melissa via email to [email address].
[19] With respect to the request for directions, I do not wish the parties to spend time and money that they do have re-litigating the present issues. However as set out above, I did not request Jennifer’s response to Melissa’s various complaints. Jennifer may also have her own complaints. From what I can see, there seems to be issues relating to the children’s birth certificate, passports and section 7 expenses. Jennifer shall provide a brief responding affidavit confirming the issues that are outstanding between the parties. When I have that affidavit, I shall then consider what procedural steps may assist the children, the court and the parties.
Costs
[20] If Jennifer seeks costs of this motion, she may provide those submissions within 15 days. If she does, Melissa shall have 15 days thereafter to respond.
[21] All submissions shall be no more than three pages not including any Offers to Settle or Bills of Costs.
[22] Any submissions shall be forwarded to me at my office at the Superior Court Office, 74 Woolwich Street, Guelph, Ontario, N1H 3T9.
Justice G. D. Lemon
Date: October 12, 2018