Court File and Parties
Court File No.: FS 18-0107 Date: 2018/10/19 Ontario Superior Court of Justice
Between: Linda Diane Banfield (Wight), Applicant (Responding Party on the Motion to Change)
And: Richard Harry Wight, Heather Louise Halyk and MCSS Legal Services Branch, Respondents
Counsel: No one appearing for the Applicant Linda Diane Banfield (Wight) Brittany Chaput, appearing as duty counsel for the Respondent Richard Harry Wight (Moving Party on the Motion to Change) No one appearing for the Respondent Heather Louise Halyk (Responding Party on the Motion to Change) Stephania Sikora, for the Respondent MCSS Legal Services Branch (Moving Party on the Motion for Directions)
Heard: October 12, 2018
Before: Ellies J.
Reasons for Decision
OVERVIEW
[1] Richard Wight has moved to terminate a child support order and to expunge arrears owing under that order. The support recipient, Linda Diane Wight (now Banfield), assigned the support order to the Ministry of Community and Social Services (“MCSS”), who opposes Mr. Wight’s motion. MCSS brings the motion at tab 6 of the continuing record for directions and for additional financial disclosure from Mr. Wight pursuant to rr. 1(7) and 13, respectively, of the Family Law Rules, O. Reg. 114/99.
[2] The list of financial disclosure sought by MCSS includes:
(a) copies of all income tax returns and notices of assessment and reassessment from Canada Revenue Agency (“CRA”) for each year that Mr. Wight seeks to change, vary or suspend the support order;
(b) verification regarding outstanding debts owed to CRA:
(c) a copy of an order from Owen Sound pertaining to child support Mr. Wight was ordered to pay to another woman with whom he had children;
(d) "any financial documentation as it relates to" the Owen Sound order; and
(e) a release allowing MCSS to review records from the Family Responsibility Office (“FRO”) relating to arrears under the Owen Sound order.
[3] Mr. Wight has agreed to produce a copy of the Owen Sound order. He opposes the remaining requests made by the MCSS.
[4] In my view, the disclosure sought is out of all proportion to the issues in this case. The question is what, if anything, can I do about it under the Family Law Rules?
BACKGROUND
[5] The support order at issue in this case was made 40 years ago, on September 19, 1978. It was contained in a Decree Nisi issued on that date by Pringle J. Pursuant to the decree, Mr. Wight was required to pay child support to Linda Diane Wight for two children, one of whom was born on April 19, 1972 and the other of whom was born on August 5, 1975. Mr. Wight was to pay the sum of $10 per week per child, amounting to $80 per month.
[6] On December 8, 1988 the support recipient assigned the support payable under the order to MCSS for the period from September 1, 1978 to August 1, 1988. On May 31, 1989 she again assigned the support payable under the order to MCSS for a period beginning on June 1, 1989. That assignment was terminated effective October 31, 1989.
[7] According to FRO’s records, the total amount presently owing under the support order is $4,851.16. According to MCSS, $3,951.84 of that amount is owed to it pursuant to the assignments referred to above.
[8] Mr. Wight has supplied income tax information for the years from 2004 to 2016, inclusive. Although he has only produced notices of assessment for two of those years, he has produced software-generated summaries for all of the other years. However, MCSS says that is not enough. It seeks income tax returns and notices of assessment or reassessment for every year since 1978, as well as the other information referred to above. The request to produce income tax information is based on r. 13(5.0.1) of the Family Law Rules, which requires a person moving to change a final order for support to provide income tax returns and notices of assessment or reassessment “for each year for which a party is seeking to change or cancel arrears”. MCSS wants the income information so that it can determine what Mr. Wight's ability to pay was during the years for which he has not provided tax returns and notices (the "missing years").
ANALYSIS
[9] In 2010, the Rules of Civil Procedure, R.R.O. 1990, O. Reg. 194 were amended to include the principle of proportionality. Rule 1.04(1.1) provides:
(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.
[10] In Kovachis v. Kovachis, 2013 ONCA 663, the Court of Appeal held that the principle of proportionality applies in family law litigation just as it does in other areas of civil litigation (para. 34). In Kochar v. Kochar, 2015 ONSC 6650, Aston J. held that the proportionality principle was enshrined in r. 2 of the Family Law Rules even before it was incorporated into the Rules of Civil Procedure (para. 4).
[11] The proportionality principle is expressed in the combined effect of two family rules. Rule 2(2) of the Family Law Rules provides:
(2) The primary objective of these rules is to enable the court to deal with cases justly.
[12] Rule 2(3) sets out a number of characteristics of a justly dealt with case, including:
(c) dealing with the case in ways that are appropriate to its importance and complexity;
[13] Together, these rules read quite similarly to r. 1.04(1.1) of the Rules of Civil Procedure. Unfortunately, however, the Family Law Rules contain no provision similar to r. 2.03 of the Rules of Civil Procedure, which expressly permits the court to dispense with compliance with the rules at any time “where and as necessary in the interest of justice”. Rule 1(7.2) of the Family Law Rules provides that, in order to promote the primary objective of the rules, the court may make any one or more of a number of procedural orders listed therein. The list, however, does not include permitting non-compliance. The question I must answer is whether the Family Law Rules permit a court to dispense with compliance in order to give effect to the proportionality principle. I believe that they do.
[14] Rule 2(4) of the Family Law Rules provides:
(4) The court is required to apply these rules to promote the primary objective, and the parties and their lawyers are required to help the court to promote the primary objective.
[15] Rule 2(4) contemplates, implicitly if not explicitly, that the family rules can be applied in a way that may not promote their primary objective. The rule requires a court to avoid that result, where possible. Rule 1(7.2) provides a list of ways in which that can be done, but it does not purport to be exhaustive.
[16] In my view, requiring Mr. Wight to provide income tax returns and notices of assessment or reassessment for every year from 1978 would be contrary to the primary objective of the rules in the unique circumstances of this case. It would be disproportionate to the importance of this case, having regard to the issues in the case and the amount at stake.
[17] Mr. Wight deposes that the support recipient in this case had an alcohol problem and that the children spent extensive periods of time in his custody, presumably while the support order was in place. He also deposes that one of the children came to live with him for a number of years after the support order was made. He deposes that he did not realize until recently that he could apply to vary the support order.
[18] Even if Mr. Wight’s evidence is ultimately disbelieved in the motion to change, the incontrovertible evidence leads to the conclusion that the arrears are unlikely to be enforced for most of the period in question. The youngest child for whom Mr. Wight was ordered to pay support turned 18 in August 1993 -- 25 years ago. By that date, arrears of $19,917 had accumulated under the order. Mr. Wight could have applied then to terminate child support under the order. Even if the arrears were not reduced at that time to take into account the fact that his children had been living with him for periods of time between 1978 and 1993, it is likely that the arrears would have been capped at the amount owing at the time. However, according to FRO’s records, it collected even more than that amount after 1993. FRO’s records show that, in 1995, the amount owing under the support order was reduced from approximately $28,000 to approximately $5,500 as a result of a number of large, as yet unexplained, credits. In essence, FRO collected all of the arrears accumulated between 1978 and early 1994, according to the statement of arrears.
[19] In these circumstances, I believe that it would be unjust to compel Mr. Wight to supply all of the income tax information required by r. 13(5.0.1). I conclude that enforcement of that rule in this case would not be just in light of the facts I have set out above. Therefore, in order to fulfill the primary objective, compliance with r. 13(5.0.1) should not be enforced. If MCSS still wishes to obtain tax returns and notices of assessment or reassessment for the missing years, it can seek to obtain them directly from CRA with Mr. Wight's consent.
[20] I am of a similar view with respect to several of the other requests for disclosure. In my view, it would be disproportionate to the importance of the case to require Mr. Wight, firstly, to determine what is meant by "financial documentation" with respect to the Owen Sound order and then, assuming it means all of the financial information that was filed with the court at the time the order was made, to pursue that documentation. The court file is available to any member of the public, including a representative of MCSS.
[21] With respect to the information MCSS seeks from CRA regarding Mr. Wight's indebtedness and from FRO with respect to arrears owing under the Owen Sound order, I see no reason why Mr. Wight cannot simply provide MCSS with a signed consent form, authorizing MCSS to obtain the information it seeks directly from the third parties. I do note with respect to the CRA debt that the notices of assessment that Mr. Wight has filed for the tax years 2012 and 2014 show a debt to CRA of $32,751.44 and $35,318.05, respectively. This would seem to substantiate the debt shown to CRA in Mr. Wight's recent financial statement in the amount of $40,886.31. However, if MCSS still wishes to obtain the CRA information, it is free to do so.
CONCLUSION
[22] MCSS's motion is allowed to the extent that Mr. Wight is hereby ordered to sign any proper consent provided to him by MCSS to authorize MCSS to obtain the information and documentation it seeks directly from CRA and FRO. Alternatively, MCSS may prepare a request by Mr. Wight directed to the third parties, asking that they supply the information and documentation directly to him or his counsel, on the understanding that MCSS will pay all the fees and expenses associated with making the request and that it will obtain a copy of any information or documentation provided in response from Mr. Wight or his counsel, again at its own expense. Mr. Wight shall also be ordered to provide a copy of the Owen Sound order, as he has agreed to do.
[23] The balance of MCSS's motion is dismissed.
[24] The issue of costs for this motion shall be dealt with at the time the motion to change is argued, which the parties are directed to do before me. That motion shall be addressed again at the motions court to be held on October 26, 2018 in order to determine if the parties are in a position to set a date for a settlement conference.