COURT FILE NO.: FS-00-41034-01 DATE: 2018 10 30

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Scott Henderson, Applicant AND: Suzanne Henderson, Respondent

BEFORE: Trimble J.

COUNSEL: Kristen Chapman, for the Applicant kchapman@epsteincole.com Kristy Maurina, for the Respondent kmaurina@mpllp.com Danette Edwards, Counsel to FRO danette@edwardsfamilylaw.ca

HEARD: October 25, 2018

Endorsement

[1] Mr. Henderson, brings this motion (V. 10 of the Cont’g Rec., T9) claiming several kinds of relief including:

1. Pending the adjudication of the Applicant’s motion to vary the Order of Van Rensburg, J., dated January 15, 2009, a temporary Order setting the amount of arrears to be collected and enforced to $3907.10 USD per month, to be applied towards outstanding arrears.

2. An Order that the relief set out in paragraph 1 above is without prejudice to the Respondent’s claim that the amount of arrears shall be enforced in full and the Applicant’s claim that the amount of arrears shall be retroactively reduced.

3. An Order that the relief set out in paragraph 1 does not affect the amount of the Applicant’s ongoing support obligations.

4. An Order that the relief set out in paragraph 3 above is without prejudice to the Respondent’s and Applicant’s claims with respect to the amount of ongoing and retroactive support.

5. If necessary an Order staying any further enforcement proceedings, pending the adjudication of the Applicant’s motion to vary the Order of Van Rensburg, J.

6. If necessary an Order granting leave to the Applicant to file complete Motion to Change materials.

Paragraph 5, above, is a claim for alternative relief.

[2] In oral argument, Mr. Henderson limited the relief he claims to obtaining an order from the Ontario Court fixing the payment of arrears at $3,907.10.

Family Facts

[3] Mr. and Mrs. Henderson married on September 8, 1986, separated on July 18, 1999 and divorced on March 20, 2003. They have two children: Jennifer (25) and Melissa (22).

Support Order

[4] On January 15, 2009, Van Rensburg, J. issued a final order granting Mrs. Henderson sole custody of two children, and ordering Mr. Henderson to pay $4915.00 a month for child support, $1387.00 a month for section 7 Extraordinary Expenses, and $4372.00 in spousal support. She fixed child support arrears inclusive of interest as of December 31, 2008, at $360,699.00. The order was to be enforced by FRO. A Support Deduction Order was issued.

[5] Van Rensburg, J.’s final Order was issued without Mr. Henderson’s participation. His pleading was struck in 2003 because of his persistent failure to make disclosure and abide by other Court orders.

Enforcement of Support Order

[6] Mr. Henderson made some payments under the order. These were sporadic. He admits that he never fully complied with the order, voluntarily.

[7] Since Van Rensburg’s Final Order, Mrs. and Mr. Henderson have engaged in significant litigation in Hong Kong, California, Arizona, and Ontario. For the most part, the litigation has been driven by Mrs. Henderson, seeking to enforce support granted in Van Rensburg, J.’s Order. Multi-jurisdiction litigation was necessary because Mr. Henderson is a pilot for Cathay Pacific Airlines (whose head office is in Hong Kong), and he lived in California and then Arizona.

[8] Mr. Henderson has brought most of the litigation in Ontario to revisit support. Largely, he has been unsuccessful.

[9] Once Mr. Henderson’s state of residence was determined, FRO called on the State of Arizona to enforce the support order. Beginning in March, 2016, Arizona began enforcing Van Rensburg, J.’s Order pursuant to the Uniform Interstate Family Support Act by deducting from Mr. Henderson’s pay, the child and spousal amounts stipulated by Van Rensburg, J. In April, 2017, Arizona began deducting a further $3,907.10, on account of arrears. As indicated above, Van Rensburg, J. fixed child-support arrears at $360,699 as of the date of the judgment. They continued to increase, reaching over $1 million at their highest. The most recent statement of arrears from FRO, current to 31 August 2018, fixes arrears of $622,051.23.

Mr. Henderson’s Position

[10] Mr. Henderson seeks this relief for a number of reasons, including:

1. Mrs. Henderson has commenced proceedings in Arizona to increase the amount deducted from his income on account of child and spousal support arrears from $3907.00 USD to $11,000 USD. This proceeding will resume on November 9, 2018.

2. Arizona merely enforces the order of the Ontario Court. Arizona will enforce whatever monthly arrears payment this Court fixes.

3. Mr. Henderson has now met all terms required of him to permit him to bring this motion.

4. Mr. Henderson has brought, or will bring a motion to amend or vary Van Rensburg, J.’s Order in order to reduce spousal and child support in light of material changes in circumstances which include that Mrs. Henderson’s income has increased substantially since the original order was made, and the children have each completed their first post-secondary degree.

5. The matter is urgent. Mr. Henderson currently pays, $13,681 USD per month pursuant to the order. He is only able to meet his personal expenses and the support payments by deferring his income tax payments to the US government.

[11] Mr. Henderson also argues that Mrs. Henderson’s motion in Arizona to increase the deduction for arrears to $11,000 USD is driven by the fact that he is 60, and in five years must retire. She wants to ensure that all of the arrears are retired by the time he retires.

Mrs. Henderson’s Position

[12] Mrs. Henderson says that the motion should be dismissed for a number of reasons:

1. The Motion is premature as there is no valid, live Application to vary Van Rensburg, J.’s order.

2. The amount deducted on account of arrears is a question for the Arizona authority to determine. That hearing has begun, and is set to continue on November 9, 2018.

3. Mr. Henderson’s motion, in essence, is request to stay enforcement proceedings beyond current levels. In order to obtain a stay, the moving party show that he has a) a prima facie case for variation, b) come before the Court with clean hands, and c) made out a clear case of hardship or that the continuation of the order would be “incongruous and absurd”. None these are present in this case.

4. Mr. Henderson’s contempt for the Courts process, findings of contempt made against him, and his persistent refusal to honor the Van Rensburg order except under compulsion, means that this Court should refuse Mr. Henderson a right audience.

Result

[13] For the reasons that follow, Mr. Henderson’s motion is dismissed.

Analysis

1) The Motion is Improper

[14] Mr. Henderson says that the Ontario Court has the power and jurisdiction to fix the monthly amount paid toward arrears, even in the absence of an underlying Motion to Change. In this respect, he relies on Williams v. Williams, 2011 ONSC 3368, para. 95; Prevost v. Prevost, 2017 ONSC 5825, para. 177; and Chiaramonte v. Chiaramonte, 2016 ONSC 7328, para. 89 and 90.

[15] In all three cases, the Court fixed a monthly sum for the payment of arrears at the same time as it fixed support obligations going forward, in an ongoing proceeding where the final obligations were determined. Williams was a trial of a divorce Application, and Prevost was the decision following a trial in a Motion to Change. In Chiaramonte, the Court considered the Applicant’s contempt motion against the Respondent and the Respondent’s motion for a Refraining Order, both within an Application dealing with child and spousal support and arrears, which had not yet been tried. The Court set a payment schedule for arrears as a condition of the Refraining Order.

[16] With the Hendersons, Van Rensburg, J.’s Order of January 15, 2009 is a Final Order which fixed the amounts for ongoing spousal and child support that Mr. Henderson had to pay, and fixed the total arrears for child support. Her Honor did not fix the monthly payment to be made to retire the arrears.

[17] What Mr. Henderson seeks a by this motion is really an order to amend Van Rensburg, J.’s Final Order so that it fixes a specific periodic payment amount to retire the accumulated arrears. Mr. Henderson’s proper remedy is to bring a Motion to Change, not the motion he has brought.

2) The Motion Is Premature.

[18] Irrespective of my finding that Mr. Henderson’s motion is really to amend Van Rensburg, J.’s Final Order, Mr. Henderson’s motion is also premature.

[19] An interim motion to vary the amount of support payable under a Final Order must be brought within a live Application or proceeding. Only within such an Application can the Court discharge, vary, or suspend the term of the Final Order and relieve the Applicant from payment of all or part of the order or arrears. The basis for granting the relief is a material change in circumstances. See Garneau v. Ontario (director, family responsibility office), 2010 ONSC 2804, at para.36; and Hayes v. Hayes, 2010 ONSC 3650, at para. 35.

[20] At the moment, there is no live motion to vary Van Rensburg, J.’s Final Order. In 2013, Mr. Henderson brought a Motion to Change. On May 7, 2013, Snowie, J., struck that Application and ordered that Mr. Henderson could not bring any further motions or take any further steps until he complied with Van Rensburg, J.’s Final Order. Hence, there is no Motion to Change currently before the Court.

[21] Paragraph 11 of Van Rensburg, J.’s Final Order provided “This Order, as it relates to child and spousal support, is subject to possible variation upon the Applicant purging all existing contempts, providing all answers to his undertakings, providing complete income disclosure and reopening his pleadings. This does not prejudice the Respondent’s right to seek security for costs should the Applicant seek such variation.”

[22] By notice of motion dated September 30, 2013, Mr. Henderson brought a motion for an order for directions with respect to purging is contempt, providing ongoing outstanding disclosure, answering of standard outstanding undertakings, and with respect to “an order reopening pleadings and/or leave to allow the Applicant to bring a motion to vary the order of Van Rensburg, J. Dated January 15, 2009.” That motion was stayed three times, each time with terms and conditions that Mr. Henderson had to meet. There is an issue as to whether those terms have all been met. However, Mrs. Henderson consented to Mr. Henderson moving ahead with his motion to vary Van Rensburg, J.’s Final Order.

[23] The September 30th, 2013 motion for directions is the only motion currently before the Court. It is not a motion for an order that the proceedings before Van Rensburg, J., be reopened or that Mr. Henderson could bring a Motion to Change. It is not a motion to change or amend Van Rensburg, J.’s Final Order. It is merely a motion for directions.

[24] Mr. Henderson has promised to bring a Motion to Change. The parties are discussing a timetable for such a motion including the bringing of it and all steps necessary to be completed for the trial of that Motion. At the moment, however, there is no live motion, Application, or proceeding within which the motion to fix the monthly payment on account of arrears can be brought.

[25] Further, Van Rensburg, J.’s Final Order has been assigned to FRO and is the subject of a Support Deduction Order. Since Mr. Henderson is not a resident of Ontario and earns no income in Canada, FRO has requested the assistance of the State of Arizona to enforce. Arizona is now enforcing the Final Order under the Uniform Interstate Family Support Act. Since FRO’s ability to enforce, and the amounts it can enforce flow from the Support Deduction Order, so too flows the Arizona authority’s authority to enforce.

[26] Any power to change a Support Deduction Order is found in section 27 of the Family Responsibility and Support Arrears Enforcement Act, 1996. Section 27(1)(c) says “A payor, on motion in the Court that made or is deemed to have made the support deduction order,…may seek relief regarding the amount that is being deducted by an income source under a support deduction order for arrears under a support order.”

[27] Absent a Motion to Change, Mr. Henderson’s only recourse is to seek relief under a. 27(1)(c). It is of no assistance to him. S. 27(1)(c) permits a change only in the amount deducted monthly by FRO towards a lump sum in arrears. In this case, FRO is not deducting anything. It is the authority in Arizona that is making the deductions under Arizona domestic law.

Arizona Has Jurisdiction

[28] Mr. Henderson is not without recourse.

[29] Under Arizona’s Uniform Interstate Family Support Act, section 25 – 1304 – C, the Arizona authority “…shall apply the procedures and remedies of this state to enforce current support and collect arrears and interest due on a support order of another state or foreign country registered in the state.” (emphasis mine). While I have no evidence of the law of Arizona (foreign law being a fact to be proved in Ontario Court), it appears from the decisions emanating from Judge Seymour and the Arizona authority that the Arizona authority will set the monthly amount to be deducted from Mr. Henderson’s pay on account of arrears after considering a wide range of factors, including Mr. Henderson’s ability to pay. The parties advise that the hearing with respect to increasing the deduction for arrears either has commenced already and will continue on November 9, 2018, or is to be held on November 9, 2018.

[30] My findings, above, are dispositive of the motion. I need not consider other arguments raised.

Costs

[31] I will address the question of costs in writing. Each party will submit three double-spaced typed pages (excluding Bills of Costs or cases) addressing the issue of who pays costs to whom and in what amount. Mrs. Henderson will serve and file her submissions by 4:00 p.m. on 16 November 2018 and Mr. Henderson will serve and file his by 4:00 p.m. on 30 November 2018.

Trimble J. Date: October 30, 2018 cc: Judge Seymour, Arizona