COURT FILE NO.: FS-17-88633-00 DATE: 2018 11 28 CORRECTED: 2019 01 08 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: JASON FLOWERDAY, Applicant AND: ANGELA FLOWERDAY, Respondent
BEFORE: TRIMBLE, J.
COUNSEL: Jason Flowerday, self-represented Applicant Angela Flowerday, self-represented Respondent
HEARD: August 1, 2018, with supplemental written submissions received August 23, 2018 and September 13, 2018.
Endorsement
Correction Notice
January 8, 2019: The following paragraphs are in addition to the original Endorsement issued on November 28, 2018.
On 3 December, 2018 at 11:45 a.m., Ms. Flowerday emailed the Court to address an error that Ms. Flowerday perceived in paragraph 35 of my 28 November 2018 Reasons, which resulted in errors in paragraphs 37 and 69(1) of my Reasons. By email of 4 December at 4:56 p.m., copy to Mr. Flowerday, Ms. Flowerday was cautioned about direct communication with the Court unless it was on consent or invited by the Court.
I have heard nothing from the parties in the last month that Mr. Flowerday agrees that I should entertain Ms. Flowerday's 3 December request to correct an error in my 28 November Reasons. Justice between the parties, however, requires me to do so, irrespective of Mr. Flowerday's lack of consent.
At the bottom of a chart immediately following paragraph 35 of my 28 November 18 Reasons, I said that Ms. Flowerday owes Mr. Flowerday $181,245.67 for Family Bridges/Parnell accounts. That total is incorrect. That total should read $117,892.
Based on this corrected total, the reference to $81,745.67 in each of paragraphs 37 and 69(1) of my 28 November 2018 reasons is also incorrect. Each of those paragraphs should refer to the sum of $18,392.
My 28 November 2018 Reasons are amended accordingly, as well as any order taken out in respect of it.
The Motion
[1] By notice of motion dated 26 July 2018, returnable 1 August 2018 (Continuing Record, Vol. 5A, Tab 1) Mr. Flowerday, sought a) an order that the Family Responsibility Office could use to aid him with enforcement of child support, section 7, and other payments he says the Respondent, Mrs. Flowerday, owes him, b) an order finding Mrs. Flowerday in contempt for not paying child support and section 7 expenses, and c) an order that Mrs. Flowerday disgorge copies of all family and children photos, photo albums, digital images, and video files from the family computer and hard drives, regardless of any damage.
[2] The parties appeared before me on 1 August 2018 having filed nothing. I set a timetable for materials to be filed. The parties agreed that I could hear argument on 1 August, and then read the material to be filed and decide the matter.
[3] On 10 August, by written endorsement, I required further information. Mr. Flowerday filed his further affidavit on 23 August 2018, and Mrs. Flowerday provided additional information on 13 September 2018, not in Affidavit form. It was largely a repeat of material she had filed earlier.
[4] In short, Mr. Flowerday says that FRO’s records indicate that he has made no spousal support payments since my initial Judgment in this matter, released on 5 February 2016 (amended on 3 March 2016), and is in significant arrears. He says that, in fact, Mrs. Flowerday owes him a great deal of money. Mr. Flowerday requested an order which calculated all outstanding amounts Mrs. Flowerday owes and which survived her bankruptcy so that FRO can enforce arrears against Mrs. Flowerday, and cease enforcement against him.
[5] In order to address the motion, I must determine what is owing and what has been paid on account of spousal support, child support, section 7 expenses, and Family Bridges/Dr. Parnell invoices. I also address how set-offs work, and make a change to section 7 obligations for Mrs. Flowerday. Otherwise, ongoing obligations remain unaffected by this Endorsement.
A Brief History of Orders
[6] I released my trial Judgment on 5 February 2016. In it, I ordered that Mrs. Flowerday pay child support to Mr. Flowerday at the rate of $764.00 per month from the date of my reasons, onward, based on her imputed income of $40,000, and his actual income of $300,000.00. Based on those incomes, I ordered Mrs. Flowerday to pay Mr. Flowerday 13% of all of the children’s section 7 expenses. I ordered that Mr. Flowerday pay Mrs. Flowerday $3,538.00 a month in spousal support.
[7] In my costs order of 18 October 2016, among other things, I ordered that Mrs. Flowerday pay Mr. Flowerday $135,000.00 for her share of the section 30 assessments conducted. I ordered that the family would participate in the Family Bridges' program. To the extent that Family Bridges provided services solely to either Mr. Flowerday or Mrs. Flowerday, individually, that person must pay the related fees. With respect to other Family Bridges' fees, I ordered that Mr. Flowerday pay them and recover 75% from Mrs. Flowerday. I ordered Mrs. Flowerday to reimburse Mr. Flowerday $67,442.66 for her share of Family Bridges' invoices up to the end of April, 2016. I permitted Mr. Flowerday to set off $2,000.00 per month from spousal support that he owes Mrs. Flowerday, against what she owes him for costs, disbursements and Family Bridges/Dr. Parnell expenses.
[8] On 29 November 2016, I released my decision with respect to the costs of a conflict of interest motion Mrs. Flowerday brought, which was heard on 24 June 2016 (the reasons with respect to which were released on 29 June). In my Cost Endorsement, I awarded costs to Mr. Flowerday. I also ordered that Mrs. Flowerday pay Mr. Flowerday the sum of $16,679.60, representing her share of Family Bridges' invoice 31 dated the 30 April, 2016 in the amount of $9,886.09, and Family Bridges' invoice 58 dated 30 June, 2016, in the amount of $8,441.20.
[9] On 13 December 2016, Mrs. Flowerday assigned herself into bankruptcy. At the December 14, 2016 Custody and Access Review hearing I raised with the parties the effect of Mrs. Flowerday’s bankruptcy and asked for further submissions. Further submissions were provided.
[10] In paragraphs 61 to 65 of my Custody and Access Review Endorsement of 13 March, 2017 I addressed the effect of Mrs. Flowerday’s bankruptcy on existing costs and support orders. I found that all Family Bridges' fees were in the nature of maintenance for the children and therefore fell within the exemptions under section 178 (1) (c) and (h) of the Bankruptcy and Insolvency Act. Family Bridges' fees incurred for other than specific counselling to Mr. or Mrs. Flowerday, individually, were incurred for the children’s well-being, to help them restore, support, and maintain healthy relationships with both parents. In light of that finding, I held that my 25/75% allocation of Family Bridges' invoices in Mr. Flowerday’s favour would continue. I held that Mr. Flowerday could set off $1,500.00 per month from the spousal support he owed Mrs. Flowerday in respect of she owed him that survived the bankruptcy.
[11] By Endorsement of 21 June 2017, I addressed questions the litigants posed to "clarify" certain issues they and FRO had arising out of my 13 March 2017 Endorsement. In paragraphs 21 to 23, I set out basic rules with respect to approaching Family Bridges' fees:
[21] I offer the following clarification to assist in dealing with Family Bridges fees.
Family Bridges fees incurred since the trial decision in this matter are presumed to be incurred for the benefit of the children, for their emotional maintenance, and to reverse the effects of Y’s alienating behaviour. Therefore they are to be shared between X and Y on a 25/75% basis, respectively.
Family Bridges’ involvement in this matter arose from a Court ordered section 30 assessment. A section 30 assessor is not a typical litigation expert, retained and paid by one party to advance that party’s interest. It is an expert ordered by the court to assist the court to determine the best interests of the children. Family Bridges, as Ms. Vanbetlehem said, is a non-adversarial entity, whose mandate is to assist the family in re-establish broken relationships. The very purpose of Family Bridges’ involvement is the polar opposite of a litigation expert – it is to benefit the family, as a unit.
The presumption in subparagraph 1, above, is displaced only where and to the extent that the Family Bridges fee account clearly states a) an amount of time and b) the quantity of fees and disbursements that are incurred c) solely for rendering services to a specific parent, that d) were not related to the benefit of the children.
I clarify these rules further. If any Family Bridges fees were incurred for services rendered to Y regarding her alienating behaviours, and if Y paid any of those fees, to the extent that Y paid those fees, they are in the nature of child support and are, in effect, s. 7 Divorce Act extraordinary expenses and are exempt from the ambit of s. 178 of the Bankruptcy and Insolvency Act.
Are the Family Bridges fees of $16,697.60, awarded as part of the Costs Order November 29, 2016 in the nature of Support of s. 7 Expenses?
[22] Subject to the general rules guiding responsibility for Family Bridges’ accounts, as above, I cannot answer this specific question for two reasons. First, it is not a matter of clarification of any part of my March 13, 2017 endorsement. Second, there is no evidence, properly before me, to indicate what services the invoice covers. Even if they were properly proved, the invoices themselves are not sufficiently detailed to allow me to make any determination.
Who should pay the Family Bridges fees of $14,912.50 for preparing a Report and attending at the December 14, 2016 Review Hearing?
[23] I did not address this in my March 13, 2017 endorsement. This is a proper request for clarification, and is subject to the rules, above, dealing with Family Bridges fee accounts. They are not part of “costs” referred to in paragraph 85 of my March 13, 2017 endorsement.
[12] Following my 21 June 2017 Endorsement, the parties posed further questions which I addressed in my Endorsement of 2 August 2017. Mr. Flowerday wanted to know if the $135,000.00 I ordered Mrs. Flowerday to pay him as reimbursement toward the cost of the section 30 assessments, and the $67,442.66 in Family Bridges and fees survived Mrs. Flowerday’s bankruptcy. I ruled that the $135,000.00 in reimbursement toward the section 30 assessments fell within the bankruptcy as they were costs of the action, but the $67,422.66 I ordered Mrs. Flowerday pay Mr. Flowerday as her share of Family Bridges' services, was exempt.
[13] In addition, there was discussion before me as to whether the $2,000.00 set-off I gave Mr. Flowerday from spousal support on account of Mrs. Flowerday's obligations to him in my 18 October 2016 amended Cost Endorsement and the $1,500.00 set-off I allowed Mr. Flowerday in my 13 March 2017 Endorsement were cumulative, or whether the $1,500.00 set-off replaced the $2,000.00 set-off. In paragraph 30 of my 2 August 2017 Endorsement, I held that this question was a question for a Motion to Change.
[14] In my Endorsement of 14 December 2017, paragraph 102 to 103, I repeated that any issue with respect to the set-offs Mr. Flowerday was allowed to take from his spousal support obligation against any amounts Mrs. Flowerday owed him was to be addressed by a Motion to Change. I added, however, that I would hear any issue with respect to the set-offs as a “clarification” only if both parties agreed.
[15] To date, no party has brought a Motion to Change or have they agreed that I should address the set-off question. In her submissions on 1 August 2018, Mrs. Flowerday said that she agrees with Mr. Flowerday’s position regarding the set-off.
The Parties’ Positions
Mr. Flowerday's Position
[16] Mr. Flowerday says that Mrs. Flowerday owes him $43,550.98 for her 75% share of Family Bridges' invoices that he has paid. He seeks a further $4,446.56 representing her 75% share of invoices rendered by Dr. Yvonne Parnell, the psychologist working with Family Bridges. Mr. Flowerday provided a detailed affidavit explaining the Family Bridges' services for which he has paid.
[17] He seeks a further $5,556.13 for section 7 expenses for which Mrs. Flowerday has not made reimbursement.
[18] Mr. Flowerday said that he made all net spousal support payments in 2015 and 2016 but no longer has banking records for that period of time. In December 2016 he made a payment of $774.00, being the net amount of his spousal support obligation of $3,538.00, less Mrs. Flowerday’s child support obligation of $764, and his set off of $2,000.00 a month. Mr. Flowerday admits that he paid no spousal support from January 2017 through to and including July, 2018. In July 2018, he paid Mrs. Flowerday $764.00 as retroactive spousal support, representing his spousal support, less his cumulative set off of $3,500.00 x 20 months. Presumably, he made this payment to avoid criticism at the motion before me. Mrs. Flowerday declined this amount, asking Mr. Flowerday to apply it to her section 7 expense obligation.
[19] Mr. Flowerday says that Mrs. Flowerday has not paid child support payments since August 2017. Her arrears, he says, are $8,404. When one adds section 7 expense arrears from January 1, 2017 through to August 23, 2018, he says that Mrs. Flowerday owes him $13,960.13.
Mrs. Flowerday's Position
[20] Mrs. Flowerday agrees, generally, with Mr. Flowerday’s calculations as to her arrears. She raises, however, two arguments.
[21] First, Mrs. Flowerday says that Mr. Flowerday owes her $9,423.60 comprising 100% of services she said Family Bridges provided to him, and 25% of Family Bridges' services provided to the children, all of which were listed on the invoices Family Bridges provided to her, which she paid.
[22] Second, with respect to section 7 expenses, she says that Mr. Flowerday is claiming from her 17% of over $41,000.00 he spent in section 7 expenses. She says these are unreasonable and cause her undue hardship. Further, they were incurred without her input. For instance, she says that Mr. Flowerday claimed for expenses related to B’s baseball events in 2018 that had not been incurred. Further, she says that A’s enrollment in the Outward Bound program in British Columbia are excessive. She questions the need for psychological assessments of, and the development of an individual learning plan for A. She was not consulted nor was she advised of the need for these services. She requires consultation.
Analysis and Decision
[23] By this Endorsement, I hope to:
a. Settle all issues of outstanding payments between the parties as required by my Trial Judgment and subsequent Orders and Endorsements, and
b. Re-state ongoing child support, spousal support, and section 7 extraordinary expense obligations.
[24] In doing this, I hope to provide the parties and FRO with an order that is clearly enforceable.
Family Bridges/Dr. Parnell Accounts
The Parties' Positions
[25] Each of the parties has provided me with the Family Bridges and Dr. Parnell invoices that each has paid. These are:
Mrs. Flowerday:
| Provider | Inv. No. | Inv. Date | Amount |
|---|---|---|---|
| Fam. Bridges | 13 | 30/06/2016 | 2,261.25 |
| 66 | 31/07/2016 | 1,377.19 | |
| 73 | 12/09/2016 | 11,627.92 | |
| 99 | 31/10/2016 | 5,777.70 | |
| 113 | 30/11/2016 | 8,551.73 | |
| Dr. Parnell | |||
| Total | 29,595.09 |
Mr. Flowerday:
| Provider | Invoice No. | Invoice Date | Amount |
|---|---|---|---|
| Fam. Bridges | 31 | 30/04/2016 | 9,886.09 |
| 40 | 31/05/2016 | 3,268.93 | |
| 58 | 30/06/2016 | 8,441.20 | |
| 67 | 31/07/2016 | 938.55 | |
| 113 | 30/11/2016 | 8,551.73 | |
| 126 | 31/12/2016 | 12,635.66 | |
| 171 | 30/04/2017 | 7,316.87 | |
| 180 | 31/05/2017 | 1,008.80 | |
| 206 | 31/08/2017 | 1,505.84 | |
| 221 | 30/09/2017 | 4,520.00 | |
| Dr. Parnell | 7 & 8 | 20/04/2017 | 5,280.00 |
| Total | 63,353.67 or 45,026.32 (excluding invoices 31 and 58) |
[26] I assume, from the material provided to me, that each party has paid the Family Bridges/Parnell accounts that each has submitted.
Calculation of Arrears
[27] Each has claimed this, on his or her chart, Family Bridges' invoice number 113, dated 30 November 2016 in the sum of $8,551.73. I accept that Mr. Flowerday paid this account and have eliminated it from her list insofar as my consideration of arrears for Family Bridges/Parnell accounts is concerned.
[28] Mr. Flowerday lists among the Family Bridges accounts he has paid account number 31 dated April 30, 2016 in the amount of $9,886.09, and account number 58 dated 30 June 2016 in the amount of $8,441.20. Those accounts total $16,679.60. I have eliminated those accounts from my calculations as they formed part of my award of 29 November 2016.
[29] From Mrs. Flowerday’s evidence, she has paid at least $29,595.09 in Family Bridges/Parnell accounts. I say “at least” because it is difficult to determine what she paid Dr. Parnell. This does not make a difference to my analysis.
[30] Mrs. Flowerday has parsed the Family Bridges/Parnell invoices that she has paid and says that Mr. Flowerday owes her $9,423.60 comprising 100% of services she said Family Bridges provided exclusively to him, and 25% of Family Bridges' services provided to the children, all of which were listed on the invoices Family Bridges provided to her, which she paid.
[31] Mr. Flowerday, in his affidavit of 23 August 2018, says that in the Family Bridges/Parnell invoices for which he seeks reimbursement, there are entries for which Mrs. Flowerday should be fully or partially responsible. He says, however he has not parsed those out of the accounts he has paid.
[32] It is clear that Family Bridges and Dr. Parnell were provided with my various Judgments and Endorsements. It is clear that they determined what services they provided exclusively to or on behalf of Mrs. Flowerday, and billed her for those services directly. The balance of their fees were billed to Mr. Flowerday.
[33] The Family Bridges' accounts submitted to me do not clearly indicate any services on Mrs. Flowerday’s invoices that were rendered clearly to Mr. Flowerday. In keeping with paragraphs 21 to 23 of my 21 June 2017 Endorsement, absent clear information on the face of the invoice that allows me to discern between any services that Family Bridges/Parnell provided to Mr. Flowerday, or which require Mr. Flowerday to reimburse Mrs. Flowerday, I cannot gainsay Family Bridges/Parnell’s apportionment of their fees. I accept that Family Bridges/Parnell’s invoices sent to Mrs. Flowerday reflect fees for services rendered solely to, and related solely to Mrs. Flowerday. I do not make the adjustments that Mrs. Flowerday seeks.
[34] After removing accounts 31 and 58 from Mr. Flowerday’s list, I find that he has paid for $45,026.32 in Family Bridges/Parnell accounts. He is entitled to reimbursement of 75% of that or, $33,769.74 from Mrs. Flowerday.
[35] Based on the foregoing, Mrs. Flowerday owes Mr. Flowerday on account of Family Bridges/Parnell accounts, for the period of 5 February 2016 to 5 December 2018, the following:
| 16 October 2018 costs order | $ 67,442.66 |
|---|---|
| 29 November 2016 conflict cost order | $ 16,679.60 |
| All other invoices | $ 33,769.74 |
| Total | $117,892 |
[36] From this, Mrs. Flowerday is entitled to credit for the offsets that she acknowledges Mr. Flowerday was entitled to deduct under my judgment which he deducted from his spousal support obligation to her. These are:
| $2000 per month, 5 February 2016 to 13 March 2017 (13 months) | $26,000.00 |
|---|---|
| $3500 per month, 13 March 2017 to 5 December 2018 (21 months) | $73,500.00 |
| Total | $99,500.00 |
[37] Therefore, the total net amount Mrs. Flowerday owes to Mr. Flowerday for Family Bridges/Parnell accounts from trial to 5 December 2018, to date, is $18,392.
[38] In compliance with my earlier orders, Ms. Flowerday shall pay this amount to Mr. Flowerday at the rate of $3,500.00/mo. beginning 5 December, 2018.
Spousal Support Arrears
[39] In my Judgment of 5 February 2016, I ordered that Mr. Flowerday pay Mrs. Flowerday's spousal support at $3,538.00 a month commencing 5 February 2016, subject to the review provisions contained in the Judgment. Since trial, Mr. Flowerday has been content that I not recalculate spousal support since trial based on his claimed drop in income from $300,000.00 p.a. at trial to $225,000.00 now. I accept his position.
[40] From 5 February 2016 to 5 December 2018, a period of 34 months, Mr. Flowerday’s total spousal support obligation is $120,292.00.
[41] I find that Mr. Flowerday has met his spousal support obligations up to 5 August 2018. I find, however, that he owes Mrs. Flowerday $14,152.00 in spousal support arrears for the period between 5 August and 5 December 2018. [1] I have no information with respect to spousal support payments he made, if any, since 5 August 2018.
[42] Since lump sums for spousal support arrears are not tax deductible to the payor and not taxable in the hands of the recipient, the total arrears must be grossed down to reflect the after-tax value to the recipient and the Payor. As Schedule A, attached, shows, the after-tax value of the lump sum is $6,995.00 in Mr. Flowerday’s hands. The after-tax value of the lump sum in Mrs. Flowerday’s hands is $8,318.00. The difference occurs because of differing marginal tax rates. So that neither party receives a windfall or penalty in calculating the after-tax value of the lump sum, I fix the net spousal support arrears at the midpoint between the two figures, or $7,656.00.
Future Spousal Support
[43] In paragraph 216 and 304(n) my Judgment of 5 February 2016 and paragraph 30 of the ensuing Order, I ordered that Mr. Flowerday pay Mrs. Flowerday's spousal support at $3,538.00/mo. commencing 5 February 2016, subject to the review provisions contained in the Judgment. That order continues.
[44] As a practical matter, Mrs. Flowerday’s monthly payment to Mr. Flowerday for arrears on account of Family Bridges/Parnell invoices of $3,500.00 may be dealt with by a set-off against spousal support Mr. Flowerday owes Mrs. Flowerday. I leave that to FRO to determine.
[45] This represents a variation of paragraph 189 of my 18 October 2016 Costs Endorsement and ensuing Order, and paragraphs 80 to 82 of my 13 March 2017 Custody and Access Review Endorsement and ensuing Order.
Child Support Arrears
[46] In paragraph 211 and 304(l) of my Trial Judgment of 5 February 2016 (as amended) and paragraph 28 of the ensuing Order, I ordered that Mrs. Flowerday pay child support of $764.00 a month for the three children. From 5 February 2016 to December 5, 2018, a period of 34 months, Mrs. Flowerday’s total child support obligation $25,840.00.
[47] I find that from 5 February 2016 to 13 March 2013, Mr. Flowerday set off against his monthly spousal support payment the monthly child support payment that Mrs. Flowerday owed him. He paid spousal support on that basis. Therefore, Mrs. Flowerday is entitled to credit of $9,880.00 (13 mo. x $760.00).
[48] Mrs. Flowerday says that she has not been able to pay regular monthly child support because of her financial situation. She made payments on account of child support of $1,000.00 on 27 July 2018 and of $500.00 on 30 July. She says, however, that Mr. Flowerday did not accept her e-transfers. He admits, however, that she paid $1,500.00 in August, 2018 (see para. 5 of his 23 August 2018 Affidavit). There is some question as to whether she paid that $1,500.00 as child support or section 7 expenses. I have treated that payment as child support arrears. I am unaware of any child support payments made since then.
[49] Based on the foregoing, Mrs. Flowerday’s net child support arrears are $14,460 up to 5 December 2018.
Future Child Support
[50] My existing order that Mrs. Flowerday pay child support of $764.00 per month for three children based on imputed income of $40,000.00, continues.
Section 7 Expense Arrears
[51] In his affidavit of 26 July 2018, Mr. Flowerday says that since 21 April 2017 he has incurred section 7 extraordinary expenses totaling $41,844.27. He seeks 17% of this, or $5,439.75 from Mrs. Flowerday. In his affidavit of 23 August, however, he updates this to $5,556.13. In doing so, he deducted the $1,500 that Mrs. Flowerday paid in August, 2018 and the $307 he says that she paid at an unspecified date in 2017.
[52] Mrs. Flowerday’s main objection to the section 7 expenses claimed is that they are incurred without consultation with her. Mr. Flowerday has the obligation to advise Mrs. Flowerday of events in the children’s life twice a week as set out in paragraph 100 (17) of my 14 December 2017 Endorsement. Mrs. Flowerday is not entitled to be consulted in respect of section 7 expenses. I acknowledge, and understand Mrs. Flowerday’s concern, however, that Mr. Flowerday may be considering this as a blank cheque with respect to Mrs. Flowerday's contribution to section 7 expenses.
[53] Mr. Flowerday says that he is incurring the same sort of expenses that the family incurred when the family was still a single unit. B, for example, was always involved in baseball and soccer. A, for example, was always involved in competitive swimming. Recently, however, she decided to cease her swimming activities and become engaged in Outward Bound.
[54] I share Mrs. Flowerday’s concerns that the level of section 7 expenses are high, and in any event, not sustainable.
[55] I fix Mrs. Flowerday’s share of section 7 expenses arrears incurred since April 2017 to 23 August 2018, at $4,000.00. While this may seem arbitrary, in my view, this is a fair assessment given what appears to be the extent of the amount claimed compared to the family’s changed circumstances (see below). I have also accounted for the $760.00 spousal support payment that Mrs. Flowerday told Mr. Flowerday in July, 2018 should be applied to section 7 arrears.
Future Section 7 Expenses
[56] The cost of the Flowerday’s continued litigation to the parties, to the public purse, and to exceedingly scarce court resources in this matter is out of all proportion to the amounts that are claimed, especially given the changed economic circumstances of this family since my trial Judgment. Their resort to the Court to micro-manage their relationship must stop.
[57] What are the changed circumstances?
[58] I reviewed the economic impact of these proceedings on this family in paragraphs 13 to 24 of my 18 October 2016 Costs Endorsement. The changes have continued.
[59] The parties’ incomes have dropped. In my trial decision I imputed income to Mrs. Flowerday of $40,000, representing the reasonable amount that she could have been making by the time of trial had she made attempts immediately after separation to begin to return to the workforce on a full-time basis. By the time of trial, she was teaching part-time at Sheridan College, earning about $24,000 p.a.
[60] I conclude that Mrs. Flowerday is not working, now. She is earning little, if any income. She has not provided a recent financial statement. She refers, however, in her affidavit, to receiving E. I. instead of a wage. She made reference in her submissions to pursuing a PhD, something contemplated in my trial decision. Her email communication is from the “College of the North Atlantic Qatar” located in Dohar, Qatar.
[61] Mr. Flowerday’s income has also declined. He has not filed an up-to-date financial statement. At the time of trial, I found that he was earning $300,000 p.a. In subsequent affidavits, including those filed on this motion, Mr. Flowerday says that his income is now $225,000 p.a.
[62] While the parties’ incomes have dropped, their expenses, of necessity, must have increased. Both parties rent houses. Both parties have utility and other household related costs that, when combined, are probably double what they were when before they separated.
[63] Further, Mrs. Flowerday is an undischarged bankrupt. Setting aside the merits of her self-assignment into bankruptcy, the fact is that she remains bankrupt. Mr. Flowerday is the main creditor to the estate. Without ruling on the bankruptcy, with the exception of my Orders as to child and spousal support, and responsibility for Family Bridges/Parnell invoices, most of her other obligations under my Trial Judgment likely fall within the bankruptcy. Unless Mr. Flowerday obtains payments from Mrs. Flowerday’s Trustee in Bankruptcy, he continues to shoulder the financial responsibility of the breakdown of this family.
[64] Notwithstanding their new economic reality and my admonitions to approach their dispute in a more fiscally reasonable manner, the parties continue to squabble over small issues. The parties have stopped their personal financial bleed in legal costs by becoming self-represented. They continue to bear the psychological burden of their ongoing dispute. Their constant resort to the court to arbitrate very small amounts of money, however, is a drain the public purse and very scarce court resources. They call upon the Court at their leisure. This, too, must stop.
[65] In order to reduce the Flowerday’s use of court time to adjudicate relatively small issues in a court whose resources are stretched to the limit, from the date of the release of these reasons, onward, I fix Mrs. Flowerday’s ongoing section 7 obligation beginning at 5 December 2018, at $250 per month. This provides certainty of expense to Mrs. Flowerday, certainty of amount due to Mr. Flowerday, prevents the squabbles that arise over what is reasonable, and is fair to the children, all things considered.
[66] The foregoing paragraph constitutes a change to paragraphs 304(q and r) of my Trial Judgment of 5 February 2016 and 33 and 34 of the ensuing Order. I have made this order notwithstanding that no Motion to Change has been served, for the reasons stated.
Photographs
[67] In paragraph 33 of her 31 July 2018 Affidavit, Mrs. Flowerday says that she has provided, or will provide all photos and videos she has of the children. She said that she sustained a flood at her residence and that she has not been able to regain all of the saved images. She promised to provide by 31 August 2018, copies of photos and videos she has, and will try to capture others from any devices she has. Since Mr. Flowerday had no evidence to the contrary, the order will reflect Mrs. Flowerday’s promise.
Costs
[68] As Mrs. Flowerday is an undischarged bankrupt, I make no order as to costs for this proceeding.
Order
[69] Based on the foregoing, I make the following order, which I ask the Court Staff to make into a formal order for my signature:
This Court Orders order that all arrears owing to either party, up to and including 5 December 2018 under my Judgment of 5 February 2018 and any subsequent orders, are as set out below. In addition, the Court restates, for the convenience of the parties and FRO, all existing orders as to future spousal support, child support and s. 7 extraordinary expenses.
Family Bridges/Dr. Parnell Invoice Arrears
Mrs. Flowerday owes Mr. Flowerday $18,392 for arrears in Family Bridges and Dr. Parnell invoices.
Mrs. Flowerday will pay to Mr. Flowerday $3,500.00/mo. on account of these arrears.
This represents a variation of paragraph 189 of my 18 October 2016 Costs Endorsement and ensuing Order, and paragraphs 80 to 82 of my 13 March 2017 Custody and Access Review Endorsement and ensuing Endorsement.
Spousal Support Arrears
Mr. Flowerday has met his spousal support obligations up to 5 August 2018.
Mr. Flowerday owes Mrs. Flowerday spousal support of $14,152.00 for the period between 5 August and 5 December 2018. Adjusting for the fact that past spousal support is neither deductible to the payor nor taxable to the recipient, the net spousal support arrears Mr. Flowerday owes Mrs. Flowerday, enforceable by FRO, are $7,656.00.
Future Spousal Support
My order contained in paragraph 216 and 304(n) my Judgment of 5 February 2016 and paragraph 30 of the ensuing Order that Mr. Flowerday pay Mrs. Flowerday spousal support of $3,538.00/mo., subject to the review provisions contained in the Judgment, continues.
FRO may, if it wishes, set-off against Mr. Flowerday’s spousal support payment the $3,500.00 per month Mrs. Flowerday owes Mr. Flowerday under this Endorsement and ensuing Order. If FRO applies this set off, it is my intention that for tax purposes, he still pays the full $3,538/00/mo. amount.
Child Support Arrears
- Mrs. Flowerday owes to Mr. Flowerday child support arrears of $14,460.00.
Future Child Support
- My order contained in paragraph 211 and 304(l) of my Trial Judgment of 5 February 2016 and paragraph 28 of the ensuing Order that Mrs. Flowerday pay Mr. Flowerday child support of $764.00/mo. continues.
Section 7 Extraordinary Expense Arrears
- Mrs. Flowerday owes Mr. Flowerday section 7 extraordinary expense arrears of $4,000 for the period ending 23 August 2018.
Future Section 7 Extraordinary Expenses
From 24 August 2018 onward, Mrs. Flowerday’s ongoing section 7 obligation shall be $250 per month.
This represents a variation of paragraphs 217 and 304 (q and r) of my Trial Judgment of 5 February 2018 and paragraph 33 and 34 of the ensuing Order.
Impact of This Order on Other Orders
This Endorsement and any Order issuing from it are not intended to affect any claim that Mr. Flowerday may have against the Estate in Bankruptcy of Mrs. Flowerday or any defences she or her trustee may have to such claims.
This Endorsement and any Order issuing from it amend certain Judgments, Orders, and Endorsements made to date. To the extent that Judgments, Orders, and Endorsements are not affected by this Endorsement and any Order issuing from it, those other Judgments, Orders and Endorsements remain in effect.
Enforcement
- The Family Responsibility Office is to enforce the arrears as set out herein. A Support Deduction Order will issue.
Miscellaneous
- Mrs. Flowerday, by 31 August 2018, will produce to Mr. Flowerday, at his expense, copies of photos and videos she has of the children, and will try to capture others from any devices she has.
Trimble J.
Date: November 28, 2018 Corrected: January 8, 2019
COURT FILE NO.: FS-17-88633-00 DATE: 2018 11 28 CORRECTED: 2019 01 08 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: RE: JASON FLOWERDAY, Applicant AND: ANGELA FLOWERDAY, Respondent COUNSEL: Jason Flowerday, self-represented Applicant Angela Flowerday, self-represented Respondent ENDORSEMENT Correction Notice Trimble J.
Released: November 28, 2018 Corrected: January 8, 2019