Court File and Parties

Court File No.: FD 202/16 Date: February 2, 2018 Superior Court of Justice – Ontario Family Court

Re: Michael Thomas Scott, Applicant And: Melanie Marie McGrail, Respondent

Before: McSorley J.

Counsel: Mr. H. Hassan, Counsel for the Applicant Mr. H. Bernard, Counsel for the Respondent

Heard: January 15, 2018

Endorsement

Introduction:

[1] The matter before the court involved a motion brought by the applicant for various heads of relief related to reopening the evidence of a trial conducted in July 2016. In his motion, the applicant sought an order for the following:

a) Leave to reopen the evidence at trial;

b) Staying the orders for support and costs awarded following the trial;

c) Staying issuance of and enforcement of the support and costs orders;

d) Extending the time for the applicant to make reply cost submissions;

e) Requiring the respondent to deliver to the applicant an up to date financial statement with current year to date paystub and 2016 Income Tax Return;

f) Delivery of a direction to the respondent’s employer for release of her employment file from any employers in the last 12 months;

g) Delivery of a direction to her landlord for release of all records, applications for lease and copies of all payments made by the Respondent for the last 12 months;

h) Reconsideration of the amount and duration of spousal support; and

i) Reconsideration of the final order to provide mandatory income disclosure on an annual basis

[2] At the time the motion was argued on January 15, 2018, the respondent had provided a sworn financial statement, year-end pay statement for 2017, her 2016 Income Tax return, employment information and information regarding her lease of an apartment. As a result, paragraphs 1 (e), (f), and (g), were not argued.

[3] With respect to paragraph 1 (d), there were no submissions made on this point. In addition, the respondent was the successful party on the trial. The parties were advised in the last paragraph of the trial judgment that if they could not settle costs, the respondent was to serve and file her costs submissions on or before March 6, 2017 and the applicant was to serve and file his response on costs on or before April 18, 2017. It was then the applicant who was entitled to file any reply to Mr. Scott’s submissions. The respondent has no entitlement to file reply submissions to reply submissions.

[4] As a result, submissions were made only with respect to subparagraphs 1 (a), (b), (c), (h), and (i).

Background:

[5] The parties resided together from July 2004; were married on June 25, 2011; and separated on October 18, 2015. The applicant commenced an application, in which he sought an order for a divorce, equalization of the net family properties of the parties, sale of the matrimonial home and costs. In her answer, the respondent sought an order for a divorce, equalization of the net family properties, exclusive possession of the matrimonial home and its contents, spousal support and costs.

[6] In May 2016, the parties settled all issues between them except the issue of spousal support. On July 13, 2016, an order was made that the issue of spousal support be adjourned to a focused hearing on July 22, 2016. The evidence in chief of each party was to be completed by way of affidavits (previously filed), with brief updates to be provided orally. Both parties were to be subject to cross examination by opposing counsel. Although it was anticipated that the focused hearing would need only four hours, the matter was heard over a two day period.

[7] The only issue before the court was whether the respondent Ms. McGrail was entitled to spousal support, including compensatory support, and if so in what amount and for how long. In determining those issues, the issue of imputation of income to the respondent was also raised.

[8] At the conclusion of the trial, the decision was reserved. The decision was released in early February 2017. In the judgment, the applicant, Michael Scott was ordered to pay spousal support to the respondent, Melanie McGrail, in the amount of $1,000 per month, commencing March 1, 2016 and payable on the first day of each month thereafter to and including February 28, 2022. Arrears that were created by this order for the period March 1 2016 to February 28, 2017 totaled $12,000. A payment schedule was included in the order, providing that the applicant pay an additional sum, on account of arrears in the amount of $200 per month commencing March 1, 2017. Finally the court ordered that the spousal support was reviewable after February 28, 2022 and/or subject to variation prior to that time in the event of a material change in circumstances.

[9] The reasons for judgment set out the incomes of the parties for the years 2013, 2014 and 2015. At the time of hearing, full income information for the year 2016 was not available. The court utilized the Spousal Support Advisory Guidelines (SSAG) to determine amount and duration of support. Two schedules were attached to the decision showing the parties’ incomes without RRSP income and with RRSP income. The court decided not to include the RRSP income for either party and based the support order on the amounts earned by the parties. The applicant’s 2015 income was $101,568.00 while the respondent’s 2015 income was $32,330.00.

[10] Using the SSAG calculation on the incomes above, the support ranged from $952 at the low end; $1,111 at the mid-range; and $1,269 at the high end and suggested support for a duration of 5.5 to 11 years. In the decision, it is clear that the court chose a figure closest to the low range of support and only for a period of six years; again a figure closest to the shortest period of time eligible under the SSAG’s.

Position of the Parties:

[11] The applicant sought to reopen the evidence in the trial based on four factors:

1. that the respondent had made an application to rent an apartment just prior to the hearing and did not provide that evidence to the court;

2. that she obtained a new position at TD bank and received an increase in her income as a result; that she had a higher income;

3. that regulations in the trucking industry would reduce the applicant’s income; and,

4. that the respondent was receiving money from unknown sources that should have been added to her income.

[12] The applicant asked the court to completely eliminate the spousal support award, or alternatively, to reduce it. He also asked that the court stay both the support and costs orders pending a rehearing, if he was successful on this motion, or pending appeal, if he was unsuccessful on this motion.

[13] The respondent’s position was that no evidence of the regulations regarding changes to the trucking industry had been provided by the applicant, and that the proposed changes were known to the applicant well before the trail and in fact were known to him in December 2015, prior to commencing his application. With respect to the application to lease an apartment, her application had not been approved at the time the trial, she did not move into an apartment until October 2016; and that she had provided evidence at the trial that she wanted and intended to obtain her own accommodations. She also testified that she expected the rent on such an apartment would be approximately $1,000 per month. With respect to her new position, she indicated that she was not offered a new position until December 2016 and that her training for the position occurred between February and April 2017. As a result there was little change to her 2016 income, although she acknowledged that her income increased in 2017.

The Law:

[14] Although, in his motion, the applicant sought relief under section 52 of the Rules of Civil Procedure, R.R.O. 1990, Reg.194, (RCP), that section has nothing at all to do with reopening the evidence of a trial. In his submissions, he referred to section 59.06 and more specifically s.59.06 (2) (a) which provides:

Setting aside or varying --- A party who seeks to,

a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made;

b) suspend the operation of the order;

c) carry an order into operation; or

d) obtain other relief than that originally awarded;

may make a motion in the proceeding for the relief claimed.

[15] In addition, both parties provided Books of Authorities to the court. Mr. Scott argued that the case of Scott et al. v. Cook et al. 1970 331 (ON SC), [1970] 2 O.R. 769-775 was the seminal decision regarding the issue of reopening a trial to adduce further evidence. In that case, the applicants sought to adduce further evidence after reasons had been delivered but before entry of a judgment. On the eighth page of the decision, the Ontario High Court of Justice found that the rule pertaining to the right of a trial Judge to reopen a case and consider new or fresh evidence after the trial but before judgment was entered, was “less stringent that the principle governing an application to adduce new or fresh evidence before an appellate court.” The court then set out a list of reasons why the test if less stringent for a trial judge, including:

1. The trial Judge should have unfettered discretion in this matter so as to ensure that a miscarriage of justice does not occur;

2. Before entry of a judgment, the trial Judge is in a better position to exercise that discretion than is an appellate Court. The trial Judge knows the factors in the case that influenced his decision and can more readily determine the weight that should be given to the new evidence offered;

3. The authorities indicate that a trial Judge can always reconsider his decision until the judgment is drawn up and entered;

4. The trial Judge is the one in the best position to judge the bearing of the new or further evidence upon the case in light of the evidence already heard;

5. Once a litigant has obtained a judgment, he is entitled not to be deprived of it without very solid grounds.

[16] In Becker Milk Co. Ltd. et al. v. Consumers’ Gas Co., 919740, 1974 545 (ON CA), 2 O.R. 554, the Ontario Court of Appeal was asked by the Appellant for leave to introduce further evidence. Although the Court of Appeal found that “at least some of the principal events described in the affidavit had in fact taken place after the assessment hearing had been completed in March 1971, and prior to the release of the decision of the trial Judge in August 1971”, the matters referred to in the affidavit of the Appellant could have been drawn to the attention of the learned trial Judge before he released the judgment on August 4, 1971. The court went on to say that “save in very special circumstances,” the application to file new evidence should not be allowed when the evidence was available prior to judgment.

[17] On the fifth page of the decision, the Court of Appeal indicated that until Judgment was issued, the learned trial Judge in his discretion could have admitted further evidence if he was satisfied that:

1. the matters in question had come to the knowledge of a party after trial;

2. could not with reasonable diligence have been discovered sooner; and,

3. if the evidence, were of such a character that it might probably have altered the judgment to be given

[18] In Sagaz Industries Canada Inc., Sagaz Industries Inc. and Joseph Kavana v. 671122 Ontario Limited, formerly Design Dynamics Limited, [2001] SCC 59, the Supreme Court of Canada noted after the judge’s reasons had been released, but before the formal judgment was entered, a witness who did not testify at the trial, gave the respondent an affidavit admitting to a conspiracy to bribe and implicate Kavana in the conspiracy. The trial judge who heard the motion to reopen the evidence applied the two part test. The trial judge found that the evidence could have been obtained before trial by the exercise of reasonable diligence and that the evidence, if presented at trial, probably would not have changed the result. The Court of Appeal overturned the trial judge’s decision and the Supreme Court of Canada was asked to determine if the Court of Appeal had erred in reversing the trial judge’s exercise of discretion to refuse to reopen the trial.

[19] The Supreme Court found that the Court of Appeal had erred in substituting its discretion for that of the trial judge in deciding to reopen the trial. At paragraph 65, the court indicated that the Scott decision:

... mandated that both branches of the test to reopen a trial to admit fresh evidence had to be met. Having failed to meet the first branch of the test, it is unnecessary to examine whether the precluded evidence in this case could have been obtained by the exercise of reasonable diligence. It is sufficient to say that that too is a matter largely within the discretion of the trial judge and, absent error by him, that finding should not be interfered with.

[20] In the last case referred to by the applicant regarding an appellant’s application to lead new evidence, the Ontario Court of Appeal in Mehedi v. 2057161 Ontario Inc., 2015 ONCA 670 found that the trial judge’s reasons for refusing to reopen the trial were inadequate and that although he stated the appropriate test to be applied, he did not describe the proposed new evidence or relate the test to it. The court stated at paragraph 13 that:

…the onus is on the moving party to show that all the circumstances ‘justify making an exception to the fundamental rule that final judgments are exactly that, final”. In particular, the moving party must show that the new evidence could not have been put forward by the exercise of reasonable diligence at the original proceedings.

[21] The respondent referred to two of the same cases referred to by the applicant. In addition, the responded referred the court to the decision of Gravely J. in Qit Fer & Titane Inc. v. Upper Lakes Shipping Ltd., 1991 7297 (ON SC), 1991 CarswellOnt 892, [1991] O.J. No. 733, 27 A.C.W.S. (3d) 31, 2 W.D.C.P. (2d) 319, 3 O.R. (3d) 165. In that case, Gravely J. set out the principles to be applied in such an application, as follows:

1. Until judgment has been entered, a trial judge has a discretion to reopen the trial and hear fresh evidence.

2. In exercising such discretion the judge should be guided by the twofold test: that the evidence would probably have changed the result at trial and it could not have been discovered by reasonable diligence.

3. Where justice demands it and particularly where fraud is involved or the court may have been deliberately mislead, a judge is justified in departing from the diligence requirement in order to prevent a miscarriage of justice.

4. The power should be exercised sparingly. The court should discourage unwarranted attempts to bring forward evidence available at the trial to disturb the basis of a judgment delivered or to permit a litigant after discovering the effect of a judgment to re-establish a broken-down case with the aid of further proof.

5. Once a litigant has obtained a judgment, he is entitled not to be deprived of it without very solid grounds.

[22] The court agrees with the principles laid out above and will apply them to the facts of this case.

[23] With respect to the fact that the judgment was not entered, it is important to note that the judgment was released in early February 2017. As of the date of this hearing, the judgment had still not been entered nor enforced in any way. The applicant refused to approve the order so that it could be issued. His reasoning for this step was to ensure that the court would be able to hear a motion to reopen the evidence.

[24] To his credit, the applicant did bring the motion within a month of the delivery of the judgment. For various reasons, the motion was not heard until January 15, 2018, eighteen months after the trial and 11 months after the reasons were delivered. As a result, the court is not functus and has the discretion to reopen the trial and hear fresh evidence. The question is should the court do so?

[25] The factors on which the applicant relies in support of his motion to reopen the evidence are fourfold:

1. the respondent obtained a rental accommodation, for which she applied days before the trial;

2. the respondent obtained a new position at the bank, and as a result, her income increased;

3. changes to the trucking industry resulted in the applicant’s income decreasing; and

4. the respondent was receiving money from unknown sources which should have been added to her income.

[26] With respect to the first factor, the respondent provided a copy of a tenancy application, made days prior to the trial, to the applicant upon request by him in the spring of 2017. During the trial, she made it clear that she had been living with friends for some time and although they had not given her a “move out” date, she felt that she could not remain in their home indefinitely or continue to accept their charity of providing her with housing without remuneration. The lease application was signed by the respondent on July 14, 2016, approximately 8 days prior to trial. The approval of her tenancy was not obtained until after the trial was over. The respondent could not have said with any certainty that she had been approved to take possession of an apartment or that she would be moving on a specified date, at the time of trial. She did not take possession of the apartment until October 2017, three months after the trial ended. The rent on the apartment was set at $976 per month.

[27] Although the respondent had not been approved for the apartment, she should have advised the court during her evidence that she had tendered an application to lease an apartment, where the rent was $976 per month. However, the fact that she had applied for a lease on an apartment that cost her $24 per month less than amount she believed she would need to obtain an apartment would not have changed, in any way, the amount of support that was ordered to be paid. To not consider a reasonable amount of rental income as being needed by Ms. McGrail would require the court to find that her that friends and family had a greater obligation to support Ms. McGrail than did her spouse. The court finds that this factor would have not affected the outcome of the trial in any way. The fact is the respondent made it very clear during her evidence that she felt she had to move out of her friends’ home and needed to rent accommodation for herself. She testified that she needed approximately $1,000 per month to obtain appropriate accommodation. It had been several months that she had been forced to rely on the charity of her family and friends to survive financially. Following the trial, she followed through with those plans. The tendering by the respondent of the application for rental accommodation changed nothing about the evidence presented at trial, and would have no effect on the decision made.

[28] The applicant also argued that Ms. McGrail showed an income of $36,000 on her tenancy application. Although this is correct, Ms. McGrail did not earn $36,000 in 2016 as shown on her income tax return. While stating a higher income on a tenancy application may be disingenuous, it is no uncommon for people to exaggerate their income on applications to ensure they obtain the service or thing for which they are applying. At the time of her application, Ms. McGrail had no recent rental history and would not have been able to list a prior landlord who could corroborate for a new landlord that Ms. McGrail had always paid her rent on time. She had lived in the applicant’s home from 2004 until after the separation in October 2015. She then relied on friends who provided housing to her at no charge. Ms. McGrail needed to obtain her own apartment. The court finds that had this information been known at the time of trial, it would have had no effect on the amount or duration of spousal support ordered.

[29] With respect to the second factor, it is correct that the respondent was offered a new position as of December 7, 2016. As a result of this position, her base salary was increased from $33,888.88 (shown as employment income on her 2016 income tax return) to $36,570 (indicated in a letter from her employer offering her the new job); an increase of $2,681.12. As of the date of trial, Ms. McGrail had not been offered this position.

[30] According to the letter dated December 7, 2016, there was also an “incentive compensation” factor to which Ms. McGrail was entitled. However, as of the date of the judgment, Ms. McGrail had not started training for the new position; and did not know whether she would be sufficiently successful in the new position to be paid incentive compensation. She started to train for the position in February 2017. The training went on until April 2017, at which time she started working in her new position. It may well be that at the end of 2017, Ms. McGrail’s income would be higher, but prior to the beginning of February 2017, when the judgment was rendered, she had no way of knowing what her income might be, except for the base salary, which as noted, was a very small increase over her 2016 income, that had been used to calculate support.

[31] When the court determined the support owing to Ms. McGrail, the SSAGs were used. The court imputed income to Ms. McGrail at $32,330. She earned $33,888.88, a difference of only $1,558.88. Had Ms. McGrail’s income of $33,888.88 been used in the SSAG calculation, the range of support would have been $931 at the low range; $1,086 at the mid-range; and $1,241 at the high range; with the duration remaining the same at 5.5 to 11 years. The fact is that had her exact 2016 income been known to the court in January 2017, it would not have changed the resulting spousal support award. The average of the low and high amounts is $1,008.50, a figure very close to the $1,000 per month that was ordered.

[32] It is evident that Ms. McGrail earned more money in 2017, but the amount of that income could not have been known to her in January 2017. The increase in her income occurred after the decision was rendered and as such may trigger a motion to change. However, as of the date of the decision, this information was not available, except with respect to her new base salary; it was speculative at best; and any amount of incentive income could not have been provided to the court with any certainty. It would only be at the end of 2017 when Ms. McGrail was able to provide the court with specific information regarding her income for the year. As of the date of the judgment, the facts were that her base salary was going to increase by a very small amount; she had not started training for her new position; and she had no idea whether she would earn incentive compensation. Had the court been provided with the exact amount of Ms. McGrail’s 2016 income in January 2017, the difference in her salary would not have changed the result of the SSAG calculations, either in amount or duration.

[33] The court finds that this factor is not sufficient to reopen the evidence of the trial. As indicated it may lead to a motion to change once the parties have precise evidence regarding the income they earned in 2017.

[34] Another factor that the applicant argued should be considered in the motion to reopen the evidence related to the changes to the trucking industry and the resulting decrease in the applicant’s income. To support this factor, the applicant attached to his affidavit dated February 22, 2017 an article entitled “Log mandate to set to take effect December 2017.” In that article it was noted that a federal rule to require truck operators to use electronic logging devices to keep records of duty status would take effect December 16, 2017. The article was dated December 2015 and provided carriers and drivers with a two year window to comply with the rule’s requirements.

[35] According to Mr. Scott, the electronic logging device would prevent him from making additional money by regulating the number of hours that he could drive in 24 hour period. He noted that prior to the regulation coming into effect, if he was caught up in traffic, he could make up the time by having a short nap and then continue driving. This would no longer be possible with the logging device.

[36] This information was not tendered by Mr. Scott during the trial in July 2016, even though the information was well known to him and all drivers and carriers in the industry as early as December 2015. The article spoke of a two year window that would allow the drivers and carriers time to comply with the changes. Ms. McGrail deposed in her affidavit that she and the applicant discussed the upcoming changes and the possible effect those changes would have on the applicant. This information was known to the applicant a full eighteen months prior to the trial.

[37] Additionally, because the changes only came into effect on December 16, 2017, it is premature to determine if in fact the changes will have an effect on Mr. Scott’s income. That will only be clear once his year end income as of December 31, 2018 is known. Again, this information may provide the basis for a motion to change, but is not a factor that should lead to a re-opening of the evidence at trial. If the evidence was re-opened on this factor, the information would be speculative at best.

[38] In his material filed on the motion, Mr. Scott indicated that his income in 2016 was only $94,861.47, not $101,568.00 that he earned in 2015. No explanation was given for this decrease, but it could not have had anything to do with changes in the trucking industry because they were not yet in place. If the decrease was the result of some voluntary and intentional reduction of his hours, this would not be considered as a reason to change the support.

[39] The court was also not provided with information from Mr. Scott as to why he earned less in 2017. During the trial, he testified that he intended to cut back on his working hours, but the evidence was clear that he had not done so in the weeks and months leading up to the trial. What was clear, was that Mr. Scott did not feel obliged to pay any spousal support and was willing to do what was necessary to avoid his obligations.

[40] Mr. Scott demanded financial disclosure from Ms. McGrail after the judgment was rendered. At that point in time, there were no ongoing proceedings under which he could make such demands. Despite that, Ms. McGrail responded to each of his demands, providing a copy of her tenancy application, her T4 and income tax return for 2016, detailed information regarding her new position, bank records and a financial statement. On the other hand, Mr. Scott produced his T4 for 2016 and filed at Exhibit D of his affidavit filed on the motion, some pay stubs, dated January 20, February12, June 15, and July15, 2016. He did not file his 2016 income tax return or notice of assessment, a document that would have been filed with CRA by April 30, 2017 and would have been available to him for this hearing. At the hearing of the motion, he also filed pay stubs dated December 1 and December 29, 2017 to support his position that his income had decreased. That information alone would not support a motion to change much less an opening of evidence from a trial that had occurred eighteen months earlier. Although Mr. Scott argued that the court had enough information simply to change the support ordered based on the material filed, Mr. Scott’s financial information was sadly lacking and would never be permitted to stand alone on a motion to change, nor is it sufficient evidence on which to change the support ordered.

[41] Mr. Scott also provided no financial statement. There was no evidence as to whether he continues to support a new girlfriend and her children in his home or whether that new partner is contributing to the running of the household. The evidence at trial was that his new partner was not working at the time and contributed $500 per month to the household expenses. This apparently covered the housing costs, property taxes, insurance, utilities, and food not only for her but for her children. This contribution for three additional residents in the home is nominal at best. The court is not prepared to rely on Mr. Scott’s marginal evidence regarding his financial position to reopen the evidence or to change the support that was ordered.

[42] The final factor on which the applicant relied was the fact that the respondent was receiving funds regularly from sources that were not included in her income. To support this assertion, he filed Ms. McGrail’s bank statements that she had provided to him. During the trial, Ms. McGrail testified that she had to rely on family and friends to meet her basic needs. She made it clear that her parents were giving her money when she was unable to meet her expenses. The court knew that she was a holder of an account with her mother and that her mother let her transfer money from it when needed. This was one of the reasons she needed spousal support. She deposed in her material that she borrowed money for the first month’s rent on her new apartment, and that money was clearly traceable from the joint account with her mother to her own account. There were also some small amounts of money from insurance companies. The court was provided with no information as whether Ms. McGrail was borrowing against insurance policies, (which would require repayment with interest) or whether she had some investments from which she received money. What was evident, however, was the amounts received from these additional sources was very small.

[43] There is no doubt that the majority of Ms. McGrail’s additional income came from her parents and more specifically from the bank account that she shared with her mother. The respondent was very clear that she could not subsist on her salary and pay rent. She testified that her parents gave her money regularly to make up her monthly shortfalls. This information was known at the time of trial

[44] Mr. Scott argued that the court should not accept that these amounts were gifts from her parents, because there is a limit to the amount that parents are prepared to provide to their children. He argued that most parents would not continue indefinitely to provide such assistance. However, that statement has no basis in fact and is his opinion only. What one parent is prepared to provide to their child, no matter what age, may be different from what Mr. Scott believes a parent should give. But there are many parents who provide financial assistance to their adult children, if the parents are financially able to do so and if their child requires such financial assistance to meet basic needs. In this case, the length of time that Ms. McGrail has had to look to her parents for financial assistance has been prolonged by the fact that Mr. Scott has refused to comply with the order made and has created a situation where the order could not be enforced.

[45] Ms. McGrail could not afford an apartment of her own. She was entitled to have a place to live and not continue to live on the charity of friends indefinitely. Funds given to her by her mother may be a gift; a loan; or be part of any inheritance that Ms. McGrail may someday receive from her parents. It is not unreasonable for parents who are financially able to provide funds to adult children when needed rather than see them homeless.

[46] The information regarding gifts/loans from Ms. McGrail’s parents was provided at trial and is not new information. It is not sufficient for Mr. Scott to argue that these gifts/loans from her parents are something else, simply because his view is that a parent would not provide such funds to their children. It is likely that if Ms. McGrail were to ever receive any support from Mr. Scott, as ordered, she would no longer need to take money from her parents. This information was known and would not change the result of the trial.

[47] In the court’s view, none of the factors raised by Mr. Scott meet the two fold test required to re-open the evidence portion of the hearing. As noted, either party is at liberty to bring a motion to change in the event that material changes in circumstances occur. However, it is inappropriate for Mr. Scott to suggest that Rule 2 (3) (b) of the Family Law Rules be used to change the support order based on the information provided on the motion in order to save time and expense. Mr. Scott did not file the necessary information that is required of him for the court to change the order made. He is attempting, with this motion to provide scanty evidence of changes since the judgment was delivered to avoid having to bring a motion to change, and delay the operation of the order.

[48] With respect to the last point, it cannot be said that Mr. Scott comes to court on this motion with clean hands. Despite making three times what the respondent made at the time of trial, his position was that he should not have to pay any support for the respondent. His “back up” position was that at best he should only pay $300 per month for approximately three years. Since the date of the judgment, Mr. Scott has paid nothing by way of support to Ms. McGrail. As a result she has had to continue to rely on her parents to meet her needs. The court questions why Mr. Scott has made no effort to pay a portion of the support ordered as proposed by him. He has effectively defeated the order of the court for more than a year now, and then argues that money Ms. McGrail has had to obtain from her parents to assist in meeting her needs should be considered income.

[49] The court finds that Mr. Scott has not met the test to reopen the evidence portion of the trial and as such, his motion is dismissed. The court is also not prepared to stay enforcement of the order for support or the order for costs. Mr. Bernard provided the court with the order for support which I have reviewed and signed. That order shall be issued and enforced. I am also prepared to sign the order for costs, which was not provided to court at the time the motion was heard. Mr. Bernard can send that order to the Judicial Assistant, Ms. Eagen, for signature by me. On the consent of Ms. McGrail, I am prepared to make an order that the parties exchange income tax returns and notices of assessment each year by June 1, so that each may assess whether a motion to change should be brought

[50] For reasons given above, and order will issue as follows:

1. The motion by Mr. Scott filed at Tab 21 of volume 4 of the continuing record, is dismissed in its entirety.

2. On consent of both parties, the parties shall exchange copies of their income tax returns and notices of assessment each year by June 1, commencing in 2018.

3. If the parties cannot agree on costs of this motion, they may make written submissions, limited to 5 pages. The respondent will serve and file her submissions on or before March 2, 2018; the applicant will serve and file his responding submissions on or before March 23, 2018; and the respondent will serve and file any necessary reply submissions on or before April 13, 2018.

“Justice Margaret A. McSorley”

Justice Margaret A. McSorley

Date: February 2, 2018