Ferlaino v. Hoyes, 2019 ONSC 1261

NEWMARKET COURT FILE NO.: FC-12-41473-02

DATE: 20190301

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Frank Joseph Ferlaino, Applicant AND: Susan Elizabeth Hoyes, Respondent

BEFORE: The Honourable Mr. Justice D.A. Jarvis

COUNSEL: Frank Joseph Ferlaino, Self-Represented N. Waldman, Counsel for the Respondent

HEARD: February 6, 2019

Ruling on Motion

Background

1The parties are former spouses. They married on December 31, 2003 and were divorced by Order of Nelson J. dated October 15, 2013. There are three children of the marriage. For convenience of reference the parties shall be described as “the father” and “the mother”.

2Before their divorce, the parties were engaged in family law proceedings brought by the mother in 2012. A comprehensive Separation Agreement (the “Agreement”) was signed on or about September 11, 2013.

3The father began this Application in September 2014, seeking Orders that would essentially change the access and support arrangements reflected in the parties’ Agreement. A final Order dealing with custody and access was made on September 29, 2015.¹ The financial issues have not been resolved. The mother has now brought this motion to strike the father’s pleadings and for leave to proceed with an uncontested trial. She claims that the father is substantially in arrears of support, has failed to pay an $8,000 costs Order, and has failed to comply with disclosure Orders. If the father’s pleadings are struck, the mother requests Orders retroactive to January 1, 2013, for child and spousal support, special and extraordinary expenses payments for the children, and that the father owes her $10,871.68, representing one-half of an account receivable that the father did not disclose before the Agreement was signed but which he received afterwards.

4The Agreement provided that the father would pay monthly child support of $2,280 and eighty-four per cent of the children’s agreed special or extraordinary expenses based on his income of $127,727.24 and the mother’s $0 income. The child support payable complied with the Child Support Guidelines. The parties also agreed that the father would pay $1,571 a month for spousal support. Complete releases dealing with property were included.

5The following procedural events relevant to this motion include the following:

(a) on February 18, 2015, Nelson J. made an Order requiring the father to pay child support of $1,562 monthly and spousal support of $600 monthly effective February 1, 2015 based on an annual income of $80,000. The father was also ordered to produce specified financial disclosure. The mother was granted leave to amend her Answer “with respect to the issue of equalization”;

(b) on September 22, 2015, Salmers J. reduced the monthly child and spousal support payable by the father to $1048 and $2, for child and spousal support, respectively, effective for September 1, 2015;

(c) on December 11, 2017, a further disclosure Order was made. The disclosure required from the father was listed and he was ordered to provide it within fourteen days of the date of the Order;

(d) on January 10, 2018, MacPherson J. made a consent Order varying the father’s child support obligations to require that he pay $2,313 a month for child support based on an income of $125,000. The Order noted that this level of income was attributed to the father on a without prejudice basis to the mother to seek a further adjustment once the father had satisfied his income disclosure obligations. There was no change made to the $2 monthly spousal support Order of Salmers J. In addition, the father was ordered to provide all of the disclosure that remained outstanding from the Order made on December 11, 2017, by January 29, 2018. The Order adjourned to March 28, 2018 the mother's claims for retroactive adjustments to child and spousal support, and costs;

(e) on March 28, 2018, Bird J. ordered that if the father had not complied with the disclosure Order made on December 11, 2017 within ninety days that the mother could move to strike his pleadings. Paragraph 2 of the Order directed that if for any reason, the father was “… not able to provide an item of disclosure he shall explain in an affidavit the steps he has taken to comply and the reason he has been unsuccessful”. In addition, Bird J. ordered that the father pay $2,844 monthly for child support and $1,132 monthly for spousal support based on an imputed annual income of $160,000, retroactive to January 1, 2017. The father was ordered to pay costs to the mother of $8,000 inclusive of disbursements and H.S.T.;

(f) on July 31, 2018, the mother brought a motion pursuant to Family Rule 14(10) for leave to proceed with an uncontested trial. On August 21, 2018, Kaufman J. directed that the mother's motion be converted to a regular motion and that if the mother did proceed with her motion, then she should file the prescribed Form 23C affidavit for the uncontested trial relief that she was requesting along with her regular motion affidavit. The father was cautioned by Kaufman J. that even though striking pleadings was a drastic step, there was a distinct likelihood that unless the father dealt his court-ordered disclosure obligations and paid the outstanding costs award the mother would be granted the relief she sought.

6The mother relies on her affidavit sworn July 24, 2018, for the motion read by Kaufman J., updated by reference to her Form 23C affidavit sworn January 25, 2019, and the exhibits referenced in those affidavits, in support of her motions. She filed a Statement of Account from the Family Responsibility Office that, when adjusted for payments made shortly before the mother’s motion was heard, showed support arrears of $43,884.19 as of January 25, 2019.

7The father provided no affidavit pursuant to the Order of Bird J. but did file an affidavit sworn January 31, 2019, less than a week before the mother’s motion was argued. He claimed, without providing any details, that he had disclosed what was required of him. Except for his complaints about his access with the children and the financial hardship he was experiencing, those portions of his affidavit dealing with his business affairs and his income were incomprehensible. His submissions were of little assistance.

8The father has not paid anything toward the $8,000 costs awarded by Bird J. on March 28, 2018.

Evidence

9The parties began cohabitating in July 2001, married on December 31, 2003, and separated on February 12, 2012. They share custody of their three children of the marriage (ages 14, 13 and 8) all of whom reside primarily with their mother. When the Agreement was signed in September 2013, the father acknowledged that his annual income was $127,727.24 (this figure was based on his 2012 earnings). At, or shortly afterwards, the father’s employment was terminated. The mother was a homemaker when the parties separated, and when the Agreement was signed. She had been employed as a community services worker earning about $25,000 to $40,000 a year before the parties started their family. Except for some minor work that the mother did outside of the home, the parties agreed that the mother’s income was $0. Both parties were represented by lawyers when their Agreement was signed.

10The father found new employment in April 2014 but at a lower income of $80,000. It was around this time that he started to fall behind in making the support payments required by the Agreement.² In September 2014, the father began this Application to vary the support terms.³ At that time the support arrears were $15,175. When Nelson J. reduced the support Order on February 15, 2015, the support arrears were $24,392.19.

11In June 2015, the father’s employment was terminated again but he continued to be paid his full salary until mid-August 2015 after which he was unemployed. This led to the Order of Salmers J. on September 22, 2015 that reduced child and spousal support even further. In November 2015, the father incorporated a personal services company for which he now works as an IT consultant. Most of the company’s income is earned by providing back office support work for school boards.

12In December 2015, the father advised the mother that he would be earning a yearly income of $70,000 from his company. There was no temporary variation of the support Order made by Salmers J.

13Each of the support Orders of MacPherson J. and Bird J. in 2018 were made in response to motions by the mother to strike the father’s pleadings and to compel the father’s compliance with his court-ordered disclosure obligations.

14Exhibit G to the mother’s July 24, 2018 affidavit is a Schedule listing the disclosure requested, its status, and commentary that includes the father’s responses. There are fifteen items for which disclosure was requested, three of which were provided and one of which was partially provided. Almost all of the disclosure not provided relates to the father’s personal services company; notably, the absence of financial statements, incomplete bank account, credit card and credit line statements for the father personally and for his company, and non-production of personal and corporate income tax returns (with all attachments) for 2015 to 2018. There are no current (i.e. 2016-2018) Notices of Assessment from the father. While the ledgers provided for the company for some of the relevant years indicate what appear to be personal expenses for the father being paid by the company, there is nowhere, any summary of those expenses provided by the father, which would indicate whether they wholly, partially, or in no way related to personal as distinct from company expenses. There is no third-party income analysis from the father. The mother has not prepared one either.

15The father did not dispute the references in Exhibit G attributed to his disclosure comments. In those comments, he said that he had provided all of the details that he could retrieve and that he had made his best efforts to provide the requested disclosure. He also said that he had not yet arranged for the 2016 and 2017 financial statements for the company to be prepared; he had quotes from accountants to have this work done but lacked the time to gather the information needed and the means to pay for the work. He had no assets and had a bad credit rating.

16The mother catalogued in her affidavits the problems experienced with the father’s failure and/or refusal to engage with her and to consent to contributing to the children’s s. 7 expenses. Both of the parties’ children have special needs; one a learning disability, and the other serious mental health issues involving generalized anxiety and major depression, as well as learning issues. The mother also identified and, where appropriate, supported by third party evidence these special needs claims and her other claims for payment of the father’s contributory share. The mother claimed $9,381.10 for the father’s share for the period from November 1, 2014 to December 31, 2018, and $1,075 monthly effective January 1, 2019. These claims included tutoring, music, and activity costs for the children.

17Undisclosed to the mother before the Agreement was signed, were refunds owing to the father by Canada Revenue Agency totalling $21,743.36 which were paid to him afterwards. The mother’s evidence was unchallenged that during the parties’ married cohabitation the father never filed income tax returns and only did so after the Agreement was signed. It is apparent that the father has continued that practice. On February 18, 2015, Nelson J. granted the mother leave to amend her Answer. She wanted the equalization terms of the Agreement recalculated to award her $10,871.68 representing one-half of the refund.

Analysis

18Since the mother has commingled the evidence relating to her motion to strike the father’s pleadings with the evidence upon which she relies for a final Order, the court is obliged to review the entirety of the evidentiary record. This is particularly necessary because the mother has asked the court to impute income to the father based on what the mother contends is incomplete disclosure that the father has so far provided, the inferences to be drawn from that incomplete disclosure and what the father has failed to disclose.

(a) Striking pleadings

19Family Law Rules 1(8) and (8.4) provide as follows,

FAILURE TO OBEY ORDER

(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(a) an order for costs;

(b) an order dismissing a claim;

(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;

(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;

(f) an order postponing the trial or any other step in the case; and

(g) on motion, a contempt order. O. Reg. 322/13, s. 1.

CONSEQUENCES OF STRIKING OUT CERTAIN DOCUMENTS

(8.4) If an order is made striking out a party’s application, answer, motion to change or response to motion to change in a case, the following consequences apply unless a court orders otherwise:

1. The party is not entitled to any further notice of steps in the case, except as provided by subrule 25 (13) (service of order).

2. The party is not entitled to participate in the case in any way.

3. The court may deal with the case in the party’s absence.

4. A date may be set for an uncontested trial of the case. O. Reg. 322/13, s. 1.

20In Burke v Poitras⁴, the Ontario Court of Appeal emphasized the risk to litigants who ignore their disclosure obligations and fail to obey court Orders;

[11] It is well-established that the most basic obligation in family law is the parties’ duty to disclose financial information and that this requirement is immediate, automatic, and ongoing. As a result, it should not require a court order to enforce: see Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6, at paras 11-14. As this court warned in Manchanda v. Thethi, 2016 ONCA 909, 84 R.F.L. (7th) 374, at para. 13: “Those who choose not to disclose financial information or to ignore court orders will be at risk of losing their standing in the proceedings as their claims or answers to claims may be struck.”

21In Van v. Palombi⁵, the Divisional Court identified the three-prong test applicable to striking pleadings;

[30] The legal principle governing the exercise of judicial discretion to strike a party’s pleadings is a three-pronged test as follows:

(1) Is there a triggering event justifying the striking of pleadings?;

(2) Is it appropriate to strike the pleadings in the circumstances of the case?;

(3) Are there other remedies in lieu of striking pleadings that might suffice?

[31] These three-pronged principles are well established in the case law. (See Kovachis v. Kovachis, 2013 ONCA 663, 367 DLR (4th) 189; Chiaramonte v. Chiaramonte, 2013 ONCA 641, 370 D. L. R. (4th) 328; Purcaru v. Purcaru, 2010 ONCA 92, 265 O.A.C. 121 at paras. 47-48; King v. Mongrain (2009), 2009 ONCA 486, 66 R. F. L. (6th) 267 (Ont. C.A.); Haunert-Faga v. Faga (2005), 2005), 2005 CanLII 39324 (ON CA), 203 O.A.C. 388 (C.A.); and Marcoccia v. Marcoccia (2009), 2008 ONCA 866, 50 R. F. L. (6th) 1 (Ont. C.A.).

22The triggering event in this case, like Van, is the non-compliance by the father with paying the costs award made by Bird J., his failure to fully comply with disclosure Orders, and his non-payment of support.

23In Van, the court dealt with the exercise of the court's discretion once a triggering event was found to exist,

[35] The jurisprudence indicates that even in the event of a court finding a “triggering event”, justifying the striking of pleadings, it is still within the discretion of the court to decide to strike or not on all of the circumstances of the case. Furthermore, the striking of pleadings and the denial of trial participation which follows as a result, should only be done in exceptional circumstances and where no other remedy would suffice. The third step of the test is the examination of other remedies that might be appropriate in lieu of striking pleadings, a step that the motion judge fails to mention.

[36] The rationale for such a cautious and restrained test was explained in the case of Kovachis v. Kovachis, supra, at paragraph 25. The consequence of an order striking the pleadings of a party effectively prohibits that person from participating in any way at the trial of the matter. Without that participation there is a risk that the court will not have all necessary and accurate information to reach a just result. If the judgment provides for continuing obligations or relationships that can only be varied on changed circumstances, as often happens in family law judgments, then injustice may be perpetuated.

24The Divisional Court in Van allowed the father's appeal, in part, from an Order striking his pleadings by permitting him to participate in the trial on the issues of custody and access, and then only on a limited basis. Unlike Van, there is no parenting issue remaining in this case.

25The fact is, that the father has persistently ignored repeated Orders of the court. Bird J. ordered the father to file with the court an affidavit explaining why he was unable to comply with the disclosure that I ordered on December 12, 2017. The father ignored that Order. Even a strongly worded caution by Kaufman J. about the serious personal consequences of Order non-compliance, in this case Orders dealing with financial disclosure and costs, seems to have fallen on deaf ears. Loss of driving privileges, suspension of his passport, and probable incarceration are clearly in Mr. Ferlaino’s future. All of this is self-inflicted.

26The father’s pleadings will be struck. The court is concerned though with the mother’s evidence about her support claims and entitlement to her property claim.

(b) Income/Support

27It is unchallenged that the father’s 2013 to 2015 income (as confirmed by his Notices of Assessment) was $174,085 (2013), $59,719 (2014) and $61,056 (2015). For 2016 to 2018, the mother seeks to impute to the father a significantly higher level of income of $180,000 a year. She bases this level of income on the father’s lifestyle, and her review of the 2016 and 2017 ledgers, or spreadsheets, for his company, which show revenue and expenses that she contends show many unexplained, and likely personal, expenses. The father has provided no 2018 information.

28The mother’s 2013 to 2018 income (as confirmed by her Notices of Assessment, Tax Return Summary for 2017 and 2018 T4) was $4,316 (2013)⁶, $1,200 (2014), $5,099 (2015), $6,299 (2016), $9,864 (2017) and $1,044 (2018)⁷. For the purposes of her motion for a final Order the mother indicated that she was prepared to agree to an imputed income of $10,000 a year for 2015 to the present.

29The spreadsheet provided by the father has the handwritten name of his company, 24932495 Ontario Inc., at the top of the first of its twenty-two pages of entries for the period from July 4, 2016 to December 20, 2017. These pages list credits and debits and a brief description for each entry, although many are simply described as “other” (whatever that is supposed to mean). There is no disclosure of the company’s fiscal year. The mother reviewed the spreadsheet and said that the company’s 2016 gross revenue was $87,935, and in 2017, it was $206,842, although those sums are nowhere apparent. I am not prepared to independently verify the calculation.

30While the spreadsheet clearly shows personal nature expenses such as “kids”, “McDonalds”, “Costco”, and many, many, more similar kinds of expenses, the mother did not provide the court with a breakdown, and total, distinguishing what she alleged were personal from business expenses. Typically, this should be the father’s obligation. However, in requesting this court to impute a $180,000 income to the father, the mother is not only asking this court to engage in guesswork, but this figure is also inconsistent with her affidavit sworn on January 25, 2019 (para. 15) wherein she alleged that when the parties separated in 2012, the father was earning about $130,000 a year and, in addition, an unreported income never disclosed to her. Nowhere in any affidavit did the mother point to third party documents that showed an income/expense disparity that would help explain a $50,000 income difference. There must be better evidence than this to impute to the father the income requested. It is not for the court to sift through the father’s spreadsheet and speculate about what appears to be a personal as opposed to business-related expense paid by the father’s company and to then gross-up those disallowed expenses by some unknown factor not referenced in the mother’s material.

31The father’s non-disclosure presents this court with a Hobson’s choice; either impute a $180,000 income to the father on a less than satisfactory evidentiary basis; or impute that level of income to him in circumstances that may only result in future in the kind of injustice referenced in Kovachis, where there are continuing obligations or family relationships, and which will inevitably involve a carousel of motions to change and support default hearings. To avoid this, the father should be given one last, limited chance to provide the necessary and accurate disclosure needed by the court to determine, as best as possible, his qualifying support income for the years under consideration (2016 to 2018, and currently), failing which, the court will have no alternative but to impute to him an income not less than that proposed by the mother.

(c) S. 7 expenses

32Paragraphs 3.6 to 3.9 of the Agreement provided for the determination, and payment, of this category of child expense,

3.6. The children’s current special or extraordinary expenses are:

(a) YMCA Family Pass Through to December 31, 2014; and

(b) Dance for Druanna for the September 2013 to June 2014 session.

3.7. Frank will pay to Susan 84% percent of the children’s agreed upon special or extraordinary expenses within five days of Susan delivering proof to him of the expense. In determining his contribution to the expense, Frank may deduct any income tax benefit or other subsidy received by Susan for that special or extraordinary expense.

3.8. The parties will only contribute to a child’s special or extraordinary expenses if the parties consent to the expenses in advance, in writing. Neither party will unreasonably withhold consent. If the parties cannot agree, they will use the section of this Agreement entitled “Dispute Resolution” to resolve this issue.

3.9. These items will not constitute special or extraordinary expenses:

(a) Clothing, including shoes, coats, and other outerwear;

(b) any school event that costs less than $50.00 per event.

33Included in the mother’s $9,381.10 claim representing what she argued should be the father’s share of the children’s s. 7 expenses from 2014 to December 31, 2018⁸ were expenses for; music and voice lessons, activities such as soccer and basketball, school lunches (pizza days), fundraisers, clothing and attendance at off-premises school events; none of which appear to be captured by the Agreement, or which presumptively qualify as s. 7 expenses. Absent specific agreement between parents as to what should constitute a s. 7 expense (as the parties did in the Agreement dealing with the YMCA and their daughter’s dance and, impliedly, school events costing more than $50), the default entitlement is framed by s. 7(1) of the Child Support Guidelines (the “CSG”) and the expense captured by the prescribed table amount. Uninsured drug, optometry, and tutoring expenses do qualify, as do dance-related costs for the parties’ daughter.

34The support calculations provided by the mother did not incorporate any amount for the s. 7 expenses and proceeded on the basis that the court should fix the father’s contributory share at the eighty-four per cent set out in the Agreement, even though the mother was seeking a variation in support payable for 2014 to 2018, and the incomes for those years for the most part varied. While I am sympathetic to the mother’s complaint about the father’s persistent refusal to sensibly engage in discussions about these additional expenses, she must recalculate what she is claiming for s. 7 expenses in compliance with the CSG and incorporate those into proper support calculations, once each party’s qualifying income is determined (there is no issues about those incomes for 2013 to 2015). It does not appear that either party ever paid any attention to paragraph 7 of their Agreement dealing with Dispute Resolution.

(c) Variation of Agreement⁹

35The mother has asked for an Order affirming the property settlement contained in the parties’ Agreement, except for the sum of $10,871.68 representing one-half of an undisclosed account receivable owing to the father before the Agreement was signed but paid to him afterwards.

36Paragraph 8 of the Agreement dealt with the parties’ property, principally the distribution of the net sale proceeds of the parties’ matrimonial home, repayment of debt to the mother’s father, and release by the mother of any interest in the father’s pension. Paragraph 8.3 provided that after the home sale proceeds were distributed,

“… each party shall retain ownership of any and all assets and funds held solely in his or her name in any bank accounts or investments free and clear of any claims by the other party”.

37Paragraphs 12.1 and 12.5 of the Agreement provide the following,

12.1. Except as otherwise provided in this Agreement, Frank and Susan release each other from all claims either may have against the other now or in the future under the terms of any statute, in equity or the common law, including all claims under the Divorce Act, the Family Law Act, and the Succession Law Reform Act, for:

(a) possession of property;

(b) ownership of property;

(c) division of property;

(d) compensation for contributions to property;

(e) monetary or proprietary remedies for unjust enrichment including claims where there is a joint family venture; and

(f) an equalization payment.

12.5. Frank and Susan acknowledge that this agreement is in full and final satisfaction of all claims made by either of them in Court File No. FC-12-041473-00 in the Superior Court of Justice Family Court Branch at Newmarket, Ontario.

38Paragraph 13.15(a) to (c) of the Agreement provide,

13.15.

(a) Frank and Susan are each satisfied with the financial information each has about the other and each waives further financial disclosure.

(b) Frank and Susan agree that lack of financial disclosure shall not constitute a ground for avoiding the provisions of this Agreement. Frank and Susan seem financial disclosure irrelevant to the negotiation of the terms of this Agreement. (bolding added)

(c) The parties acknowledge that their respective solicitors have drawn their attention to section 56(4)(a) of the Family Law Act, that provides as follows:

“56(4) A court may, on application, set aside a domestic contract or a provision in it, (a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made.”

39It is difficult to interpret subparagraphs 13.15(a), (b) and (c) as meaning other than that the parties were made aware, before they signed the Agreement, that financial non-disclosure would not vitiate it, and that they agreed to waive non-disclosure as an invalidating ground. While paragraph 12 of Nelson J.’s February 18, 2015 Order granted the mother leave to amend her Answer “with respect to the issue of equalization”, that Order did not determine that the mother could ignore the clear and unambiguous terms of the Agreement. In paragraph 54 of the Amended Answer, the mother pleaded that she was “seeking an order setting aside the property provisions of the Agreement” and that she wanted “the equalization payment to be recalculated in order to include [the father’s] tax refunds”. Based solely of the mother’s allegation of the father’s non-disclosure of his future tax refund, it seems to me that this relief is unavailable to the mother in light of paragraphs 12.1, 12.5, and 13.15 of the Agreement.

Disposition

40The father is not entitled to any further participation in these proceedings but that does not mean that he cannot, even at this late date, help himself. He can do that by complying with the outstanding Orders of the court so that the court will have as complete an evidentiary record as possible. There are very serious consequences to Order non-compliance, especially non-payment of support. The father is encouraged to seek out legal advice.

41The following is ordered;

(a) the father’s pleadings are struck;

(b) the father shall provide to the mother financial statements for 24932495 Ontario Inc. prepared by a qualified chartered accountant and proof that the returns have been filed with Canada Revenue Agency (“CRA”). This shall be done by no later than April 30, 2019;

(c) the father shall provide to the mother complete, legible copies of his 2016 to 2018 income tax returns with all attachments. He shall provide to the mother a copy of his 2017 Notice of Assessment and proof that he has filed these returns with CRA. This shall be done by no later than April 30, 2019;

(d) the father shall file with the court on or before May 10, 2019, an affidavit confirming that he has complied with (b) and (c) above and my Order dated December 11, 2017. The affidavit shall have attached to it, as exhibits, complete copies of the financial statements, tax returns, proof of their filing with CRA, and his 2017 Notice of Assessment as referenced in (b) and (c);

(e) the mother shall recalculate the child and spousal support presumptively owing for 2013 to 2015, based on the parties’ line 150 incomes for those years as set out in paragraphs [27] and [28] above using the mid-range SSAG. For 2015, the mother’s income shall be $10,000;

(f) the mother shall recalculate the parties’ respective shares for the children’s s. 7 expenses for 2013 to 2015 after taking into account the directions contained in paragraphs [33] and [34] above;

(g) the mother shall file with the court by March 22, 2019 an affidavit to which will be appended, as exhibits, support calculations for 2013 to 2015, summaries for the children’s s. 7 expenses (which shall be reflected in the support calculations), with credit to the father for child and spousal support paid for those years and, in the case of unpaid spousal support, the mother’s position and calculation as to the net after-tax benefit to her of that unpaid support, as if it had been paid in the applicable calendar year¹⁰;

(h) in the event that the father complies with all of the terms of this Order, then the mother shall file with the court on or before May 31, 2019; an affidavit that sets out her position with respect to the support owing by the father for 2016 to 2018, and takes into account, and is supported by, the same income and s.7 expense calculations as set out in (e) to (g) above. The mother’s income shall be $10,000 for each of those years;

(i) if the father fails to comply with this Order, in particular (b) to (d) above, then the father’s qualifying income for support determination purposes shall be $180,000 a year effective January 1, 2016, and for every year afterwards until varied. The mother shall file with the court as soon after May 10, 2019, as may be practicable the affidavit referenced in (h) adjusted to reflect the father’s $180,000 yearly income;

(j) when, or if, the parties file the affidavits required by this Order, they shall forthwith so advise the judicial assistant (Meghan.Billings@Ontario.ca);

(k) except as ordered by (d) above, the father is not entitled to file any other document with the court, to bring any motion or to start any proceeding relating to his support obligations without leave of the court. Any such motion shall be brought by 14B Notice of Motion to my attention on 10 days’ notice to the mother and must provide satisfactory evidence that the father has complied with (d) above and paid the costs award made by Bird J. together with any accrued interest;

(l) the mother’s motion to set aside the property provisions of the Agreement is dismissed; and

(m) the costs of the mother’s motions are reserved.

42This Order is more complicated and less final than is preferable but that is the result of the father’s cavalier attitude to his tax reporting and court-ordered obligations, and the less than satisfactory state of the evidence needed to reach a fair, reasonable, and principled determination of the parties’ support obligations and rights, particularly those of the father. In no way should this approach be interpreted as critical of Ms. Waldman. She has clearly expended considerable time, energy, and (together with her client) demonstrated great patience in very challenging circumstances. It is my intention to make a final Order in this matter after May 31, 2019, once further evidence is filed.

43The mother’s submissions as to costs shall accompany the affidavit set out in subparagraphs [41] (h) or (i). They shall be limited to three double-spaced pages and filed in the Continuing Record. Offers to Settle, a Bill of Costs, and any authorities upon which the mother may wish to rely, shall be filed separately. The judicial assistant shall be notified when that is done.

44The father should clearly understand that the court will no longer tolerate litigation conduct such as he has demonstrated in these proceedings. He is strongly encouraged to obtain legal advice.

Footnotes

1. 1This was a comprehensive parenting Order made by me on consent of the parties. Paragraph 3 of the Order directed the mother “to seek out and ensure the children attend individual and/or group counselling for children dealing with separation/divorce”.
2. 2The Director’s Statement that accompanied the mother’s material indicated that as of March 12, 2014, there was nothing owing. All of the unpaid support has accrued after April 1, 2014.
3. 3There is no jurisdiction in the court to vary support terms of an Agreement unless the Agreement is filed with the court. The father’s use of the Application procedure was appropriate in this case in light of his request for different terms of access than contained in the Agreement even though his terminology was imprecise.
4. 42018 ONCA 1025.
5. 52017 ONSC 2492 (Div. Ct).
6. 6This figure is net of $15,400 spousal support.
7. 7This does not include the mother’s 2018 UCCB.
8. 8Exhibits JJ to PP of the mother’s affidavit sworn January 25, 2019.
9. 9See fn #2 for the confusion of terminology. The mother is really seeking to set aside a part of the Agreement. No reference was made either in her affidavits or submissions to the test set out in LeVan v. LeVan, 2008 ONCA 388, 90 O.R. (3d) 1.
10. 10See Charron v. Carriere, 2016 ONSC 7523, at para. 49.