Diciaula v. Mastrogiacomo, 2019 ONSC 2823

Case Summary

The respondent sought to change child and spousal support based on his actual income, arguing he had been paying on an imputed income double his actual earnings for 15 years, leading to significant arrears and outstanding costs awards he could not pay. The applicant moved to dismiss or strike the respondent's motion due to his non-compliance with previous court orders, including costs orders. The court balanced the need for compliance with court orders against the primary objective of the Family Law Rules to deal with cases justly, including substantive justice and access to justice. The court found the respondent had made a prima facie case that he had overpaid support and lacked the resources to pay outstanding costs, making it impossible for him to bring a motion to change if payment was a precondition. The applicant's motion to dismiss/strike was dismissed, and the respondent's motion to change was allowed to proceed on terms. interesting_citations_summary: > This decision highlights the court's discretion in balancing the principle of litigant compliance with court orders, particularly costs orders, against the fundamental objectives of the Family Law Rules, including substantive justice and access to justice. It emphasizes that in exceptional circumstances, strict adherence to payment of outstanding costs as a precondition for further litigation may perpetuate injustice and create an insurmountable barrier to justice, especially when a prima facie case of significant overpayment of support is demonstrated. The court also reiterates the judicial responsibility to ensure fair access and equal treatment for self-represented litigants, citing Pintea v. Johns, 2017 SCC 23. final_judgement: > The Applicant's motion to strike, dismiss, or stay the Respondent's Motion to Change was dismissed. The Respondent's Motion to Change was allowed to proceed, with leave granted for the Respondent to file a further Form 14 Affidavit and for the Applicant to file a Form 14A Affidavit in response. The stay from a previous order by Justice Boswell was lifted to allow the Respondent's motion to proceed. The parties were ordered to schedule a Case Conference to timetable remaining steps. winning_degree_applicant: 5 winning_degree_respondent: 1 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2019 decision_number: 2823 file_number: "FS-14-19316-0001" source: "https://www.canlii.org/en/on/onsc/doc/2019/2019onsc2823/2019onsc2823.html" cited_cases: legislation: - title: "Family Law Rules, O. Reg. 114/99" url: "https://www.ontario.ca/laws/regulation/990114" - title: "Child Support Guidelines, O. Reg. 391/97" url: "https://www.ontario.ca/laws/regulation/970391" case_law: - title: "Diciaula v. Mastrogiacomo, 2006 ON SCDC 11928" url: "https://www.canlii.org/en/on/onscdc/doc/2006/2006canlii11928/2006canlii11928.html" - title: "Diciaula v. Mastrogiacomo, 2008 ONSC 29105" url: "https://www.canlii.org/en/on/onsc/doc/2008/2008canlii29105/2008canlii29105.html" - title: "Diciaula v. Mastrogiacomo, 2009 CarswellOnt 1981 (S.C.J.)" - title: "Diciaula v. Mastrogiacomo, 2014 ONSC 6196" url: "https://www.canlii.org/en/on/onsc/doc/2014/2014onsc6196/2014onsc6196.html" - title: "Vetro v. Vetro, 2013 CarswellOnt 5400 (C.A.)" - title: "Biniaminov v. Biniaminov, 2018 CarswellOnt 15253 (SCJ)" - title: "Levely v. Levely, 2013 ONSC 1026, at para. 12" url: "https://www.canlii.org/en/on/onsc/doc/2013/2013onsc1026/2013onsc1026.html#par12" - title: "Peerenboom v. Peerenboom, 2018 ONSC 5796 (Sup Ct)" url: "https://www.canlii.org/en/on/onsc/doc/2018/2018onsc5796/2018onsc5796.html" - title: "Fatahi-Ghandehari v. Wilson, 2018 ONSC 5579" url: "https://www.canlii.org/en/on/onsc/doc/2018/2018onsc5579/2018onsc5579.html" - title: "Moran v. Cunningham, 2009 CarswellOnt 3974 (Sup Ct)" - title: "Van v. Palombi, 2017 ONSC 2492 (Div Ct)" url: "https://www.canlii.org/en/on/onscdc/doc/2017/2017onsc2492/2017onsc2492.html" - title: "Pintea v. Johns, 2017 SCC 23, [2017] 1 S.C.R. 470" url: "https://www.canlii.org/en/ca/scc/doc/2017/2017scc23/2017scc23.html" keywords: - Family Law - Motion to Change - Child Support - Spousal Support - Imputed Income - Arrears - Costs Orders - Access to Justice - Self-represented Litigant - Family Law Rules areas_of_law: - Family Law - Civil Procedure --- # Court File and Parties **COURT FILE NO.:** FS-14-19316-0001 **DATE:** 20190506 **SUPERIOR COURT OF JUSTICE - ONTARIO** **RE:** Andreina Diciaula, Applicant **AND:** Giuseppe (Joe) Mastrogiacomo, Respondent **BEFORE:** Madam Justice Kristjanson **COUNSEL:** Lorna Yates, for the Applicant Mr. Mastrogiacomo, Self-represented **HEARD:** April 2, 2019 --- # Endorsement [1] The Respondent, Giuseppe (Joe) Mastrogiacomo, has brought a motion to change child and spousal support based on his actual, not imputed, income, to terminate spousal support, and to terminate child support when the children finish their first post-secondary degree. Joe and the Applicant, Andreina Di Ciaula, separated in 2001. Since 2004, Joe has been paying child and spousal support based on an imputed income of $90,000. This is double what Joe asserts he actually earned as a T4 employee between 2004 and 2018, as set out in his tax returns and notices of assessment. The Family Responsibility Office (FRO) is enforcing arrears of $137,962.21, and there are outstanding costs awards of over $50,000.00 (some of which are being enforced by FRO). Joe argues, essentially, that he is caught in a Catch-22: for 15 years he has been paying support on an imputed income which is double what he earns; his income is garnished at 50% and he has no assets; and he cannot pay the outstanding costs awards and thus bring a motion to change so long as this continues. [2] Andreina has brought a motion to dismiss or strike Joe’s motion to change as he is in breach of numerous court orders, including costs orders. She argues that persistent disregard of the court’s processes should result in the striking of Joe’s motion to change. In the alternative, Andreina argues that the motion to change should be stayed until Joe has complied with the final court order and the outstanding costs orders, as to allow otherwise would constitute an abuse of process. [3] The Family Law Rules have as their primary objective to deal with cases justly, including by ensuring that the process is fair to all parties, and cases are dealt with expeditiously, cost-effectively, and proportionately. Compliance with court orders, including cost orders, is an essential part of the family justice system, and courts will generally not allow a litigant to take a next step without paying overdue costs awards. That said, justice and fairness cannot be achieved without a firm foothold in reality. Requiring the payment of all costs orders before addressing the motion to change means, effectively, that Joe will never be able to bring a motion to change despite the claim by Joe that in the last 15 years, he has never earned the imputed income upon which the underlying orders are based. On the record before me, there is a concern that Joe may have overpaid child and spousal support by a significant amount. [4] Requiring all outstanding costs orders to be paid before a party can take another step in litigation is generally just – it ensures that parties live up to their obligations and comply with orders, which is essential to the justice system. That is the interest that Andreina seeks to protect. On the other hand, Joe argues that fifteen years of paying child support on the basis of an income which is twice what a person earns is substantively unjust, has interfered with his ability to pay outstanding costs awards, and must be taken into account in the exercise of discretion. [5] The goal is to strike a balance between the competing interests advanced before me. In the exceptional case – and this is one – insistence on payment of all outstanding costs awards before a motion to change can be brought risks perpetuating an injustice, constitutes a barrier to access to justice, and presents a risk to the proper administration of justice. I have considered relative prejudice, and that Joe has established a prima facie case that the motion to change is potentially meritorious. I also consider the length of time – 15 years of paying child support on an imputed income which is twice what Joe says he has made. I consider the lack of assets, and the lack of credit, and find that Joe will never be able to pay the outstanding costs orders and arrears. I find that in these circumstances, it is in keeping with the primary objective of dealing with cases justly to allow Joe to proceed with the motion to change, as no other procedure is available to Joe that would afford meaningful redress. [6] In order to deal with this case justly, I exercise my discretion to allow Joe to proceed to argue his motion to change on terms as set out below. # Issues (1) Should Joe’s motion to change be dismissed, struck or stayed on the grounds that he has failed to comply with court orders, including costs orders? (2) If not, what terms should apply? # Facts [7] In 2001, the parties separated after three years of marriage. They have two children, born in 1997 and 1998. AB is finishing an undergraduate degree in April, 2019; CD is in her third year. [8] Joe’s pleadings were struck in 2003 for failure to make financial disclosure. Andreina obtained a final order for child and spousal support in 2004 following an uncontested trial at which Joe’s income was imputed at $90,000. Spousal support was set at $660 per month, and child support at $1,136 per month. Costs were fixed at $15,700.00, enforceable as an incident of support by FRO. ## Key Litigation Following the Undefended Trial [9] Joe sought to set aside the final order in 2005. Justice Timms set aside the final order in its totality, reinstated Joe’s pleadings, and set child support based on Joe’s stated income. Justice Timms’ order was set aside by the Divisional Court on appeal in 2006 on jurisdictional grounds, and the final order was restored: [Diciaula v. Mastrogiacomo, 2006 ON SCDC 11928](https://www.canlii.org/en/on/onscdc/doc/2006/2006canlii11928/2006canlii11928.html). At that time, the Divisional Court suggested that rather than moving to set aside the striking of pleadings or the 2004 final order, Joe should seek to vary the order on the grounds of material change. The Divisional Court held “because the final order is based on imputed income, a motion to vary in which he makes the full and candid and complete disclosure which he has to date been reluctant or unable to make is available to him”: para. 19. The Divisional Court awarded costs of $12,500, enforceable as an incident of support by FRO. [10] In 2007, Joe brought a motion to change the access provisions in the 2004 final order. Andreina brought a motion to strike, stay or dismiss the motion to change the access provisions on the basis of his default on support payments, and she argued that Joe should not be given a hearing until his defaults were cured. The 2007 access motion to change was stayed by Justice Boswell in 2008: [Diciaula v. Mastrogiacomo, 2008 ONSC 29105](https://www.canlii.org/en/on/onsc/doc/2008/2008canlii29105/2008canlii29105.html). Justice Boswell found Joe was in substantial default of a number of court orders, including significant costs orders, holding at para. 17 that: > Until the Respondent has committed himself to complying with the outstanding judgments against him, he should not be free to continue to inflict litigation expenses on the Applicant. That said, the Respondent has dug himself a significant hole. It may take him a significant period of time to dig himself back out. At some point, should he be able to demonstrate that he is making a concerted and genuine effort to comply with the outstanding court orders against him…he should be at liberty to pursue expanded access. [11] Joe’s 2007 access motion to change was stayed on conditions including that Joe develop a “reasonable and workable plan for the repayment of outstanding arrears and costs”, and pay costs of the motion of $5,000.00. Joe did not meet these conditions. [12] Joe brought a new motion to change in 2008, this time to vary the child and spousal support provisions of the final order, and to rescind and expunge arrears. Justice Boswell found that Joe had failed to comply with the conditions set on the motion to change access, and he dismissed the 2007 motion to change access. Justice Boswell stayed the 2008 support motion to change pending payment of outstanding costs awards: Diciaula v. Mastrogiacomo, 2009 CarswellOnt 1981 (S.C.J.), and set costs at $6,500, which included the $5,000 ordered on the 2007 access motion to change. [13] In 2009, Justice Gilmore heard a default hearing brought by the Director, FRO, and made an order incarcerating Joe but staying the warrant of committal as long as Joe paid $500 per month towards arrears. Costs were set at $1,500. Joe’s income continues to be garnished by FRO, presumably including a payment towards arrears. [14] In 2013, Joe brought a second motion to change child and spousal support. Justice Perell, in [Diciaula v. Mastrogiacomo, 2014 ONSC 6196](https://www.canlii.org/en/on/onsc/doc/2014/2014onsc6196/2014onsc6196.html), struck Joe’s support motion to change. Justice Perell held that Joe was “seriously in arrears of support payments” and “in default of paying several costs awards”, and that since Joe had not paid the costs awards ordered by the Divisional Court and by Justice Boswell, “to allow the current Rule 15 Motion to proceed would be an abuse of process.” Justice Perell held that Joe “should have moved to lift the stay of Justice Boswell’s Order, or he should have complied with the Order, which he has failed to do”: para. 41. Justice Perell and ordered costs of $11,719.02. [15] Joe appealed to the Court of Appeal; the appeal was not perfected, and was dismissed with costs of $750.00. [16] Joe then initiated this motion to change in Newmarket in 2018. However, the file had been traversed to Toronto in 2014. As a result, Justice Kaufman directed that this motion to change be traversed to Toronto, and ordered Joe to pay costs of $1,118.70. [17] In this motion to change, Joe seeks: * Child support going forward be set at $614 per month in accordance with his salary of $60,000, * Child support cease once each child finishes an undergraduate degree; * Retroactive adjustment to child support as of January 1, 2010 based on his actual income, including an adjustment to arrears of $61,332, * Retroactive termination of spousal support as of December 31, 2009, * FRO garnishment be set at 35% not 50% of income. ## Outstanding Costs Awards [18] Joe has not paid any costs awards since 2004, although some of the awards are being enforced by FRO as an incident of support. The outstanding costs awards total $50,287.72 (not including interest), of which $29,700 costs are being enforced by FRO as an incident of support: * 2004 Final Order – Undefended Trial: Costs of $15,700 plus interest (4%; enforced by FRO) * March, 2005 adjournment motion: Costs of $500 plus interest (4%) * Divisional Court 2006: Costs of $12,500 plus interest (5%; enforced by FRO) * 2008/2009 Justice Boswell Order: $6,500 plus interest (4%) * 2009 Justice Gilmore Order: $1,500 in favour of Director, FRO (enforced by FRO) * 2014 Justice Perell Order: $11,719.02 plus interest (3%) * 2015 Court of Appeal: $750.00 * 2018 Justice Kaufman Transfer Order: $1,118.70 plus interest (3%). ## Joe’s Income [19] FRO has been enforcing the 2004 order based on imputed income of $90,000. Joe has been an employee since 2004. His returns show employment income and some employment insurance income during periods of unemployment. Joe’s actual income for these years, based on CRA Notices of Assessment and pay stubs in the record, has been: * 2004: $42,433 * 2005: $48,230 * 2006: $52,499 * 2007: $55,199 * 2008: $52,199 * 2009: $46,176 * 2010: $48,600 * 2011: $54,760 * 2012: $41,823 * 2013: $28,882 * 2014: $5,511 * 2015: $14,538.51 * 2016: $42,000 * 2017: $42,000 * 2018: $60,000 (as of August, 2018, based on employment contract) [20] In her affidavit, Andreina states that Joe “has made no effort to pay down the arrears or costs”, although she acknowledges that FRO has garnished 50% of Joe’s pay from November, 2004 to present. [21] Andreina asserts that: (a) Joe is underemployed, (b) he has recently changed his employment which occurs frequently, often when the FRO begins enforcement actions, and (c) Joe has “historically colluded with his employer to reduce his declared income for support purposes.” This will all be determined on evidence on the motion to change. On this motion to strike, I place no weight on the bald allegation that Joe has “colluded” with various employers over 14 years, to understate income, and simply note that this would require evidence on the motion to change rather than the bald allegations in this record. Whether Joe is intentionally underemployed has not been established on this motion, but would be an issue on the motion to change, to be established on the basis of evidence. [22] Joe’s income tax returns, notices of assessment and affidavit establish on this motion a lengthy and relatively consistent income history over 15 years, aside from a period of employment between 2013 and 2015. Joe’s employment contract with his new employer as of August, 2018 is in the materials, and shows full time employment income of $60,000. Based on the record on this 2019 motion, Joe’s income has been about half of the imputed income of $90,000 since 2004. [23] Motions to change may have retroactive effect, and arrears may be reduced on a motion to change. Based on his income, Joe estimates he has overpaid child support by $84,863 since 2004, and by $61,332 since 2010 alone. If that were established on a motion to change, then Joe would have the ability to pay all outstanding costs orders. ## Joe and Andreina: Summary of Finances [24] Joe drives a 2006 car, and has no savings. His income increased in August, 2018 from his previous job of $42,000 to $60,000, a substantial increase. After tax, he takes home $3,775.58 per month, of which $1,796 per month is garnished by FRO to pay for his support arrears. He pays rent of $550 per month; keeps up life insurance; and has very modest expenses. In addition to the FRO arrears, he owes personal loans of $53,800 to family and a friend relating to past legal fees. He has asked and cannot borrow further funds from friends and family. He has filed a credit report showing FRO arrears of $135,704, and his evidence is that institutional lenders will not loan him any funds because of these arrears. [25] Andreina’s income was slightly higher than Joe’s in 2016 ($43,509) and 2017 ($42,659), and will be lower than Joe’s in 2018. Andreina contributes to the OMERS pension plan, which was not valued on her financial statement. She drives a 2013 car, and does not have savings. She owes personal loans of $64,000 to family. Andreina made a consumer proposal in Spring, 2014, and does not have access to credit as a result. ## The Children: Table Support [26] AB will complete his undergraduate degree by May, 2019. CD is in the third year of a four year undergraduate program. In the motion to change, Joe seeks to terminate his child support obligations for each child upon completion of an undergraduate degree. [27] In her factum, Andreina states that “both children are living away from home.” Given that there is a motion to change, whether full residential child support was or remains payable is an open question, and Andreina should clarify the residential status of the children for the previous four years, and CD’s anticipated residential status for 2019-2020. ## Conclusion [28] On the record before me, I find that: * Joe has made out a prima facie case that since 2004, he has never made the level of income imputed to him; * The parties had a three year marriage, and the spousal support obligation has continued for 16 years; * Joe has made out a prima facie case that he does not have the assets or resources to discharge the outstanding costs orders before bringing a motion to change, that he is unable to borrow from friends and family, and that he is unable to borrow from institutional lenders because of the FRO arrears noted on his credit report; * I find that there is no reasonable prospect that Joe will be able to pay the outstanding costs orders, and as a result, no reasonable prospect that he will be able to bring a motion to change if payment of outstanding costs orders is a pre-condition. # Analysis ## Should the motion be dismissed due to the Father’s failure to comply with Court Orders? [29] Andreina argues that the motion should be dismissed due to Joe’s failure to comply with court orders; he is in arrears of $137,962.21, and owes costs of $50,287.72 (some of which are included in the arrears). Andreina quite rightly submits that non-compliance with court orders is not an acceptable litigation strategy, and that the [Family Law Rules](https://www.ontario.ca/laws/regulation/990114) specifically contemplate sanctions for such non-compliance in Rules 1(8) through (8.4). In addition, the Court has the inherent jurisdiction to control its own processes. Joe’s non-compliance with the Orders is clear. She submits that Justice Boswell and Justice Perell had all of the relevant information about Joe’s income, and he advanced the same claims regarding inability to pay. [30] Andreina relies on clear jurisprudence in the Court of Appeal and at this court that persistent non-compliance with court orders will generally result in the striking of pleadings, although she acknowledges that the remedy is discretionary: Vetro v. Vetro, 2013 CarswellOnt 5400 (C.A.); Biniaminov v. Biniaminov, 2018 CarswellOnt 15253 (SCJ). [31] I agree generally with Justice Chappel in [Levely v. Levely, 2013 ONSC 1026, at para. 12](https://www.canlii.org/en/on/onsc/doc/2013/2013onsc1026/2013onsc1026.html#par12), that family court proceedings should not become “a destructive tool which one party wields and manipulates in order to create further financial and emotional hardship for the other party,” and lamenting the “futile money pit of failed justice.” [32] Andreina cites clear authority that the ability to pay costs is only relevant upon the making of the order, not when compliance is in issue, and that “impecuniosity is not a defence to an application to strike pleadings based on a failure to honour court orders”: [Peerenboom v. Peerenboom, 2018 ONSC 5796 (Sup Ct)](https://www.canlii.org/en/on/onsc/doc/2018/2018onsc5796/2018onsc5796.html); [Fatahi-Ghandehari v. Wilson, 2018 ONSC 5579](https://www.canlii.org/en/on/onsc/doc/2018/2018onsc5579/2018onsc5579.html), Moran v. Cunningham, 2009 CarswellOnt 3974 (Sup Ct); [Van v. Palombi, 2017 ONSC 2492 (Div Ct)](https://www.canlii.org/en/on/onscdc/doc/2017/2017onsc2492/2017onsc2492.html). [33] At the same time there are countervailing factors, including the primary objective of the [Family Law Rules](https://www.ontario.ca/laws/regulation/990114), which is to deal with cases justly. In part, this objective is met by ensuring that the process is fair to all parties and cases are dealt with expeditiously, cost-effectively, and proportionately. But dealing with a case justly also encompasses substantive justice – a just outcome, in which those similarly situated are treated similarly. The [Child Support Guidelines](https://www.ontario.ca/laws/regulation/970391) seek to establish a substantively just outcome by setting child support payments based on income. Under the 2017 Child Support Guidelines, Ontario payors earning $90,000 annually pay $1,351.00 monthly for two children, while payors earning $42,000 (as Joe states he did in 2017) pay child support of $624.00 per month. At some point, paying child support on the basis of an income which is twice what a person earns becomes substantively unjust, and must be taken into account in the exercise of discretion. [34] Compliance with court orders, including cost orders, is an essential part of the family justice system, and courts will generally not allow a litigant to take a next step without paying overdue costs awards. That said, justice and fairness cannot be achieved without a firm foothold in reality. Requiring the payment of all costs orders before addressing the motion to change means, effectively, that Joe will never be able to bring a motion to change despite the claim by Joe that he has not ever earned the imputed income upon which the underlying orders are based. If support had been based on his income, Joe argues he would have had more than enough resources to pay all outstanding costs orders. [35] Requiring all outstanding costs orders to be paid before a party can take another step in litigation is generally just – it ensures that parties live up to their obligations and comply with orders, which is essential to the justice system. That is the interest that Andreina seeks to protect. On the other hand, Joe argues that fifteen years of paying child support on the basis of an income which is twice what a person earns is substantively unjust, has interfered with his ability to pay outstanding costs awards, and must be taken into account in the exercise of discretion. [36] The goal is to strike a balance between the competing interests advanced before me. In the exceptional case – and this is one – insistence on payment of all outstanding costs awards before a motion to change can be brought risks perpetuating an injustice, constitutes a barrier to access to justice, and presents a risk to the proper administration of justice. I have considered relative prejudice, and that Joe has established a prima facie case that the motion to change is potentially meritorious. I also consider the length of time – 15 years of paying child support on an imputed income which is twice what Joe says he has made. I consider the lack of assets, and the lack of credit, and find that Joe will never be able to pay the outstanding costs orders and arrears. I find that in these circumstances, it is in keeping with the primary objective of dealing with cases justly to allow Joe to proceed with the motion to change, as no other procedure is available to Joe that would afford meaningful redress. [37] On the evidence before me, Joe has made a prima facie case based on income tax returns and notices of assessment that he has overpaid child and spousal support by a significant amount for 14 years, and that he does not have assets to pay the outstanding costs orders nor access to credit given the size of the outstanding arrears and the continuing garnishment by FRO. I exercise my discretion to allow Joe to proceed to argue his motion to change on terms as set out below. ## Should the motion be dismissed on its merits? [38] Andreina also argues that the motion should be dismissed on its merits, arguing that Joe has the ability to pay retroactive and ongoing child, spousal support and costs orders, and simply refuses to do so. [39] On the record before me, given the CRA Notices of Assessment and Joe’s most recent employment contract, as well as Joe’s financial statement, I do not find that the “outcome of the father’s motion to change is a foregone conclusion,” as argued by Andreina. Rather, Joe has made out a prima facie case that his income is not at the level imputed to him in 2004. He has made out a prima facie case that he does not currently have the ability to pay retroactive and ongoing child, spousal support and costs orders, he has no assets, and is unable to obtain loans from institutional lenders because of the size of the outstanding FRO arrears. He has also given evidence that he owes money to friends and family, and has asked and is unable to borrow from friends and family. Given Joe’s income, the arrears, and the 50% garnishment by FRO, the reality is that Joe will never be able to pay those orders. If Joe is able to establish that there has been a material change in income, this could constitute a material change which could reduce arrears owing, and create the financial ability to pay the costs orders. [40] Andreina also argues that Joe is attempting to circumvent Justice Boswell’s 2009 Order staying the 2008 motion to change by bringing a fresh motion to change, and the 2013 motion to change was struck until Joe complied with the 2009 Order of Justice Boswell or sought to lift the stay. She I do not find that Joe is seeking to circumvent the order of Justice Boswell on the 2008 motion to change. Joe does not seek to rescind his obligation to pay the outstanding costs orders; rather, he seeks to restructure the financial obligations he asserts are based on an unfair imputed income order, so that he has the financial ability to discharge his costs obligations and pay support obligations that should be owed. He has brought a motion to change child support as of January 1, 2010. The 2008 motion before Justice Boswell dealt with child support prior to that time. Joe has brought a motion to terminate spousal support as of December 31, 2009, which post-dates Justice Boswell’s order. [41] In 2013, Justice Perell identified that the proper route would have been to seek to lift Justice Boswell’s stay. I am not sure that this is necessary, since the March 25, 2009 Order of Justice Boswell, paragraph 2, provides: “The Respondent’s Motion to Change dated October 31, 2008 (support) is stayed pending payment of the outstanding costs awards, pursuant to Rule 14(23) of the [Family Law Rules](https://www.ontario.ca/laws/regulation/990114).” As I read it, the stay only applies to the 2008 motion to change, but I appreciate that this is a complicated concept for a self-represented litigant. If necessary, I find that this relief is implicit in the motion to change brought by Joe, and lift the stay set out in para. 2 of the March 25, 2009 Order to allow Joe to argue his 2018 Motion to Change, which seeks relief in the period December 31, 2009 following. # Additional Procedural Issue [42] The Confirmation of Motion filed by Andreina referred to materials relied on by her in the previous 2014 Motion to Change Record, and contained a notation that “The Mother references materials in her Notice of Motion that are found in the Continuing Record but that the Court does not necessarily need to review prior to the hearing of the long motion.” The Confirmation states that the materials would be provided on a USB stick. On the return date, no USB stick was provided to the Respondent and there was no laptop in the Court. As a result, I ordered and reviewed the additional documents from the 2014 Motion which were referred to in the Applicant’s Confirmation of Motion, as well as Continuing Record, Volume 19, Tab 2, which the Applicant handed up. # Self-Represented Litigant [43] Joe is a self-represented litigant. Judges have a responsibility to ensure that self-represented persons are provided with fair access and equal treatment by the courts, and to facilitate access to justice. [44] In [Pintea v. Johns, 2017 SCC 23, [2017] 1 S.C.R. 470](https://www.canlii.org/en/ca/scc/doc/2017/2017scc23/2017scc23.html), the Supreme Court of Canada endorsed the Canadian Judicial Council's Statement of Principles on Self-Represented Litigants and Accused Persons (2006), which include the statements that: 1. Judges have a responsibility to inquire whether self-represented persons are aware of their procedural options, and to direct them to available information if they are not. Depending on the circumstances and nature of the case, judges may explain the relevant law in the case and its implications, before the self-represented person makes critical choices. 2. In appropriate circumstances, judges should consider providing self-represented persons with information to assist them in understanding and asserting their rights, or to raise arguments before the court. 3. Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented parties. [45] In light of these principles, I am advising Joe that all information which he believes is relevant and important to the motion to change argument must be set out in an affidavit. At the hearing of the motion, Joe attempted to provide additional information, including that he is not qualified as a Chartered Accountant, and that he has had three employers since 2004. I told Joe that I could not take into consideration anything not contained in an affidavit in the Continuing Record, and I have not considered any information not contained in the affidavit evidence on this motion. Therefore, I am advising Joe that he must carefully consider all relevant information, and include this evidence in a Form 14 Affidavit. I give Joe leave to file a Form 14 affidavit containing supplementary information. [46] Neither party filed the most recent Director’s Statement of Arrears from the Family Responsibility Office. Joe is to file the updated Statement of Arrears from the Family Responsibility Office with his Form 14 Affidavit. [47] I also refer Joe to important sources of legal information about how to bring and respond to a motion to change in family law. These include: * The “Guide to Process for Family Cases at the Superior Court of Justice”, at [http://www.ontariocourts.ca/scj/news/publications/guide-family/](http://www.ontariocourts.ca/scj/news/publications/guide-family/) * Additional resources on the Superior Court of Justice Website at [http://www.ontariocourts.ca/scj/family/resources/](http://www.ontariocourts.ca/scj/family/resources/) * Additional resources available in person at the Family Law Information Centre at 393 University Avenue, 9th Floor * Case and statutes available for free at [https://www.canlii.org](https://www.canlii.org) # Costs [48] Although Joe is the successful party, in light of unpaid costs orders, I am not ordering Andreina to pay costs of this motion. # Order and Terms [49] Order to go as follows: 1. The Applicant’s motion to strike, dismiss or stay the Motion to Change is dismissed, and the Respondent’s Motion to Change is to proceed; 2. If necessary, the stay set out in the March 25, 2009 Order of Justice Boswell, paragraph 2, is lifted for the purpose of allowing the Respondent to proceed with his Motion to Change. 3. The Respondent is given leave to file a further Form 14 Affidavit on the Motion to Change no later than May 31, which should include all information that he intends to rely on in the Motion to Change, including the most recent Director’s Statement of Arrears from the Family Responsibility Office. 4. The Applicant has leave to file a further Form 14A Affidavit in response, by June 21, 2019. 5. The Applicant is to advise the Respondent by letter or e-mail as to the residential status of the two children for the past four years (if either of them have resided away from home in this period, and the dates) by May 14, 2019. 6. After conferring on dates, the parties are to schedule a Case Conference on a mutually agreeable date which is to be no later than July 15, to timetable all remaining steps needed to schedule argument on the motion to change. The parties do not have to file Case Conference Briefs, but they must each file a proposed timetable of necessary steps, with dates, to take them to argument on this Motion to Change before the end of December, 2019, together with a list of all orders being sought at the Case Conference. The Applicant is to file this Endorsement for the Case Conference. 7. Counsel for the Applicant is to take out the Order, and approval of the Respondent to the form and content of the Order is dispensed with. Justice Kristjanson Date: May 6, 2019

citation: "Diciaula v. Mastrogiacomo, 2019 ONSC 2823" parties: "Andreina Diciaula v. Giuseppe (Joe) Mastrogiacomo" party_moving: "Andreina Diciaula" party_responding: "Giuseppe (Joe) Mastrogiacomo" court: "Superior Court of Justice" court_abbreviation: "ONSC" jurisdiction: "Ontario" case_type: "motion to change" date_judgement: "2019-05-06" date_heard: "2019-04-02" applicant:

"Andreina Diciaula" applicant_counsel:
"Lorna Yates" respondent:
"Giuseppe (Joe) Mastrogiacomo" respondent_counsel: "Self-represented" judge: "Kristjanson" summary: > The respondent sought to change child and spousal support based on his actual income, arguing he had been paying on an imputed income double his actual earnings for 15 years, leading to significant arrears and outstanding costs awards he could not pay. The applicant moved to dismiss or strike the respondent's motion due to his non-compliance with previous court orders, including costs orders. The court balanced the need for compliance with court orders against the primary objective of the Family Law Rules to deal with cases justly, including substantive justice and access to justice. The court found the respondent had made a prima facie case that he had overpaid support and lacked the resources to pay outstanding costs, making it impossible for him to bring a motion to change if payment was a precondition. The applicant's motion to dismiss/strike was dismissed, and the respondent's motion to change was allowed to proceed on terms. interesting_citations_summary: > This decision highlights the court's discretion in balancing the principle of litigant compliance with court orders, particularly costs orders, against the fundamental objectives of the Family Law Rules, including substantive justice and access to justice. It emphasizes that in exceptional circumstances, strict adherence to payment of outstanding costs as a precondition for further litigation may perpetuate injustice and create an insurmountable barrier to justice, especially when a prima facie case of significant overpayment of support is demonstrated. The court also reiterates the judicial responsibility to ensure fair access and equal treatment for self-represented litigants, citing Pintea v. Johns, 2017 SCC 23. final_judgement: > The Applicant's motion to strike, dismiss, or stay the Respondent's Motion to Change was dismissed. The Respondent's Motion to Change was allowed to proceed, with leave granted for the Respondent to file a further Form 14 Affidavit and for the Applicant to file a Form 14A Affidavit in response. The stay from a previous order by Justice Boswell was lifted to allow the Respondent's motion to proceed. The parties were ordered to schedule a Case Conference to timetable remaining steps. winning_degree_applicant: 5 winning_degree_respondent: 1 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2019 decision_number: 2823 file_number: "FS-14-19316-0001" source: "https://www.canlii.org/en/on/onsc/doc/2019/2019onsc2823/2019onsc2823.html" cited_cases: legislation:
- title: "Family Law Rules, O. Reg. 114/99" url: "https://www.ontario.ca/laws/regulation/990114"
- title: "Child Support Guidelines, O. Reg. 391/97" url: "https://www.ontario.ca/laws/regulation/970391" case_law:
- title: "Diciaula v. Mastrogiacomo, 2006 ON SCDC 11928" url: "https://www.canlii.org/en/on/onscdc/doc/2006/2006canlii11928/2006canlii11928.html"
- title: "Diciaula v. Mastrogiacomo, 2008 ONSC 29105" url: "https://www.canlii.org/en/on/onsc/doc/2008/2008canlii29105/2008canlii29105.html"
- title: "Diciaula v. Mastrogiacomo, 2009 CarswellOnt 1981 (S.C.J.)"
- title: "Diciaula v. Mastrogiacomo, 2014 ONSC 6196" url: "https://www.canlii.org/en/on/onsc/doc/2014/2014onsc6196/2014onsc6196.html"
- title: "Vetro v. Vetro, 2013 CarswellOnt 5400 (C.A.)"
- title: "Biniaminov v. Biniaminov, 2018 CarswellOnt 15253 (SCJ)"
- title: "Levely v. Levely, 2013 ONSC 1026, at para. 12" url: "https://www.canlii.org/en/on/onsc/doc/2013/2013onsc1026/2013onsc1026.html#par12"
- title: "Peerenboom v. Peerenboom, 2018 ONSC 5796 (Sup Ct)" url: "https://www.canlii.org/en/on/onsc/doc/2018/2018onsc5796/2018onsc5796.html"
- title: "Fatahi-Ghandehari v. Wilson, 2018 ONSC 5579" url: "https://www.canlii.org/en/on/onsc/doc/2018/2018onsc5579/2018onsc5579.html"
- title: "Moran v. Cunningham, 2009 CarswellOnt 3974 (Sup Ct)"
- title: "Van v. Palombi, 2017 ONSC 2492 (Div Ct)" url: "https://www.canlii.org/en/on/onscdc/doc/2017/2017onsc2492/2017onsc2492.html"
- title: "Pintea v. Johns, 2017 SCC 23, [2017] 1 S.C.R. 470" url: "https://www.canlii.org/en/ca/scc/doc/2017/2017scc23/2017scc23.html" keywords:
Family Law
Motion to Change
Child Support
Spousal Support
Imputed Income
Arrears
Costs Orders
Access to Justice
Self-represented Litigant
Family Law Rules areas_of_law:
Family Law
Civil Procedure

Court File and Parties

COURT FILE NO.: FS-14-19316-0001 DATE: 20190506 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Andreina Diciaula, Applicant AND: Giuseppe (Joe) Mastrogiacomo, Respondent

BEFORE: Madam Justice Kristjanson

COUNSEL: Lorna Yates, for the Applicant Mr. Mastrogiacomo, Self-represented

HEARD: April 2, 2019

Endorsement

[1] The Respondent, Giuseppe (Joe) Mastrogiacomo, has brought a motion to change child and spousal support based on his actual, not imputed, income, to terminate spousal support, and to terminate child support when the children finish their first post-secondary degree. Joe and the Applicant, Andreina Di Ciaula, separated in 2001. Since 2004, Joe has been paying child and spousal support based on an imputed income of $90,000. This is double what Joe asserts he actually earned as a T4 employee between 2004 and 2018, as set out in his tax returns and notices of assessment. The Family Responsibility Office (FRO) is enforcing arrears of $137,962.21, and there are outstanding costs awards of over $50,000.00 (some of which are being enforced by FRO). Joe argues, essentially, that he is caught in a Catch-22: for 15 years he has been paying support on an imputed income which is double what he earns; his income is garnished at 50% and he has no assets; and he cannot pay the outstanding costs awards and thus bring a motion to change so long as this continues.

[2] Andreina has brought a motion to dismiss or strike Joe’s motion to change as he is in breach of numerous court orders, including costs orders. She argues that persistent disregard of the court’s processes should result in the striking of Joe’s motion to change. In the alternative, Andreina argues that the motion to change should be stayed until Joe has complied with the final court order and the outstanding costs orders, as to allow otherwise would constitute an abuse of process.

[3] The Family Law Rules have as their primary objective to deal with cases justly, including by ensuring that the process is fair to all parties, and cases are dealt with expeditiously, cost-effectively, and proportionately. Compliance with court orders, including cost orders, is an essential part of the family justice system, and courts will generally not allow a litigant to take a next step without paying overdue costs awards. That said, justice and fairness cannot be achieved without a firm foothold in reality. Requiring the payment of all costs orders before addressing the motion to change means, effectively, that Joe will never be able to bring a motion to change despite the claim by Joe that in the last 15 years, he has never earned the imputed income upon which the underlying orders are based. On the record before me, there is a concern that Joe may have overpaid child and spousal support by a significant amount.

[4] Requiring all outstanding costs orders to be paid before a party can take another step in litigation is generally just – it ensures that parties live up to their obligations and comply with orders, which is essential to the justice system. That is the interest that Andreina seeks to protect. On the other hand, Joe argues that fifteen years of paying child support on the basis of an income which is twice what a person earns is substantively unjust, has interfered with his ability to pay outstanding costs awards, and must be taken into account in the exercise of discretion.

[5] The goal is to strike a balance between the competing interests advanced before me. In the exceptional case – and this is one – insistence on payment of all outstanding costs awards before a motion to change can be brought risks perpetuating an injustice, constitutes a barrier to access to justice, and presents a risk to the proper administration of justice. I have considered relative prejudice, and that Joe has established a prima facie case that the motion to change is potentially meritorious. I also consider the length of time – 15 years of paying child support on an imputed income which is twice what Joe says he has made. I consider the lack of assets, and the lack of credit, and find that Joe will never be able to pay the outstanding costs orders and arrears. I find that in these circumstances, it is in keeping with the primary objective of dealing with cases justly to allow Joe to proceed with the motion to change, as no other procedure is available to Joe that would afford meaningful redress.

[6] In order to deal with this case justly, I exercise my discretion to allow Joe to proceed to argue his motion to change on terms as set out below.

Issues

(1) Should Joe’s motion to change be dismissed, struck or stayed on the grounds that he has failed to comply with court orders, including costs orders? (2) If not, what terms should apply?

Facts

[7] In 2001, the parties separated after three years of marriage. They have two children, born in 1997 and 1998. AB is finishing an undergraduate degree in April, 2019; CD is in her third year.

[8] Joe’s pleadings were struck in 2003 for failure to make financial disclosure. Andreina obtained a final order for child and spousal support in 2004 following an uncontested trial at which Joe’s income was imputed at $90,000. Spousal support was set at $660 per month, and child support at $1,136 per month. Costs were fixed at $15,700.00, enforceable as an incident of support by FRO.

Key Litigation Following the Undefended Trial

[9] Joe sought to set aside the final order in 2005. Justice Timms set aside the final order in its totality, reinstated Joe’s pleadings, and set child support based on Joe’s stated income. Justice Timms’ order was set aside by the Divisional Court on appeal in 2006 on jurisdictional grounds, and the final order was restored: Diciaula v. Mastrogiacomo, 2006 ON SCDC 11928. At that time, the Divisional Court suggested that rather than moving to set aside the striking of pleadings or the 2004 final order, Joe should seek to vary the order on the grounds of material change. The Divisional Court held “because the final order is based on imputed income, a motion to vary in which he makes the full and candid and complete disclosure which he has to date been reluctant or unable to make is available to him”: para. 19. The Divisional Court awarded costs of $12,500, enforceable as an incident of support by FRO.

[10] In 2007, Joe brought a motion to change the access provisions in the 2004 final order. Andreina brought a motion to strike, stay or dismiss the motion to change the access provisions on the basis of his default on support payments, and she argued that Joe should not be given a hearing until his defaults were cured. The 2007 access motion to change was stayed by Justice Boswell in 2008: Diciaula v. Mastrogiacomo, 2008 ONSC 29105. Justice Boswell found Joe was in substantial default of a number of court orders, including significant costs orders, holding at para. 17 that:

Until the Respondent has committed himself to complying with the outstanding judgments against him, he should not be free to continue to inflict litigation expenses on the Applicant. That said, the Respondent has dug himself a significant hole. It may take him a significant period of time to dig himself back out. At some point, should he be able to demonstrate that he is making a concerted and genuine effort to comply with the outstanding court orders against him…he should be at liberty to pursue expanded access.

[11] Joe’s 2007 access motion to change was stayed on conditions including that Joe develop a “reasonable and workable plan for the repayment of outstanding arrears and costs”, and pay costs of the motion of $5,000.00. Joe did not meet these conditions.

[12] Joe brought a new motion to change in 2008, this time to vary the child and spousal support provisions of the final order, and to rescind and expunge arrears. Justice Boswell found that Joe had failed to comply with the conditions set on the motion to change access, and he dismissed the 2007 motion to change access. Justice Boswell stayed the 2008 support motion to change pending payment of outstanding costs awards: Diciaula v. Mastrogiacomo, 2009 CarswellOnt 1981 (S.C.J.), and set costs at $6,500, which included the $5,000 ordered on the 2007 access motion to change.

[13] In 2009, Justice Gilmore heard a default hearing brought by the Director, FRO, and made an order incarcerating Joe but staying the warrant of committal as long as Joe paid $500 per month towards arrears. Costs were set at $1,500. Joe’s income continues to be garnished by FRO, presumably including a payment towards arrears.

[14] In 2013, Joe brought a second motion to change child and spousal support. Justice Perell, in Diciaula v. Mastrogiacomo, 2014 ONSC 6196, struck Joe’s support motion to change. Justice Perell held that Joe was “seriously in arrears of support payments” and “in default of paying several costs awards”, and that since Joe had not paid the costs awards ordered by the Divisional Court and by Justice Boswell, “to allow the current Rule 15 Motion to proceed would be an abuse of process.” Justice Perell held that Joe “should have moved to lift the stay of Justice Boswell’s Order, or he should have complied with the Order, which he has failed to do”: para. 41. Justice Perell and ordered costs of $11,719.02.

[15] Joe appealed to the Court of Appeal; the appeal was not perfected, and was dismissed with costs of $750.00.

[16] Joe then initiated this motion to change in Newmarket in 2018. However, the file had been traversed to Toronto in 2014. As a result, Justice Kaufman directed that this motion to change be traversed to Toronto, and ordered Joe to pay costs of $1,118.70.

[17] In this motion to change, Joe seeks:

Child support going forward be set at $614 per month in accordance with his salary of $60,000,
Child support cease once each child finishes an undergraduate degree;
Retroactive adjustment to child support as of January 1, 2010 based on his actual income, including an adjustment to arrears of $61,332,
Retroactive termination of spousal support as of December 31, 2009,
FRO garnishment be set at 35% not 50% of income.

Outstanding Costs Awards

[18] Joe has not paid any costs awards since 2004, although some of the awards are being enforced by FRO as an incident of support. The outstanding costs awards total $50,287.72 (not including interest), of which $29,700 costs are being enforced by FRO as an incident of support:

2004 Final Order – Undefended Trial: Costs of $15,700 plus interest (4%; enforced by FRO)
March, 2005 adjournment motion: Costs of $500 plus interest (4%)
Divisional Court 2006: Costs of $12,500 plus interest (5%; enforced by FRO)
2008/2009 Justice Boswell Order: $6,500 plus interest (4%)
2009 Justice Gilmore Order: $1,500 in favour of Director, FRO (enforced by FRO)
2014 Justice Perell Order: $11,719.02 plus interest (3%)
2015 Court of Appeal: $750.00
2018 Justice Kaufman Transfer Order: $1,118.70 plus interest (3%).

Joe’s Income

[19] FRO has been enforcing the 2004 order based on imputed income of $90,000. Joe has been an employee since 2004. His returns show employment income and some employment insurance income during periods of unemployment. Joe’s actual income for these years, based on CRA Notices of Assessment and pay stubs in the record, has been:

2004: $42,433
2005: $48,230
2006: $52,499
2007: $55,199
2008: $52,199
2009: $46,176
2010: $48,600
2011: $54,760
2012: $41,823
2013: $28,882
2014: $5,511
2015: $14,538.51
2016: $42,000
2017: $42,000
2018: $60,000 (as of August, 2018, based on employment contract)

[20] In her affidavit, Andreina states that Joe “has made no effort to pay down the arrears or costs”, although she acknowledges that FRO has garnished 50% of Joe’s pay from November, 2004 to present.

[21] Andreina asserts that: (a) Joe is underemployed, (b) he has recently changed his employment which occurs frequently, often when the FRO begins enforcement actions, and (c) Joe has “historically colluded with his employer to reduce his declared income for support purposes.” This will all be determined on evidence on the motion to change. On this motion to strike, I place no weight on the bald allegation that Joe has “colluded” with various employers over 14 years, to understate income, and simply note that this would require evidence on the motion to change rather than the bald allegations in this record. Whether Joe is intentionally underemployed has not been established on this motion, but would be an issue on the motion to change, to be established on the basis of evidence.

[22] Joe’s income tax returns, notices of assessment and affidavit establish on this motion a lengthy and relatively consistent income history over 15 years, aside from a period of employment between 2013 and 2015. Joe’s employment contract with his new employer as of August, 2018 is in the materials, and shows full time employment income of $60,000. Based on the record on this 2019 motion, Joe’s income has been about half of the imputed income of $90,000 since 2004.

[23] Motions to change may have retroactive effect, and arrears may be reduced on a motion to change. Based on his income, Joe estimates he has overpaid child support by $84,863 since 2004, and by $61,332 since 2010 alone. If that were established on a motion to change, then Joe would have the ability to pay all outstanding costs orders.

Joe and Andreina: Summary of Finances

[24] Joe drives a 2006 car, and has no savings. His income increased in August, 2018 from his previous job of $42,000 to $60,000, a substantial increase. After tax, he takes home $3,775.58 per month, of which $1,796 per month is garnished by FRO to pay for his support arrears. He pays rent of $550 per month; keeps up life insurance; and has very modest expenses. In addition to the FRO arrears, he owes personal loans of $53,800 to family and a friend relating to past legal fees. He has asked and cannot borrow further funds from friends and family. He has filed a credit report showing FRO arrears of $135,704, and his evidence is that institutional lenders will not loan him any funds because of these arrears.

[25] Andreina’s income was slightly higher than Joe’s in 2016 ($43,509) and 2017 ($42,659), and will be lower than Joe’s in 2018. Andreina contributes to the OMERS pension plan, which was not valued on her financial statement. She drives a 2013 car, and does not have savings. She owes personal loans of $64,000 to family. Andreina made a consumer proposal in Spring, 2014, and does not have access to credit as a result.

The Children: Table Support

[26] AB will complete his undergraduate degree by May, 2019. CD is in the third year of a four year undergraduate program. In the motion to change, Joe seeks to terminate his child support obligations for each child upon completion of an undergraduate degree.

[27] In her factum, Andreina states that “both children are living away from home.” Given that there is a motion to change, whether full residential child support was or remains payable is an open question, and Andreina should clarify the residential status of the children for the previous four years, and CD’s anticipated residential status for 2019-2020.

Conclusion

[28] On the record before me, I find that:

Joe has made out a prima facie case that since 2004, he has never made the level of income imputed to him;
The parties had a three year marriage, and the spousal support obligation has continued for 16 years;
Joe has made out a prima facie case that he does not have the assets or resources to discharge the outstanding costs orders before bringing a motion to change, that he is unable to borrow from friends and family, and that he is unable to borrow from institutional lenders because of the FRO arrears noted on his credit report;
I find that there is no reasonable prospect that Joe will be able to pay the outstanding costs orders, and as a result, no reasonable prospect that he will be able to bring a motion to change if payment of outstanding costs orders is a pre-condition.

Analysis

Should the motion be dismissed due to the Father’s failure to comply with Court Orders?

[29] Andreina argues that the motion should be dismissed due to Joe’s failure to comply with court orders; he is in arrears of $137,962.21, and owes costs of $50,287.72 (some of which are included in the arrears). Andreina quite rightly submits that non-compliance with court orders is not an acceptable litigation strategy, and that the Family Law Rules specifically contemplate sanctions for such non-compliance in Rules 1(8) through (8.4). In addition, the Court has the inherent jurisdiction to control its own processes. Joe’s non-compliance with the Orders is clear. She submits that Justice Boswell and Justice Perell had all of the relevant information about Joe’s income, and he advanced the same claims regarding inability to pay.

[30] Andreina relies on clear jurisprudence in the Court of Appeal and at this court that persistent non-compliance with court orders will generally result in the striking of pleadings, although she acknowledges that the remedy is discretionary: Vetro v. Vetro, 2013 CarswellOnt 5400 (C.A.); Biniaminov v. Biniaminov, 2018 CarswellOnt 15253 (SCJ).

[31] I agree generally with Justice Chappel in Levely v. Levely, 2013 ONSC 1026, at para. 12, that family court proceedings should not become “a destructive tool which one party wields and manipulates in order to create further financial and emotional hardship for the other party,” and lamenting the “futile money pit of failed justice.”

[32] Andreina cites clear authority that the ability to pay costs is only relevant upon the making of the order, not when compliance is in issue, and that “impecuniosity is not a defence to an application to strike pleadings based on a failure to honour court orders”: Peerenboom v. Peerenboom, 2018 ONSC 5796 (Sup Ct); Fatahi-Ghandehari v. Wilson, 2018 ONSC 5579, Moran v. Cunningham, 2009 CarswellOnt 3974 (Sup Ct); Van v. Palombi, 2017 ONSC 2492 (Div Ct).

[33] At the same time there are countervailing factors, including the primary objective of the Family Law Rules, which is to deal with cases justly. In part, this objective is met by ensuring that the process is fair to all parties and cases are dealt with expeditiously, cost-effectively, and proportionately. But dealing with a case justly also encompasses substantive justice – a just outcome, in which those similarly situated are treated similarly. The Child Support Guidelines seek to establish a substantively just outcome by setting child support payments based on income. Under the 2017 Child Support Guidelines, Ontario payors earning $90,000 annually pay $1,351.00 monthly for two children, while payors earning $42,000 (as Joe states he did in 2017) pay child support of $624.00 per month. At some point, paying child support on the basis of an income which is twice what a person earns becomes substantively unjust, and must be taken into account in the exercise of discretion.

[34] Compliance with court orders, including cost orders, is an essential part of the family justice system, and courts will generally not allow a litigant to take a next step without paying overdue costs awards. That said, justice and fairness cannot be achieved without a firm foothold in reality. Requiring the payment of all costs orders before addressing the motion to change means, effectively, that Joe will never be able to bring a motion to change despite the claim by Joe that he has not ever earned the imputed income upon which the underlying orders are based. If support had been based on his income, Joe argues he would have had more than enough resources to pay all outstanding costs orders.

[35] Requiring all outstanding costs orders to be paid before a party can take another step in litigation is generally just – it ensures that parties live up to their obligations and comply with orders, which is essential to the justice system. That is the interest that Andreina seeks to protect. On the other hand, Joe argues that fifteen years of paying child support on the basis of an income which is twice what a person earns is substantively unjust, has interfered with his ability to pay outstanding costs awards, and must be taken into account in the exercise of discretion.

[36] The goal is to strike a balance between the competing interests advanced before me. In the exceptional case – and this is one – insistence on payment of all outstanding costs awards before a motion to change can be brought risks perpetuating an injustice, constitutes a barrier to access to justice, and presents a risk to the proper administration of justice. I have considered relative prejudice, and that Joe has established a prima facie case that the motion to change is potentially meritorious. I also consider the length of time – 15 years of paying child support on an imputed income which is twice what Joe says he has made. I consider the lack of assets, and the lack of credit, and find that Joe will never be able to pay the outstanding costs orders and arrears. I find that in these circumstances, it is in keeping with the primary objective of dealing with cases justly to allow Joe to proceed with the motion to change, as no other procedure is available to Joe that would afford meaningful redress.

[37] On the evidence before me, Joe has made a prima facie case based on income tax returns and notices of assessment that he has overpaid child and spousal support by a significant amount for 14 years, and that he does not have assets to pay the outstanding costs orders nor access to credit given the size of the outstanding arrears and the continuing garnishment by FRO. I exercise my discretion to allow Joe to proceed to argue his motion to change on terms as set out below.

Should the motion be dismissed on its merits?

[38] Andreina also argues that the motion should be dismissed on its merits, arguing that Joe has the ability to pay retroactive and ongoing child, spousal support and costs orders, and simply refuses to do so.

[39] On the record before me, given the CRA Notices of Assessment and Joe’s most recent employment contract, as well as Joe’s financial statement, I do not find that the “outcome of the father’s motion to change is a foregone conclusion,” as argued by Andreina. Rather, Joe has made out a prima facie case that his income is not at the level imputed to him in 2004. He has made out a prima facie case that he does not currently have the ability to pay retroactive and ongoing child, spousal support and costs orders, he has no assets, and is unable to obtain loans from institutional lenders because of the size of the outstanding FRO arrears. He has also given evidence that he owes money to friends and family, and has asked and is unable to borrow from friends and family. Given Joe’s income, the arrears, and the 50% garnishment by FRO, the reality is that Joe will never be able to pay those orders. If Joe is able to establish that there has been a material change in income, this could constitute a material change which could reduce arrears owing, and create the financial ability to pay the costs orders.

[40] Andreina also argues that Joe is attempting to circumvent Justice Boswell’s 2009 Order staying the 2008 motion to change by bringing a fresh motion to change, and the 2013 motion to change was struck until Joe complied with the 2009 Order of Justice Boswell or sought to lift the stay. She I do not find that Joe is seeking to circumvent the order of Justice Boswell on the 2008 motion to change. Joe does not seek to rescind his obligation to pay the outstanding costs orders; rather, he seeks to restructure the financial obligations he asserts are based on an unfair imputed income order, so that he has the financial ability to discharge his costs obligations and pay support obligations that should be owed. He has brought a motion to change child support as of January 1, 2010. The 2008 motion before Justice Boswell dealt with child support prior to that time. Joe has brought a motion to terminate spousal support as of December 31, 2009, which post-dates Justice Boswell’s order.

[41] In 2013, Justice Perell identified that the proper route would have been to seek to lift Justice Boswell’s stay. I am not sure that this is necessary, since the March 25, 2009 Order of Justice Boswell, paragraph 2, provides: “The Respondent’s Motion to Change dated October 31, 2008 (support) is stayed pending payment of the outstanding costs awards, pursuant to Rule 14(23) of the Family Law Rules.” As I read it, the stay only applies to the 2008 motion to change, but I appreciate that this is a complicated concept for a self-represented litigant. If necessary, I find that this relief is implicit in the motion to change brought by Joe, and lift the stay set out in para. 2 of the March 25, 2009 Order to allow Joe to argue his 2018 Motion to Change, which seeks relief in the period December 31, 2009 following.

Additional Procedural Issue

[42] The Confirmation of Motion filed by Andreina referred to materials relied on by her in the previous 2014 Motion to Change Record, and contained a notation that “The Mother references materials in her Notice of Motion that are found in the Continuing Record but that the Court does not necessarily need to review prior to the hearing of the long motion.” The Confirmation states that the materials would be provided on a USB stick. On the return date, no USB stick was provided to the Respondent and there was no laptop in the Court. As a result, I ordered and reviewed the additional documents from the 2014 Motion which were referred to in the Applicant’s Confirmation of Motion, as well as Continuing Record, Volume 19, Tab 2, which the Applicant handed up.

Self-Represented Litigant

[43] Joe is a self-represented litigant. Judges have a responsibility to ensure that self-represented persons are provided with fair access and equal treatment by the courts, and to facilitate access to justice.

[44] In Pintea v. Johns, 2017 SCC 23, [2017] 1 S.C.R. 470, the Supreme Court of Canada endorsed the Canadian Judicial Council's Statement of Principles on Self-Represented Litigants and Accused Persons (2006), which include the statements that:

Judges have a responsibility to inquire whether self-represented persons are aware of their procedural options, and to direct them to available information if they are not. Depending on the circumstances and nature of the case, judges may explain the relevant law in the case and its implications, before the self-represented person makes critical choices.
In appropriate circumstances, judges should consider providing self-represented persons with information to assist them in understanding and asserting their rights, or to raise arguments before the court.
Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented parties.

[45] In light of these principles, I am advising Joe that all information which he believes is relevant and important to the motion to change argument must be set out in an affidavit. At the hearing of the motion, Joe attempted to provide additional information, including that he is not qualified as a Chartered Accountant, and that he has had three employers since 2004. I told Joe that I could not take into consideration anything not contained in an affidavit in the Continuing Record, and I have not considered any information not contained in the affidavit evidence on this motion. Therefore, I am advising Joe that he must carefully consider all relevant information, and include this evidence in a Form 14 Affidavit. I give Joe leave to file a Form 14 affidavit containing supplementary information.

[46] Neither party filed the most recent Director’s Statement of Arrears from the Family Responsibility Office. Joe is to file the updated Statement of Arrears from the Family Responsibility Office with his Form 14 Affidavit.

[47] I also refer Joe to important sources of legal information about how to bring and respond to a motion to change in family law. These include:

The “Guide to Process for Family Cases at the Superior Court of Justice”, at http://www.ontariocourts.ca/scj/news/publications/guide-family/
Additional resources on the Superior Court of Justice Website at http://www.ontariocourts.ca/scj/family/resources/
Additional resources available in person at the Family Law Information Centre at 393 University Avenue, 9th Floor
Case and statutes available for free at https://www.canlii.org

Costs

[48] Although Joe is the successful party, in light of unpaid costs orders, I am not ordering Andreina to pay costs of this motion.

Order and Terms

[49] Order to go as follows:

The Applicant’s motion to strike, dismiss or stay the Motion to Change is dismissed, and the Respondent’s Motion to Change is to proceed;
If necessary, the stay set out in the March 25, 2009 Order of Justice Boswell, paragraph 2, is lifted for the purpose of allowing the Respondent to proceed with his Motion to Change.
The Respondent is given leave to file a further Form 14 Affidavit on the Motion to Change no later than May 31, which should include all information that he intends to rely on in the Motion to Change, including the most recent Director’s Statement of Arrears from the Family Responsibility Office.
The Applicant has leave to file a further Form 14A Affidavit in response, by June 21, 2019.
The Applicant is to advise the Respondent by letter or e-mail as to the residential status of the two children for the past four years (if either of them have resided away from home in this period, and the dates) by May 14, 2019.
After conferring on dates, the parties are to schedule a Case Conference on a mutually agreeable date which is to be no later than July 15, to timetable all remaining steps needed to schedule argument on the motion to change. The parties do not have to file Case Conference Briefs, but they must each file a proposed timetable of necessary steps, with dates, to take them to argument on this Motion to Change before the end of December, 2019, together with a list of all orders being sought at the Case Conference. The Applicant is to file this Endorsement for the Case Conference.
Counsel for the Applicant is to take out the Order, and approval of the Respondent to the form and content of the Order is dispensed with.

Justice Kristjanson Date: May 6, 2019