Malette v. Malette, 2019 ONSC 3448

COURT FILE NO.: 5787/15 DATE: 20190604

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

LIANNE MALETTE Applicant – and – JOEL MALETTE Respondent

COUNSEL: D. Dorrington-Black, for the Applicant D. Bennett, for the Respondent

HEARD: April 5, 2019

DECISION ON MOTION

WILCOX J.

OVERVIEW

[1] This matter has had lengthy history. The parties cohabited from 1991, married in 1996, had two children, and separated in 2010. A divorce was granted on February 7, 2018.

[2] Lianne Malette started a family case in Sudbury in 2010 and got temporary support orders which expired when the case was administratively dismissed late in 2012 for delay. There appear to have been FRO proceedings which ended when FRO learned of the dismissal. There is some indication that there were or are subsequent FRO proceedings, but little information is on file about those.

[3] At some point post-separation, Joel Malette was seriously injured, but resumed his work as a mine superintendent. It appears that he is capable of making an income of well over $100,000.00 per year. The injury apparently resulted in an insurance claim and settlement.

[4] Lianne Malette brought a Motion to Change the second Sudbury temporary order in a Haileybury proceeding (File 5537/13) in 2013, apparently in ignorance of both that such motions do not apply to temporary orders, only final ones, and that the Sudbury case had been dismissed. That Motion to Change was dismissed in August, 2013 without prejudice to her bringing a further application.

[5] She commenced a second Haileybury case (5577/13), seeking support. When Joel Malette did not appear, although personally served according to the Affidavit of Service filed, a final order was made on November 12, 2013 for child and spousal support.

[6] Lianne Malette next commenced the current case in Haileybury (5787/15) in March, 2015, regarding property issues that had not appeared in her previous court files. Joel Malette answered. There have been numerous conferences and motions with various judges. A review of the file shows that the parties are unlikely to feel constrained by the pleadings in the issues that they raise at these. The issues identified at conferences and in motions go well beyond those raised in her Application and in his Answer/Claim by Respondent. This will become more apparent below.

[7] A big problem has been lack of continuity of representation. The applicant started as a self-represented litigant, but retained Mr. Warman in 2015 and then Ms. Dorrington-Black after Mr. Warman left practice, and continues to be represented by her currently. The respondent has had several lawyers, when not a self-represented litigant, and has had his current counsel only since January, 2019. At one point, he brought a motion on his own even though he had a lawyer on record at the time. This lack of continuity has frustrated the progress of the file. Ideally, there will be no further changes in representation and the current counsel will be able to see the case through to resolution with the assistance of case management.

[8] The case has had the benefit of case management by Nadeau J. since March, 2018. That case management has been suspended pending the receipt of the decisions on the present motions. In particular, Nadeau J.’s endorsement of March 19, 2019, indicates that the respondent is seeking leave for questioning, but a decision on that has been deferred until after the current motions are decided.

THE CURRENT PROCEEDINGS

[9] The current Application (in court file 5787/15, dated March 25, 2015), claimed:

1. A restraining non-harassment order;
2. Net family property equalization;
3. A freezing of the respondent’s assets.

Notably, it does not claim support. That had been dealt with in previous proceedings, as noted above. Indeed, it refers in the narrative to the separate court processes with respect to obtaining and enforcing for support.

[10] Joel Malette’s Answer of October 26, 2015, includes a claim for:

1. Divorce;
2. Access to the parties’ daughter, Kloe;
3. A dismissal of the Application; and
4. For the outstanding financial issues to continue to be dealt with through FRO proceedings as he said they had been since May, 2014.

[11] The children are Damian Malette and the above-mentioned Kloe Malette.

[12] Damian was born August 5, 1994, turned 18 on August 5, 2012, and was 20 years of age as of the date of the Application, March 25, 2015, which indicated that he was “on his own” at that point.

[13] Kloe Malette was born March 6, 2001, and was 18 years of age on March 6, 2019. She was 14 years of age as of the date of the Application, March 25, 2015, which indicated she was living with the applicant mother at the time.

[14] Mention was made in the overview above about the parties attempting in conferences and motions to deal with issues that had not been raised in their pleadings. One example is the respondent’s Notice of Motion first returnable on November 20, 2015. This was shortly after he had prepared his Answer/Claim by Respondent. Much of the relief requested in the motion would have been appropriate to request in the Answer/Claim by Respondent. At a case conference on December 8, 2015, he was granted leave to amend his Answer/Claim by Respondent to deal with support issues.

[15] Perhaps in anticipation of this amendment, temporary orders were made on December 8, 2015, regarding child support and spousal support, on consent.

[16] The respondent was supposed to pay child support for Kloe Malette, born March 6, 2001, to the applicant in the amount of $903.00 per month commencing December 1, 2015, based on a projected 2015 income of $103,917.86. He was also to pay to the applicant spousal support $1,700.00 per month commencing December 1, 2015, subject to re-adjustment once the parties 2015 incomes were confirmed.

[17] In the endorsement made at that time, it was noted that counsel of the day had agreed to review the parties’ income records with a view to adjusting the support arrears and creating a payment schedule. Such a re-calculation of support was again referred to in an endorsement made on October 13, 2016, on the return of a motion of the respondent.

[18] Notably, neither the Application nor the Answer/Claim by Respondent has been amended to cover issues such as child and spousal support that figure prominently in this matter and that the parties are obviously interested in dealing with.

[19] However, the respondent brought a Notice of Motion returnable on October 13, 2016, seeking disclosure and other relief relevant to support issues. It appears that the parties and counsel of the time were not alive to and did not make the court aware of the fact that the relief requested in the Notice of Motion went beyond the issues identified in the pleadings. Orders were made with respect to support in consequence.

[20] Given that the Applicant claimed in her Application a net family property and equalization, the Family Law Rules, specifically R. 13(14), require Net Family Property Statements to be served and filed. Neither party has done so. In fact, the property issues that were pleaded appear to have taken a back seat in these proceedings to support issues that were not pleaded.

[21] In particular, both sides were to produce specified disclosure. The temporary of December 8, 2015, was varied so that the spousal support was reduced to $1,140.00 per month commencing January 1, 2016, based on a projected 2016 income of $103,000.00 subject to further variation if and when better income information became available. The enforcement of payment of any arrears accrued to date was suspended pending a re-calculation of support based on full disclosure for each party.

THE MOTIONS

[22] Now, in her current Notice of Motion, dated January 4, 2019, the applicant seeks:

1. An Order for adjustment to the retroactive child support owed by the Respondent, Joel Malette, according to the Temporary Order of Justice Wilcox dated December 8, 2015, pursuant to Section 31 of the Family Law Act, 1990;
2. An Order for the adjustment of the ongoing child support owed to the Applicant, Lianne Malette, by the Respondent, Joel Malette, using the accurate income information of the parties pursuant to Section 31 of the Family Law Act, 1990;
3. An Order for adjustment to the retroactive spousal support owed by the Respondent, Joel Malette, according to the Temporary Order of Justice Wilcox dated October 13, 2016, pursuant to Section 30 of the Family Law Act, 1990;
4. An Order for the adjustment of the ongoing spousal support owed to the Applicant, Lianne Malette, by the Respondent, Joel Malette, using the accurate income information of the parties pursuant to Section 30 of the Family Law Act, 1990;
5. An Order for interim disbursements to the Applicant, namely Lianne Malette, in an amount and payment schedule determined by this Honourable Court;
6. An Order that the Respondent in this matter, Joel Malette, pay all support obligations as determined by this Honourable Court through a lump sum payment by January 31, 2019, failing which, shall result in the pleadings of the Respondent, Joel Malette, being struck;
7. An Order for security for costs associated with this proceeding;
8. An Order for the issuance of a Certificate of Pending Litigation registered against any and all real property owned in part or in whole by Respondent Joel Malette, including, inter alia, the property owned by the Respondent, Joel Malette located in North Cobalt, Ontario;
9. An Order that counsel for the Applicant, namely Lianne Malette, can communicate directly with AXA Insurance Canada as it relates to any and all coverage or claims made by Joel Malette;
10. A non-harassment Order against Joel Malette as it relates to the Applicant, namely Lianne Malette, and her daughter, namely Kloe Malette, born March 6, 2001, pursuant to Section 13.1 of the Family Law Act, 1990;
11. A restraining Order against Joel Malette, as it relates to the Applicant, namely Lianne Malette, and her daughter, namely Kloe Malette, born March 6, 2001, pursuant to Section 46 of the Family Law Act, 1990;
12. An Order setting this matter down for trial no later than April 2019, and for no less than two (2) days of trial;
13. An Order for the costs of this motion on a substantial indemnity basis pursuant to Rule 24 of the Family Law Rules, 1990;
14. Any such further relief as counsel may advise and this Honourable Court may deem just.

[23] The respondent’s cross-motion, dated February 22, 2019, seeks:

1. An Order that the Applicant's Motion, dated January 4, 2019, be dismissed and this matter be immediately set down for Trial.
2. In the alternative: a) An Order that the Claims #1 and #2 of the Notice of Motion of the Applicant, Lianne Malette, dated January 4, 2019 for retroactive and ongoing Child Support be recalculated pursuant to the Respondent, Joel Malette's true income with amounts paid to the Family Responsibility Office be credited in favour of the Respondent. b) An Order that ongoing child support be terminated as the child, Kloe Malette (female, born March 6, 2001), has repudiated her relationship with the Respondent, Joel Malette. c) An Order that the Claims #3 and #4 of the Applicant's Notice of Motion dated January 4, 2019 be dealt with at Trial, to be scheduled with the Trial Coordinator as soon as possible. d) An Order for Claim #12 of the Applicant's Notice of Motion dated January 4, 2019. e) An Order dismissing Claims #5, #6, #7, #8, #9, #10, #11, and #13 of the Applicant's Notice of Motion dated January 4, 2019. f) An Order that the Applicant provide receipts to the Respondent for all spousal support she has received from the Respondent, for income tax purposes, within ten (10) business days. g) An Order that the Applicant provide spousal support receipts on or before January 31 on an annual basis, for as long as support is being paid and, if she fails to provide a receipt, enforcement of spousal support shall be suspended until the receipt(s) is/are provided. h) An Order that the Respondent, Joel Malette, be granted leave from the Court to amend the relief sought in his Answer, prior to Trial, with the Applicant, Lianne Malette be granted the right to Reply. (sic) i) An Order that the Final Order, dated November 13, 2013 be withdrawn. j) An Order barring the Applicant from bringing any further Family Law proceedings against the Respondent without prior leave of the Court. k) An Order that the parties execute the Canada Revenue Agency form to Authorize a Representative, specifically naming the opposing Counsel as the Representative, to be granted access to income tax information from the opposing party by telephone and in writing (no online access) and the signed Authorization shall be provided to the other party within five (5) days of this Order. l) Costs of this Motion be made on a substantial indemnity basis in favour of the Respondent. m) An Order abridging the time for service and filing of this Notice of Motion and supporting Affidavit, if required. n) Such further and other relief as Counsel may advise and this Honourable Court may permit.

[24] The parties have provided considerable affidavit material that is replete with recriminations. This is not helpful. Rather, it is distracting. The issues need to be identified, all the necessary disclosure has to be made, steps need to be taken to address the questions of credibility, and appropriate procedures must be followed to get the matter to a resolution. The Family Law issues in this case are not unique or even unusual. The applicable law is well known. In that law, allegations of misconduct have such highly circumscribed application to support and property issues that they are irrelevant in most cases. The guidelines for child and spousal support provide a high degree of certainty and reduce the room for disagreement. The vast majority of such cases are resolved by agreement. This case has gone on far too long at the expense not only of the parties, but of the court system. Consequently, I will point out the primary objective of the Family Law Rules and related provisions:

2(2) The primary objective of these rules is to enable the court to deal with cases justly.

(3) Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.

(5) The court shall promote the primary objective by active management of cases, which includes,

(a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial;

(b) encouraging and facilitating use of alternatives to the court process;

(c) helping the parties to settle all or part of the case;

(d) setting timetables or otherwise controlling the progress of the case;

(e) considering whether the likely benefits of taking a step justify the cost;

(f) dealing with as many aspects of the case as possible on the same occasion; and

(g) if appropriate, dealing with the case without parties and their lawyers needing to come to court, on the basis of written documents or by holding a telephone or video conference.

In addition to the active case management, the court has other means at its disposal, including costs awards, to encourage appropriate behaviour. It follows that the court system is not something that people can choose to misuse with impunity. The parties should govern themselves accordingly.

[25] The applicant filed in support of her Notice of Motion the Affidavits of:

1. Annette Dodds, dated August 21, 2018;
2. The applicant, dated January 4, 2019;
3. The applicant, dated March 29, 2019;
4. Melissa Whelan, dated March 29, 2019; and
5. Melissa Whelan, dated April 2, 2019.

The respondent filed the affidavits of:

a. the respondent, dated February 22, 2019, b. Tracey Hamilton, dated March 27, 2019; c. Tracey Hamilton, dated April 5, 2019;

These were in addition to various financial statements and other documents.

APPLICANT’S PROCEDURAL ISSUE

[26] At the outset of the hearing, the applicant’s counsel raised a procedural issue, objecting to the court considering the respondent’s affidavit material on the ground that it was filed late. She referred to the endorsement of Justice Nadeau, the case management judge, of May 18, 2018 and January 10, 2019.

[27] The May 18, 2018, endorsement says “Ms. Dorrington will be bringing a motion which will be served on the respondent, and I will be sent the material to decide when and where it should be heard.”

[28] The January 10, 2019, endorsement includes the following at paragraph 2:

Pursuant to my direction to counsel on May 18, 2018, I have reviewed the Notice of Motion dated January 4, 2019, with the supporting affidavits sworn January 4, 2019. I direct that this motion be heard in Haileybury as a long family motion (1 day appears needed) to be scheduled by the trial coordinator in Haileybury. The respondent is to serve and file his responding materials on or before January 31, 2019. …

[29] As of January 10, 2019, the respondent was self-represented. His Notice of Change in Representation of January 24, 2019, stating that he had chosen to be represented by a lawyer, Mr. Bennett, was served on January 25, 2019, and filed February 12, 2019. Ms. Dorrington consented to an extension of time to February 23, 2019. Negotiations took place without success. Mr. Bennett’s office then served on March 12, 2019, two Notices of Motion and supporting documents including an Affidavit of the respondent dated February 22, 2019. The Notices’ of Motion were a Form 14B one seeking leave for questioning and the respondent’s cross-motion for the April 5, 2019 hearing.

[30] Justice Nadeau endorsed the following on March 19, 2019, when dealing with the Form 14B Motion:

Teleconference held with counsel re Motion for questioning by the respondent. For reasons indicated, having regard to one day set aside for Justice Wilcox to hear the long motion (see my endorsement of January 10, 2019) and now a cross-motion, as the Case Management Judge on this matter I will not order questioning as requested, and will re-consider that decision after the decision by Justice Wilcox.

[31] Obviously, Nadeau J. was aware of the respondent’s cross-motion. This procedural concern could have been aired with him at that time. Having acknowledged the cross-motion, Nadeau J. said nothing more about it in his endorsement. As he, having made the series of endorsements regarding the motions, did not see fit to do so then, I assume that he was not concerned about it. Consequently, I will not now rule out the use of the respondent’s material for the purpose of the present motion.

RESPONDENT’S PROCEDURAL ISSUE

[32] After dealing with procedural and housekeeping issues, I requested an indication of how counsel saw the hearing proceeding. Applicant’s counsel sought initially to adjust support from 2016, consistent with my October 13, 2016, temporary order. Respondent’s counsel responding that we could not deal with support because, allegedly, the applicant had not made full disclosure and had shown in defrauding ODSP that she would lie for money.

[33] At that point, I noted to counsel that although the pleadings frame this as a property case, property has not been dealt with. Instead, it has proceeded as a support case.

[34] Turning to the parties themselves, I admonished them that the high level of conflict has hurt the case, noting in summary that decisions about property and support are based on financial information, not conduct, that, although most cases settle, this case is dragging on too long (something I previously noted in my October 13, 2016 endorsement!), that if missing information is getting in the way of settling, there are ways of getting it, and that the case has to move towards resolution. If at least child support could be sorted out for some period subject to the question of a date after which it would no longer be payable, then other issues could be looked at. I directed the parties to instruct their lawyers to try to agree at least on child support for some period from separation onward, because the necessary information was available subject to the question of when child support should end. I then stood down to allow for that.

[35] I also pointed out that previous counsel had agreed to work out the support issue based on better information and that I was holding present counsel to that, noting that it might be difficult for spousal support, but not for child support.

[36] This approach was consistent with the primary objective of the Family Law Rules and, in particular, the court’s duty to actively manage cases. [1]

[37] After a while, counsel requested to see me. I understood that they wanted to discuss support and clarify what I had intended. A discussion followed about their inability at that point to resolve the issue, the possible time periods involved, how to handle the respondent’s concerns about the accuracy of the applicant’s income information, and possible procedures to follow if there was or was not a resolution. I emphasized that the law provides for support and that it is based on income information, not conduct, and that, it goes without saying, there can be costs implications of how parties conduct their cases. It was made explicit that the primary objective of the Family Law Rules puts obligations on the parties, the lawyers and the court, and that my remarks were intended to assist with that in mind.

[38] Respondent’s counsel expressed that the discussions had gone too far, becoming a settlement conference and compromising my ability to hear the motions. Applicant’s counsel disagreed, as do I.

[39] Back in open court, respondent’s counsel took the position that the motions could not be proceeded with that day because:

1. The meeting with counsel had morphed into settlement conference;
2. Observations had been made about the parties, especially the respondent, that raised concerns about my being prejudiced by the discussions;
3. There was at least the appearance of a reasonable apprehension of bias, although he had submitted earlier that there were no actual concerns about procedural fairness, only concerns for the appearance of it;
4. That parts of my decision had already been drafted;
5. The motions had been confirmed by both counsel for an hour, that it was now about 4 hours in, and that he had client meetings scheduled which he could not move, followed by child care responsibilities. On this point, the matter proceeded within time limitations to address their concerns and accommodate counsel, so nothing further need be said about it.

[40] Applicant’s counsel responded:

1. That such discussions are common place;
2. That nothing was said which was prejudicial or biased;
3. That respondent’s counsel’s comments were an effort at delay, noting that her motion had been known of since January, 2019 and that it would be extremely prejudicial to her client not to proceed.

[41] Due to the pressure of time, I deferred consideration of respondent’s counsel’s concerns, and heard the balance of counsels’ submissions, limiting their duration so as to accommodate their time pressures.

[42] I agreed to the request to meet with counsel in the spirit of the primary objective of the rules. That such an effort would become the subject of contention is disappointing.

[43] I do not share respondent’s counsel concern that the meeting took on the appearance of a settlement conference. From my point of view, the discussion was largely procedural. That is, it was an effort to identify the impediments to progress and find a procedure to move the case forward. If some comments or information items were received which were not strictly appropriate to hear, counsel would be aware that the courts often have to disabuse themselves of such, and do so.

[44] As for observations made about the conduct of the parties, that was in the context of a repetition of the point made in open court about conduct not being a consideration in deciding financial issues such as support. An example was given of the conduct of each side. So, rather than being illustrations of real or perceived biased, these were quite the opposite, being examples of irrelevancies.

[45] The suggestion that the fact that part of my decision had been drafted was a concern is disingenuous. First, it is not uncommon as one prepares for a hearing to make notes which could find their way into a final decision. Things like the particulars of the parties and the relationship, the history of the case, the issues in it, and the applicable laws and rules might be noted. This promotes understanding and improves the efficiency of the hearing and the preparation of the decision afterwards. Secondly, when this process was referred to in the meeting with counsel and appeared to cause undue concern to respondent’s counsel, it was made explicitly clear that nothing substantive had been decided. There is simply nothing to this concern.

SUPPORT

[46] The applicant sought to adjust the child support and spousal support as of January 1, 2016, on the following basis. By temporary order of December 8, 2015, the respondent was required to pay child support of $903.00 per month and spousal support of $1,700.00 per month, both commencing December 1, 2015. The child support was based on the respondent’s projected 2015 income of $103,917.86. The spousal support was subject to re-adjustment once the parties 2015 incomes were confirmed. Then, by the temporary order of October 13, 2016, the December 8, 2015 temporary order was varied so that the respondent would pay to the applicant spousal support of $1,140.00 per month commencing January 1, 2016 on a projected 2016 income of $103,000.00, subject to further variation if and when better income information became available for either or both parties. The applicant submitted that the required income information is now available. Exhibit 1 comprised a series of Divorce Mate calculations based on that, together with a chart summarizing the support information for the years 2016 - 2019. It should be noted that the chart was updated in court to reflect information that the applicant had just received regarding the respondent’s 2018 income. Whereas the support calculation for 2018 and 2019 had been based on information that the respondent’s 2018 income was $108,242.00, the updated figure was $112,679.00. The applicant submitted that, therefore, child support for 2018 and 2019 should be set at $1,011.00 per month, instead of the $975.00 per month originally calculated at the lower income figure. She was content to keep the spousal support at the figures shown on the chart, as time did not permit re-calculation of spousal support for 2018 and 2019 based on the new 2018 income information from the respondent.

[47] The respondent’s position was that, all of his income information having been provided, child support could be determined from that. However, there was a triable issue as to whether the child had repudiated her relationship with him at some point such that child support would no longer be payable from that point on.

[48] As for spousal support, his position was that it should not be dealt with at this time. This was because, he alleged, the applicant had demonstrated dishonesty such that her income information could not be trusted. Further information was required from the CRA together with oral evidence and cross-examination, so spousal support should be left for trial, he submitted.

CHILD SUPPORT

[49] Dealing first with child support, I find that, the respondent’s income information having been produced, it is possible to calculate child support for the periods in question. Therefore the temporary order of December 8, 2015, shall be varied so that the respondent shall pay the following child support guideline table amount of child support for each year, commencing on January 1 of the year and payable of the first of each month of that year, to and including December 1:

1. For 2016, $878.00 per month based on an annual income of $99,690.00;
2. For 2017, $1,462.00 per month based on an annual income of $172,584.00;
3. For 2018, $1,011.00 per month based on an annual income of $112,679.00; and
4. For 2019 and thereafter until further order of the court, $1,011.00 per month based on a projected annual income at the 2018 level of $112,679.00, subject to variation to accord with the actual income when it becomes known.

[50] The child Kloe Malette was born March 6, 2001. She is 18 years of age. The information about her situation is sparse, but the indication is that she remains living with the applicant mother, is in high school, and plans to go on to post-secondary education. There is no suggestion that she would not qualify for child support, except that the respondent father takes the position that she has repudiated her relationship with him, which the applicant denies, and that child support should have been terminated at some point. Therefore, the respondent resisted dealing with child support until the issue of repudiation is dealt with at a trial.

[51] In the circumstances, I find that the child has been and continues to be entitled to child support subject to the issue of repudiation. That issue cannot be resolved at this time. The starting point at law is that a parent is required to provide support for a qualifying child. To find that a child no longer qualifies for support because of a repudiation of the relationship to the payer parent is a rare occurrence. If it was found to have occurred as of a particular date, that would not affect the child support preceding that date. Therefore, I do not accept the respondent’s argument that temporary child support should not be dealt with at this time.

SPOUSAL SUPPORT

[52] Turning to spousal support, the affidavit of February 22, 2019, of the respondent alleges generally that:

1. There is a lack of disclosure by the applicant to appropriately determine any claim for and entitlement to spousal support;
2. The applicant failed to comply with a court order for disclosure;
3. It appears that some of the applicant’s documents have been altered;
4. The applicant has misrepresented her income to the CRA and this court;
5. The issues of entitlement and quantum of spousal support will only likely be resolved at trial;
6. The applicant is no longer entitled to spousal support, despite some information to the contrary, which decision will also require a trial.

[53] More specifically, it indicates that the applicant has disclosed income tax returns, but not the supporting documents nor the Notices of Assessment or Re-Assessment and some other information.

[54] The only example given of a document that the respondent suggest might be altered is a Notice of Re-Assessment for 2012. The suspicion is based on the observation that “the numbers appear to be in different fonts and not lined up”.

[55] The applicant responded in her affidavit of March 29, 2019 that:

1. She has provided all the information that has been requested of her and complied with all court orders for disclosure;
2. She has not altered any of her financial information;

In refutation of the respondent’s one specific example of his concern with the applicant altered documents which refers to her 2012 Notice of Re-Assessment, she provided an Income Tax Return Information-Regular print out which shows the same line 150 total income as does the Notice of Re-Assessment in question. This obviously tends to undermine the allegation that she somehow altered the document. As that was the only specific example given to support the respondent’s suggestion that the applicant’s financial records had been altered, it appears on the balance of probabilities that the applicant’s financial records can be taken at face value unless and until better income information becomes available.

[56] The case management judge endorsed on January 10, 2019 that he had reviewed the applicant’s Notice of Motion and supporting Affidavit and directed that the motion be heard. If he had not been satisfied that there was sufficient information from the applicant for this purpose, I trust that he would not have so directed.

[57] I am not able to resolve the conflicts between the affidavits, but do not believe that it is necessary to do so for the purpose of dealing with interim spousal support. As I understand it, the applicant’s income information is available and was used in the Divorce Mate calculations in Exhibit 1. The respondent’s position is not that the income information is not available through her income tax return information, but that there are issues about the applicant’s entitlement to spousal support and the accuracy of her income information. I find that there is a prima facie case for spousal support. This is consistent with the fact that there have been previous temporary orders for spousal support made on consent with provision for a variation if and when their income information became available, as it has. Given the apparent great disparity between the parties’ respective incomes, information regarding the respondent’s income is of primary importance in determining the quantum of spousal support. Even if the respondent became able to show some inaccuracies in the applicant’s income, I would be surprised, given what the file reveals of their respective financial situations, if the quantum of spousal support would change drastically. Therefore, I agree to the applicant’s request to vary the temporary spousal support from and including 2016.

[58] The applicant provided the spousal support calculations in Exhibit 1. As previously noted, the respondent’s income information was updated for 2018 and 2019, but the applicant was content to accept the spousal support shown in Exhibit 1 because time did not permit a re-calculation of spousal support to reflect the respondent’s revised, higher income figures.

[59] The applicant did not seek spousal support at the high range, but left it to the court to choose between the low end mid-range figures. The respondent provided no submissions on point. For the purpose of a temporary order I will use the mid-range.

[60] Therefore, the temporary orders of December 8, 2015, and October 13, 2016, shall be varied so that the respondent shall pay the following spousal support guideline mid-range amount of spousal support to the applicant for each year, commencing on January 1 of the year and payable on the first of each month of that year to and including December 1:

1. For 2016, $1,532.00 per month based on the respondent’s annual income of $99,690.00 and the applicant’s annual income of $18,756.00;
2. For 2017, $3,693.00 per month based on the respondent’s annual income of $172,584.00 and the applicant’s annual income of $18,656.00;
3. For 2018, $1,938.00 per month based on the respondent’s annual income of $108,242.00 and the applicant’s annual income of $11,000.00;
4. For 2019 and thereafter, $2,413.00 per month based on a projected annual income of $108,242.00 for the respondent and $0 for the applicant, subject to variation to accord with the actual incomes when they become known.

INTERIM DISBURSEMENTS

[61] I turn next to the applicant’s request for an order for interim disbursements to be paid to the applicant by the respondent in an amount and payment schedule to be determined by the court.

[62] In brief oral submissions, the applicant’s counsel referred to Family Law Rule 24(18) and the case of Stuart v. Stuart, stating that all three parts of that case is the three part test were met, the case appeared to be on its way to trial, and that we had to “level the playing field” given the income information and the applicant’s need. These are supplemented by written submissions from both sides.

[63] The applicant’s written submissions sought $25,000.00 to $50,000 to be put towards legal cost on the grounds that she is of limited means, is unable to continue this litigation without the interim disbursement, that the respondent has been slow to make financial disclosure, and that he has the means.

[64] Counsel agreed on the applicable statutory provisions and legal test.

[65] Subrule 24 (18) (previously 24 (12)) of the Family Law Rules permits the ordering of interim disbursements:

24 (18) The court may make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including a lawyer’s fees. O. Reg. 418/18, s. 1.

[66] Subrule 24 (18) must be read in conjunction with the primary purposes of the rule which are found in subrule 2 (2) and 2 (3):

2 (2) The primary objective of these rules is to enable the court to deal with cases justly. O. Reg. 114/99, r. 2 (2) .

2 (3) Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. O. Reg. 114/99, r. 2 (3) .

[67] The order under subrule 24 (18) is a discretionary one. In exercising discretion under the rule, the court must ensure the primary objective of fairness under the Family Law Rules is met. [3]

[68] In the leading case in the Family Law context, Stuart v. Stuart, the court delineated a three part test for interim disbursements:

1. The claimant must clearly demonstrate that the disbursements are necessary and reasonable given the needs of the case and the funds available;
2. The claimant must demonstrate that he or she is incapable of funding the requested amounts;
3. The claim or claims being advanced in the case must be meritorious as far as can be determined on the balance of probabilities at the time of the requests for disbursements.

[69] The court in Stuart added that:

9. The court interprets the new Family Law Rules to require the exercise of the discretion in rule 24 (12) on a less stringent basis than the cases that call for such only in exceptional cases. The discretion should be exercised to ensure all parties can equally provide or test disclosure, make or consider offers or possible go to trial. Simply described, the award should be made to level the playing field.

[70] However:

10. An order under section 24 (12) should not immunise a party from costs awards. The order is to allow the case to proceed fairly and should not be such that a party feels a license to litigate.

[71] Regarding Part 1 of the test, the court in Stuart said at paragraph 11:

11. Certainly the proof of the necessity of interim disbursements would be critical to the successful claim. The claimant must clearly demonstrate that the disbursements are necessary and reasonable given the needs of the case and the funds available. In particular, if an expert is the subject of a requested disbursement, the claimant must demonstrate there is a clear need for the services of said expert.

[72] In the case of Ludmer v. Ludmer, Mesbur J. expanded on that, taking subsequent cases into account as well. She found evidence concerning a claim for interim disbursements was deficient where:

1. There was no affidavit from counsel regarding outstanding fees;
2. There was no evidence of the prospective costs of the case.

[73] Consequently, the claim for interim costs was dismissed. There was a similar result in Beasley v. Beasley [4].

[74] The applicant focused on the lack of disclosure as a key consideration in granting interim disbursements. Indeed, various cases touch on this, usually in situations where funds are requested to hire experts to review the other side’s evidence to determine income. This is not such a case. There is no suggestion that the respondent’s income is not reflected in his income tax information.

[75] The history of this case was outlined at the outset of these reasons, showing how it has suffered from a lack of both a focus on the issues and of the continual involvement of counsel. It has not unfolded as quickly as it should have. However, I am not persuaded that the applicant needs interim disbursements because of a lack of disclosure from the respondent. Reviewing the file, despite there being several events (i.e. conferences or motions) in it, the first to do with disclosure was the respondent’s notice of motion returnable October 13, 2016 seeking financial disclosure from the applicant. Then there was the consent order of February 21, 2017, by Rivard J. for disclosure from the respondent. It was obtained on written materials filed, including a consent, indicating that there was agreement to what was needed to be disclosed. I see no further references to disclosure or the lack thereof by the respondent. Even the current Notice of Motion of the applicant does not seek further disclosure. On the other hand, the respondent’s current Notice of Motion does seek disclosure from the applicant. Also, if there is outstanding disclosure, rule 13 (11) is available.

[76] The available information certainly indicates that there is a financial imbalance between parties. Also, the applicant’s claims are, on their face, meritorious, at least in so far as support is concerned. While I appreciate that there is a requirement to “level the playing field”, having found that the applicant has not satisfied the first branch of the Stuart test, I would dismiss the claim for interim disbursements without prejudice to a further, properly supported, claim being made.

SECURITY FOR COSTS

[77] Next, the applicant sought security for the costs associated with this proceeding.

[78] Subrules 24(13) to (17) of the Family Law Rules set out the court’s jurisdiction to order security for costs and provide:

(13) A judge may, on motion, make an order for security for costs that is just, based on one or more of the following factors:

1. A party ordinarily resides outside Ontario.
2. A party has an order against the other party for costs that remains unpaid, in the same case or another case.
3. A party is a corporation and there is good reason to believe it does not have enough assets in Ontario to pay costs.
4. There is good reason to believe that the case is a waste of time or a nuisance and that the party does not have enough assets in Ontario to pay costs.
5. A statute entitles the party to security for costs. O. Reg. 114/99, r. 24 (13) .

(14) The judge shall determine the amount of the security, its form and the method of giving it. O. Reg. 114/99, r. 24 (14) .

(15) Until the security has been given, a party against whom there is an order for security for costs may not take any step in the case, except to appeal from the order, unless a judge orders otherwise. O. Reg. 114/99, r. 24 (15) .

(16) If the party does not give the security as ordered and, as a result, a judge makes an order dismissing the party’s case or striking out the party’s answer or any other document filed by the party, then subrule (15) no longer applies. O. Reg. 322/13, s. 14.

(17) The amount of the security, its form and the method of giving it may be changed by order at any time. O. Reg. 114/99, r. 24 (17) .

[79] The applicant submitted that security for costs should be granted on the fourth factor, that there is a good reason to believe that the case is a waste of time and that the respondent does not have enough assets in Ontario to pay costs following the trial of this matter, which she predicts will be days long with significant costs on top of the arrears of child support that the respondent has to pay. The applicant also alleges that the respondent has not provided proper financial disclosure which has caused these proceedings to run for months longer than they should have.

[80] The respondent took the position that none of the subsection 24(13) factors apply in this case. With respect to the fourth factor, he notes that it is in fact the applicant’s case, not a situation where the respondent has brought unnecessary, frivolous or nuisance proceedings.

[81] I note that the only costs order made in this case to date is dated October 13, 2016, requiring the applicant to pay costs of $1,250.00 on a motion. It is uncontroverted that those costs have not been paid.

[82] I have already outlined the procedural background of this case and the predecessors. In hindsight this case would have benefitted from case management from an earlier point.

[83] A review of the file does not bear out the allegation that a lack of financial disclosure by the respondent has caused these proceedings to be longer than they should have.

[84] There is a Certificate of Financial Disclosure by the respondent, dated and filed in October, 2015, referencing his income information for 2011 through 2014. Subsequently, as previously noted, there was a motion by the respondent seeking disclosure from the applicant, resulting in a consent order. In early 2017, the parties filed for a consent order for the respondent to produce further financial disclosure. There is an extensive Certificate of Financial Disclosure by the respondent dated February 22, 2019, covering 2009 through 2013. Conversely, there are no Certificates of Financial Disclosure by the applicant on the file. There is no request in the applicant’s current Notice of Motion, which predates the aforementioned certificate of the respondent for further disclosure, generally or specifically, with the possible exception of some insurance which has been dealt with on consent. I see no other motions in the file wherein the applicant sought disclosure.

[85] The applicant contends that, given the support arrears owed by the respondent, the respondent would be unlikely to be able to pay a costs award after a trial of this matter.

[86] First, this assumes that there will be a trial. However, most cases settle short of trial.

[87] Second, this assumes that there would be a costs award in favour of the applicant. There is agreement at least that retroactive and ongoing child support be re-calculated according to the respondent’s true income. There appears to be a range of issues involving entitlement, quantum and duration of support. In which party’s favour each would be resolved remains to be seen.

[88] Third, the present case was begun by the applicant as a net family property equalization case. The applicant alleged that the parties had assets at separation which were not equalized and which the respondent kept. She alleged in the application that the respondent has many assets, including a home and vehicles. The respondent’s documents take issue with that. The case has proceeded as a support case. Whether or not the respondent has property sufficient to satisfy a costs award has not been established. The applicant’s positions on the amount of property the respondent has are mutually contradictory. The respondent does appear to be capable of earning an income with which to pay costs, if required, however.

[89] Given the above, I am not persuaded that the respondent should be required to post security for costs.

CERTIFICATE OF PENDING LITIGATION

[90] The applicant submits that a Certificate of Pending Litigation is available under section 103 of the Courts of Justice Act and Rule 42 of the Rules of Civil Procedure (which would be applicable because of Rule 1(7) of the Family Law Rules). The respondent agreed that a Certificate of Pending Litigation may be had in the proper circumstances. The applicant sought a certificate on the grounds that the subject property appears to be the respondent’s only real property, that the respondent is likely to defeat the applicant’s rights under the Divorce Act, and therefore to secure the applicant’s financial interests resulting from these proceedings.

[91] Rule 42.01(2) states:

(2) A party who seeks a certificate of pending litigation shall include a claim for it in the originating process or pleading that commences the proceeding, together with a description of the land in question sufficient for registration.

[92] A Certificate of Pending Litigation was not sought in this application. Nor was there a description in the Application of any land beyond “a home in Lorraine (sic) Twp., North Cobalt”. That is fatal. It does not help that the motion material includes land registration documents recording the respondent as the owner of a parcel of land in “Lorrain”, in the District of Timiskaming since 2012/08/24, nor that the applicant’s motion sought a Certificate “against any and all real property owned in part or in whole by respondent Joel Malette, including, inter alia, the property owned by the respondent, Joel Malette located in North Cobalt, Ontario”.

[93] Nevertheless, I will add the following.

[94] The application claims a net family property equalization, but provides no clear indications of the assets involved, their values, who would receive an equalization payment, or its amount. The respondent’s answer states that the equalization had already been done, to the applicant’s benefit. The provision to the applicant of 100% of the equity from the disposition of the matrimonial home in Garson, Ontario, is specifically mentioned. There was no reply challenging this. So, it is uncertain whether equalization is still a live issue and whether a Certificate of Pending Litigation would be appropriate with respect to that.

[95] Furthermore, the Certificate of Pending Litigation is sought to protect the applicant’s rights under the Divorce Act. That Act, unlike the Family Law Reform Act, does not deal with property equalization. It does deal with support. If the Certificate of Pending Litigation is being sought to secure payment of support, that motion must fail because such certificates are not to be so used. [5]

AGREED UPON MATTERS

[96] The parties agreed to an order that counsel for the applicant be permitted to communicate directly with AXA Insurance Canada relating to any and all coverage claims made by the respondent.

[97] The parties also agreed to an order that they execute the Canada Revenue Agency form to authorize a representative, specifically naming the opposing counsel as the representative, to be granted access to income tax information of the opposing party by telephone and in writing (no online access) and that the signed authorizations shall be provided to the other party within 5 days of this order.

SUMMARY

[98] In summary, the court orders as follows:

1. The applicant shall serve and file her Application, amended to state the issues that she intends this case to deal with, within 30 days.
2. The respondent shall have 30 days after receipt of service of any amended Application to serve and file an amended Answer/Claim by Respondent amended to respond to the amended Application and to state the issues that he intends this case to deal with.
3. The applicant shall have 10 days after receipt of service of any amended Answer/Claim by Respondent to serve and file a Reply.
4. The temporary order of December 8, 2015, shall be varied so that the respondent shall pay the following Child Support Guidelines table amount of child support for each year, commencing on January 1 of that year and payable on the first each month of that year, to and including December 1: a. For 2016, $878.00 based on an annual income of $99,690.00; b. For 2017, $1,462.00 based on an annual income of $172,584.00; c. For 2018, $1,011.00 based on an annual income of $112,679.00; d. For 2019 and thereafter, $1,011.00 per month based on a projected annual income at the 2018 level of $112,679.00 subject to variation to accord with the actual income when it becomes known.
5. The temporary orders of December 8, 2015 and October 13, 2016 shall be varied so that the respondent shall pay the following spousal support guideline mid-range amounts of spousal support to the applicant for each year, commencing on January 1 of the year and payable on the first of each month of that year to and including December 1: a. For 2016, $1,532.00 per month based on the respondent’s annual income of $99,690.00 and the applicant’s annual income of $18,756.00; b. For 2017, $3,693.00 per month based on the respondent’s annual income of $172,584.00 and the applicant’s annual income of $18,656.00; c. For 2018, $1,938.00 per month based on the respondent’s annual income of $108,242.00 and the applicant’s annual income of $11,000.00; d. For 2019 and thereafter, $2,413.00 per month based on a projected annual income of $108,242.00 for the respondent and $0 for the applicant, subject to variation to accord with the actual incomes when they become known.
6. Counsel for the applicant shall be permitted to communicate directly with AXA Insurance Canada relating to any and all coverage claims made by the respondent.
7. The parties shall execute Canada Revenue Agency forms to authorize a representative, specifically naming the opposing counsel as the representative, to be granted access to income tax information of the opposing party by telephone and in writing (no online access) and the signed authorizations shall be provided to the other party within 5 days of this order.
8. The balance of the claims for relief are dismissed.
9. If the parties are not able to agree on costs, despite the mixed success, each has 30 days to serve and file costs submissions limited to 3 double-spaced pages.

The Honourable Justice J. Wilcox Released: June 4, 2019