BARRIE COURT FILE NO.: FC-18-157 DATE: 20190606 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Carlos Brito Applicant – and – Maria Luisa Moniz Respondent
Counsel: Ashley Taunton, for the Applicant Jessica Mor, for the Respondent
– and –
The Director for the Family Responsibility Office for the Interjurisdictional Support Orders Enforcement Unit Heather Puchala Third Party
HEARD: March 7, 2019
Judgment
McDermot J.
Introduction
[1] On March 7, 2019, I heard argument concerning the Applicant’s request for confirmation of a provisional order made in the Alberta Court of Queen’s Bench on August 24, 2017, under ss. 18 and 19 of the [Divorce Act][1]. On that date, Inglis J. made an order reducing child support payable by Mr. Brito to Ms. Moniz (formally Ms. Brito) to $162 per month, and retroactively reducing child support as set out in the order. The court ruled that there had been an overpayment of child support of $18,000 which was applied to spousal support owing. Spousal support was stayed, although it was unclear as to whether it was intended that this obligation come to an end pursuant to the order.
[2] The order made by Inglis J. varied an order made in Ontario some time ago. On August 20, 2009, Bielby J. ordered that Ms. Moniz have custody of the two children of this marriage, Brendan and Vanessa, who are now 23 and 17 years of age, respectively. Bielby J. ordered that Mr. Brito pay child support of $1,073 per month based upon an imputed income of $72,800, retroactive to November 13, 2008. As well, spousal support was ordered in the amount of $800 per month.
[3] That support order was never honoured. By the time that this matter was placed before Inglis J. in Alberta, arrears, interest and penalties had accrued over the years in an amount of more than $145,000. At least one of the children has aged out and, at a case conference on October 2, 2018, support for Brendan was terminated.
[4] In 2017, Mr. Brito commenced an application to vary the Bielby J. order. Ms. Taunton and her client had originally intended that this matter proceed, not on a provisional basis, but to a final conclusion in the Alberta courts. Ms. Moniz had filed a responding affidavit in the Alberta proceedings requesting that the matter be dismissed and that the matter continue in Ontario, where she resides.
[5] Inglis J. determined that the matter should proceed on a provisional basis only, under ss. 18 and 19 of the [Divorce Act][1]. She noted that Ms. Taunton had “brought an extremely complex issue to chambers” [2] and the court made a provisional order on the basis of Mr. Brito’s affidavit without an oral hearing. Inglis J. determined that child support be reduced to $162 per month based upon Mr. Brito’s disclosed income of $17,919 and based upon there being only one child of the marriage still remaining dependent on the parties. She stayed enforcement of spousal support and declared that there had been an $18,000 overpayment of child support which she applied to spousal support arrears.
[6] It took until April 12, 2018, to bring the matter before the court for a written hearing in Barrie, Ontario. I scheduled a case conference to deal with process on October 2, 2018, and at that time, I determined that the matter would not be remitted back to Alberta, at least in respect of the issue of the retroactivity of the order and the criteria under S. (D.B.) v. G. (S.R.), [2006 SCC 37], [2006] 2 S.C.R. 231. I also requested the file from Brampton, in order to determine the basis of the original order. I have now received that file, and the matter proceeded to argument on March 7, 2019. As in Alberta, no oral evidence was led. Both parties filed further affidavits, and Mr. Brito made only some of the disclosure requested by Ms. Moniz.
[7] For the reasons set out below, I have determined that the order of Inglis J. shall be confirmed only in part.
Analysis
[8] Counsel for the Respondent wife argued vigorously that the order of Inglis J. not be confirmed on two grounds. Firstly, Ms. Mor argued that the process under ss. 18 and 19 were not adequate to address this matter, and she suggested that the court dismiss the matter, based upon the fact that the two-hearing process under those sections was insufficient to allow confirmation. Secondly, she suggested that, even if the process were adequate, Mr. Brito’s evidence lacked credibility and was, in fact, deceptive. She says that I cannot confirm the order made by Inglis J. because the evidence does not support confirmation.
[9] Therefore, the two issues placed before the court are as follows:
(a) Does the receiving court have discretion to refuse consideration of the request for confirmation because the bifurcated process under ss. 18 and 19 of the [Divorce Act][1] does not permit adequate consideration of the support issues before the court?
(b) Does the evidentiary record provided by the Applicant warrant confirmation of the order of Inglis J. under s. 19 of the [Divorce Act][1]?
Court’s Discretion re Confirmation
[10] This is a confirmation hearing under s. 19 of the [Divorce Act][1]. It is the culmination of a process permitted under that statute in support variation proceedings where the moving and responding parties each live in different provinces. Under s. 18(2) of the [Divorce Act][1], the party seeking relief files his or her motion to change in the province in which they reside. The court in that province determines whether the issues can be adequately addressed by way of the two-part process called for in the Act, after which the court holds a hearing, and a provisional support variation order is made. That order has no effect until it is confirmed by the province in which the responding party resides. Section 18(2) is the crux of the proceeding, and it reads as follows:
(2) Notwithstanding paragraph 5(1)(a) and subsection 17(1), where an application is made to a court in a province for a variation order in respect of a support order and
(a) the respondent in the application is ordinarily resident in another province and has not accepted the jurisdiction of the court, or both former spouses have not consented to the application of section 17.1 in respect of the matter, and
(b) in the circumstances of the case, the court is satisfied that the issues can be adequately determined by proceeding under this section and section 19,
the court shall make a variation order with or without notice to and in the absence of the respondent, but such order is provisional only and has no legal effect until it is confirmed in a proceeding under section 19 and, where so confirmed, it has legal effect in accordance with the terms of the order confirming it.
[11] Section 18 goes on to provide for rules for the transmission of the order and evidentiary record to the province where the responding party resides. Suffice to say, it appears that an evidentiary record was prepared and forwarded to the Attorney General for Ontario and this record was placed before the court at the hearing on March 7, 2019. That record consisted of the Provisional Order of Inglis J., the Affidavit of Mr. Brito, and his Disclosure Statement, both dated June 22, 2017, and the transcript of the argument before Inglis J. and her comments made at that hearing on August 24, 2017; as the matter was in Chambers, no evidence was taken beyond that of Mr. Brito’s affidavit.
[12] The second part of the process is set out in s. 19 of the [Divorce Act][1]. Effectively, the Act calls for a bifurcated process, with a second hearing in the province in which the responding party resides. Upon receipt of the record, the Attorney General for the receiving province transmits the record to the Clerk of the Superior Court where the responding party resides and a hearing is set down for confirmation of the order. I have already outlined that this was done, and that the confirmation hearing took place on March 7, 2019, nearly two years after the original hearing before Inglis J.
[13] Section 19 sets out the powers of the court in the confirmation hearing. Essentially, the court first determines whether the matter should be remitted back to the court originally hearing the matter in order to obtain further evidence; this would presumably delay the matter for perhaps another year. Then, if the court determines that this step is unnecessary, or once further evidence has been received, the court holds a second hearing at which the respondent can raise any issues that he or she could have in the original variation proceeding. The court must then either confirm the order in whole or in part, or alternatively refuse to confirm the order. That puts an end to it, as this is the final word in the variation proceedings under s. 18 and 19 of the [Divorce Act][1]. The relevant portions of s. 19 of the [Divorce Act][1] read as follows:
19 (1) On receipt of any documents sent pursuant to subsection 18(4), the Attorney General for the province in which the respondent is ordinarily resident shall send the documents to a court in the province.
(2) Subject to subsection (3), where documents have been sent to a court pursuant to subsection (1), the court shall serve on the respondent a copy of the documents and a notice of a hearing respecting confirmation of the provisional order and shall proceed with the hearing, in the absence of the applicant, taking into consideration the certified or sworn document setting out or summarizing the evidence given to the court that made the provisional order.
(5) In a proceeding under this section, the respondent may raise any matter that might have been raised before the court that made the provisional order.
(6) Where, in a proceeding under this section, the respondent satisfies the court that for the purpose of taking further evidence or for any other purpose it is necessary to remit the matter back to the court that made the provisional order, the court may so remit the matter and adjourn the proceeding for that purpose.
(7) Subject to subsection (7.1), at the conclusion of a proceeding under this section, the court shall make an order
(a) confirming the provisional order without variation;
(b) confirming the provisional order with variation; or
(c) refusing confirmation of the provisional order.
(7.1) A court making an order under subsection (7) in respect of a child support order shall do so in accordance with the applicable guidelines.
[14] Courts in Ontario have complained often and loud about this bifurcated process. In Chree v. Chree, [2015 ONSC 6480], Pazaratz J. conducted an exhaustive analysis of the problems concerning ss. 18 and 19 and the bifurcated process thereunder. He noted, at para. 9, that the process, whereby one judge hears the evidence of the applicant in one province, and the another hears the evidence of the respondent in another, creates an almost “impossible task” for Canadian judges who are:
(a) Accustomed to hearing both sides of the story at the same time.
(b) Unaccustomed to wading into the realm of advocacy, by leading or cross-examining the evidence.
[15] He noted that credibility issues are almost impossible to resolve within the bifurcated process. He said that “the lack of cross-examination of either party undermines each court’s ability to fully and consistently assess credibility” and that there are inherent difficulties where “the first judge fully believes the Applicant, and the second judge fully accepts the contradictory evidence of the Respondent” (at para. 23). He noted that, while the originating court has the job of determining whether the process can adequately address the issues before the court under s. 18(2), the receiving court, which has more information than the first court, should retain jurisdiction to also address this threshold question. He stated that “neither judge should simply presume they are stuck with this cumbersome and imprecise process, if it becomes clear at either stage that the issues cannot be adequately determined through the provisional order process” (at para. 21).
[16] In Embree v. Persaud, [2018 ONSC 7747], M.Z. Charbonneau J. did exactly that. He was asked to conduct a confirmation hearing in a matter remitted to Ontario by the New Brunswick Court of Queen’s Bench. It involved an applicant who asked for a variation of spousal support resultant from her PTSD issues. She had two experts testify in New Brunswick and the respondent had an expert testify in Ontario. At para. 9, Charbonneau J. said:
I am of the view that the issue of the wife's PST (sic.) and its cause cannot be adequately determined by a bifurcated hearing. It is impossible to properly assess the experts' evidence and the new factual evidence filed by the parties at such a hearing.
[17] He, therefore, determined that the “threshold requirements of section 18(2) have not been met” and declined to confirm the provisional order. The order was without prejudice to the applicant’s right to bring a new application to be addressed by both parties before the same judge hearing the same evidence at the same time.
[18] In Cox v. Cox, [2009 BCSC 1609] (cited in Chree), the court adjusted the process called for under the [Divorce Act][1] in a manner similar to that followed in the present case. In that case, the court permitted the applicant’s Alberta solicitor to participate by telephone in the confirmation hearing which took place in British Columbia. Griffin J. said that she did this based upon the “inherent jurisdiction of the court to control its own process” and, at para. 21, said that she took this step because:
My approach was taken to avoid the situation of each party being heard in only one court at a time, bouncing back and forth between the courts of two provinces without a single judge ever hearing from both parties at once. In C. (D.L.) v. C. (C.W.), [2006 ABQB 350], 410 A.R. 127 (Alta. Q.B.), Bielby J. of the Alberta Court of Queen's Bench noted the practical problems that can occur with the provisional order process. In that case, the matter yo-yoed between the British Columbia and Alberta courts five or six times, and on each occasion, the respective courts heard from only one of the parties.
[19] In the present case, it is clear that the process is procedurally inadequate in addressing the issues before the court, which involves Mr. Brito’s evidence as to his inability to work or to make the income attributed to him by Bielby J., in 2009. Both his evidence as to the changes in circumstances since the date of the order and his evidence as to his inability to work, are wholly within his knowledge. Had this case been heard before a single judge, Mr. Brito would have given evidence-in-chief and would thereafter, have been cross-examined on those issues by counsel. Because the court must rely almost solely on Mr. Brito’s evidence to grant the motion to change, especially where the Respondent lives in another province and knows nothing of Mr. Brito’s circumstances, most of the heavy lifting in responding to a case such as this lies in the cross-examination of the moving party and his documentary evidence. That was, of course, impossible in the present case and indeed, neither party gave viva voce evidence. The process did not allow for an adequate response by Ms. Moniz to the variation proceedings brought by Mr. Brito.
[20] That being said, the determination of the court as to the adequacy of the process under s. 18(2)(b) of the [Divorce Act][1] is not necessarily only concerned with the evidentiary issues before the court. This two-hearing process was also, I am sure, put into place to address the hardship that variation proceedings under the Act impose on either a moving or responding party in this country, with vast distances and resultant travel costs, especially for parties with financial issues, as is often the case in proceedings such as the present case. From the record of the proceedings before Inglis J., it was apparent that the financial circumstances of the parties were uppermost in her mind in considering what procedure to follow. The issues under s. 18(2)(b) were argued by both counsel for Mr. Brito and for Ms. Moniz; Inglis J. determined that neither party could afford to litigate the matter in the other’s province and that the two-part process was therefore both desirable, and therefore adequate, to address the issues in this case. Under the scheme of ss. 18 and 19, the judge making the provisional order has the final say in deciding the issue of whether the bifurcated process is adequate; nowhere is the power given to the receiving court to revisit that issue (as Pazaratz J. suggested should be the case).
[21] It is also noted that in no case that I was referred to, other than in Embree, did the receiving court decline to consider confirmation of the order. In Chree, notwithstanding his expressed concerns, Pazaratz J. considered the matter and declined to wholly confirm the order of the Nova Scotia court. In Cox, after hearing from counsel in Alberta, Griffin J. refused to confirm the Alberta order because of the failure by the applicant to be wholly frank with the evidence that he presented to the Alberta court. Both of these courts determined that, notwithstanding the flaws in the process dictated by ss. 18 and 19 of the [Divorce Act][1], the substantive sections of s. 19 of the Act require the court to confirm the order in whole or in part, or to refuse to confirm the order. The “inherent jurisdiction of the court over its own process” as mentioned by Griffin J. is procedural only; it does not permit the court to override s. 19(7) of the [Divorce Act][1] which states that, assuming that the court does not require further evidence from the originating court, the court “shall” then either confirm the order, with or without changes, or refuse to confirm the order. The receiving court must make a determination as best it can, and if the evidentiary record is inadequate to allow for confirmation, then the court must refuse to confirm the order as done in Cox. If Embree suggests that this court has the jurisdiction to refuse to confirm the order based solely upon the inadequacy of the bifurcated process, I must respectfully disagree.
[22] Further, it is noted that the Respondent’s counsel argued before Inglis J., at least in the alternative to the request that the matter be addressed in Ontario only, that the bifurcated process be followed. It is difficult for the Respondent’s counsel to now argue that the two-hearing process is not adequate to address the variation proceedings commenced by the Applicant.
[23] Therefore, as suggested by Ms. Puchala on behalf of the Director of the Family Responsibility Office, ss. 18 and 19 of the [Divorce Act][1] is presently the only process by which to change support orders where the parties reside in different provinces. Until Parliament changes the legislation [3], the receiving court is required to consider whether to remit the matter back to the originating court for further evidence, and if not, to determine whether the order is to be confirmed in whole or with changes, or whether the request to confirm will be dismissed. There is no jurisdiction to depart from this process or reconsider the issue of the adequacy of the process at the confirmation hearing. This aspect of the argument fails, and the court will therefore, review the matter on its merits, considering the material placed before the court by Mr. Brito.
Merits of the Applicant’s Variation Claim
[24] The Applicant seeks to reduce his child support and eliminate his spousal support order. He obtained a provisional order in the Alberta Court of Queen’s Bench which effectively granted this relief.
[25] To change spousal and child support under the [Divorce Act][1], the Applicant firstly needs to demonstrate a material change in circumstances which would warrant a variation. In respect of this, the applicable portions of s. 17, the section permitting a change in support, reads as follows:
(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.
(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.
[26] It is clear that any change in circumstances must have occurred since the making of the order: see Gray v. Rizzi, [2016 ONCA 152], 129 O.R. (3d) 201. In this matter, income for support purposes was set based upon Mr. Brito’s income of $72,800 per year (which he acknowledges), from before he left Ontario in 2007.
[27] Mr. Brito claims he made nothing like that amount when he moved to British Columbia. However, he does not deny that he received notice of the proceedings (he says that he “does not recall” getting copies of the pleadings, but he also acknowledges that court documents were given to him by his sister). He did not file an Answer or a Financial Statement in Ontario as required by the [Family Law Rules][4]. He acknowledges that he knew that divorce proceedings were underway and he “chose not to take any steps” and allowed himself to be noted in default [5]. He cannot complain about the income amount that was set by the court in 2009 when the uncontested trial was heard; nor can he complain about the amount set by Bielby J. for spousal and child support. In point of fact, Mr. Brito specifically acknowledges that he is not seeking to set aside the Bielby J. order [6].
[28] Mr. Brito says that, after moving to Vancouver, he actually made about $33,673 in 2008. Since then his taxable income has never reached that amount. He says that he only earned $21,113 in 2009, and in 2010, he could not find work in British Columbia and moved to Edmonton; that year he earned $11,323.
[29] Mr. Brito deposed that he subsequently fell on hard times. He says that he began to drink and ended up on the streets of Edmonton, collecting cans and panhandling. He says that he earned no income in 2011 and 2012. His evidence is that he only sobered up after meeting his fiancé, Angela Cortes, in late 2012.
[30] The Applicant says that since he went to Western Canada, he has been unable to earn income anywhere near $72,800 per year. However, I note that at the time the order was made, Mr. Brito was working in Vancouver as a bricklayer and was making income in the range of about $21,000 per year. The issue for this court in determining a change in circumstances is not whether the support was set on the basis of a correct income amount; Mr. Brito is not seeking to challenge the order or the findings made by Bielby J. The issue for this court is whether the Applicant’s financial circumstances changed since the date of the order that he seeks to change (August 20, 2009) when he was making $21,000 per year in Vancouver. Until that change in circumstances, the Bielby J. order stands. This is notwithstanding the fact that he was not making anything like $72,800 per year when the order was made, which fact is not relevant to when and how the Applicant’s circumstances changed within the meaning of the [Divorce Act][1].
[31] In 2010, Mr. Brito moved to Edmonton. He suffered from alcohol related issues. His income dropped to one-half of what he made in the previous year. In the next two years, he lived on the streets of Edmonton and earned no income whatsoever. Based upon his income in 2010, 2011, and 2012, he would not have had to pay table child support under the Child Support Guidelines.
[32] I have no reason to doubt Mr. Brito’s evidence about the circumstances which took him out of the workforce in those years. His evidence that he met Ms. Cortes in late 2012 is consistent with the Instagram photos which were filed showing him with Mr. Cortes in late 2012. I find that the Applicant has demonstrated a material change in circumstances as of 2010 when he left Vancouver and moved to Edmonton. Therefore, the earliest date for any change in either child or spousal support should be as of January 1, 2010, in which year, Mr. Brito made less than the amount which would warrant payment of support under the Child Support Guidelines. During those years, his income was equal to or less than that of Ms. Moniz, who has been receiving CPP income of $10,000 per annum, and less than the floor for spousal support under the Spousal Support Advisory Guidelines. Prior to then, there is no change in circumstances, and the terms of the Bielby J. order remain unchanged until that date.
[33] My major concern is not the veracity of the evidence provided by Mr. Brito prior to 2012; it is what he has asserted has occurred since then. I find his evidence of his present circumstances, and his circumstances since he says he sobered up, simply unbelievable. His evidence is often contradictory and unreliable. The inconsistencies in his evidence, and several obvious untruths, as well as the failure to make full disclosure call into question Mr. Brito’s entire evidentiary narrative. I say this for the following reasons.
Mr. Brito’s Evidence About His Income Is Inconsistent and Unreliable
[34] Mr. Brito says that he has worked as a general labourer for a company owned by Ms. Cortes named CBA Construction. He says that he makes about $16 per hour or so, and that his income is now in the range of about $17,000 per annum. He has since applied for disability support, and has filed the medical information provided by his doctor to the Alberta program for Assured Income for the Severely Handicapped (AISH). He says that he should be paying child support of only about $143 per month.
[35] My difficulty is that Mr. Brito has been less than forthcoming with evidence about both the company he works for and the work that he does. Ms. Cortes refuses to provide any evidence about the company that she owns, and there is no way that the court can determine what kind of income that company makes. It appears, however, that Mr. Brito has arranged for the same type of situation that he had in Ontario with Ms. Moniz prior to separation, which, according to his own evidence, was a construction or bricklaying company that he owned along with Ms. Moniz from which he made substantial income. The material filed by Mr. Brito contains no evidence from Ms. Cortes as to the circumstances of CBA Construction, and as to its income, assets, or liabilities. I note that this is a company the name of which may indicate a family venture, as the initials of the name “CBA” echo the initials of the names of the Applicant and Ms. Cortes (“Cortes-Brito-Angela”). Ms. Cortes is correct that she does not have to disclose anything about her company to the court in these proceedings; she did not say, however, why she refuses to do so, and the logical inference is that she may be intent upon covering up the circumstances of that company to assist Mr. Brito in hiding his income.
[36] Moreover, Mr. Brito has not provided the disclosure that Ms. Moniz has requested. He says that he cannot afford to do so. Ms. Moniz asked for bank and credit card statements from 2012 to present. Outside of the material in the hands of Ms. Cortes regarding CBA Construction, which she has refused to provide, and outside of two statements from 2013, Mr. Brito has stated that he cannot afford to obtain or provide bank statements prior to January 2017. He has not provided all of his credit card statements, only those as outlined in his affidavit, of which the earliest is from 2016. The bankruptcy documents provided in his affidavit are incomplete [7], and specifically do not include the required statement of the bankrupt’s affairs setting out his debts and income which would have indicated his own business activities during the years that the Applicant says that he was living on the streets in Edmonton, earning no income.
[37] Mr. Brito says he cannot afford to obtain documentary disclosure for these proceedings, but he can afford trips to Columbia, Portugal, and France, some of which he has taken since the commencement of his variation claim. Although he says that Ms. Cortes has assisted him financially, paying for his trips and paying for his daughter to fly to Columbia in 2017, Ms. Cortes has obviously chosen not to assist him by providing disclosure concerning CBA Construction or to assist him with obtaining the disclosure that Ms. Moniz requested.
[38] As well, Mr. Brito says that he has been attempting to change his support since 2013, and he has been unable to because of the unavailability of legal assistance. However, he has had an incentive to reduce income throughout that time, and the suspicion is that he has arranged his affairs to do exactly that, by placing the income from the corporation into his partner’s hands, and having only a nominal income paid to him throughout.
[39] It is up to Mr. Brito to satisfy the court as to his income since 2012, and the material filed by him does not permit me to do so.
Mr. Brito’s Lifestyle Is Inconsistent with His Income
[40] Mr. Brito says that he is separated from Ms. Cortes, and that they are co-parenting their child, Nina, who lives with Ms. Cortes. Mr. Brito claims to live in relative poverty in a basement apartment costing him $400 per month. He says that he pays support by paying his daughter’s day care expenses, but does not provide the amount of those day care expenses [8].
[41] However, the Instagram photographs filed by Ms. Moniz demonstrates a completely different lifestyle. They disclose a number of trips to Columbia, the most recent of which may have been as late as 2019, as well as trips to Portugal and to France. There are numerous smiling images of Mr. Brito and Ms. Cortes enjoying visits to exotic locations. There was a post from Ms. Cortes’ mother which congratulates Mr. Brito for acquiring a residence in Columbia. Mr. Brito flew his daughter, Vanessa, to Columbia for a holiday in 2017. Any one of these trips would have used up much of Mr. Brito’s declared income for the applicable year, considering the support that he has been forced to pay through the agency of the Alberta enforcement authorities.
[42] Mr. Brito claims that Ms. Cortes assisted him with these trips or to have paid these trips through points earned by buying gas for company vehicles which he drove when he was working. Outside of the fact that he needed about 300,000 points to go on the trips that Ms. Moniz was able to find out about, that statement does not ring true. Mr. Brito must be driving a lot to earn points to buy flights to Portugal for himself and his daughter, Nina (60,000 points). Yet he claims to effectively be working part-time because of his own health issues, which would mean that he would not be driving very much at all for CBA Construction. As well, Mr. Brito deposes elsewhere that he cannot drive because of his eyesight issues, which again would mean that he is untruthful when he says that he is buying a lot of gas through driving for his employment.
[43] Finally, Mr. Brito was asked to produce his credit card statements. This was his chance to produce the credit card statements for the points’ card through which he purchased his flights. He did not. None of the statements provided appear to be for a travel points card which would have permitted Mr. Brito to buy flights to Portugal, France, and Columbia.
[44] I simply do not believe Mr. Brito when he says that the trips that he has taken were purchased through a points card which reflected his at work gas purchases. This means that, assuming Mr. Brito is telling the truth when he says his finances are completely separate from those of Ms. Cortes, that he is paying for the trips from his own resources, which remain undisclosed to this court.
Mr. Brito Is Dishonest When He Says That Ms. Cortes Is No Longer His Partner
[45] Mr. Brito began this application stating that he was in a relationship with Ms. Cortes beginning in late 2012, that he became engaged in 2013 and that they had a child together. Both Mr. Brito and Ms. Cortes now say that that they are no longer engaged, and are only friends. They both say that their relationship came to an end in 2014. Mr. Brito says that their child, Nina, lives with her mother and visits with him. He says he lives in a basement apartment. He says that he pays child support by paying the day care expenses for Nina.
[46] The assertion by Mr. Brito that he separated from Ms. Cortes is firstly belied by a number of the Instagram photographs which were attached to Ms. Moniz’ affidavit. Specifically, there is a photograph from a trip that Mr. Brito and Ms. Cortes took to Paris, France, in April 2016, about two years after these individuals say that their relationship was over. They are standing in front of the Eiffel Tower and they are embracing, kissing each other and obviously very much still together [9]. That is not the only photograph taken well after 2014 that shows that they are still in relationship. Another photograph shows them holding hands together with the backdrop of city lights; the photograph was taken in January 2017, and it is obvious from the dress of the parties that they were not in Edmonton in January.
[47] As well, Mr. Brito’s address remains uncertain. He says that he has long since moved out of the home that Ms. Cortes owns on 126 Street, in Edmonton, and that he lives in a basement apartment on 114 Street NW in Edmonton.
[48] The disclosure provided by the Applicant shows numerous addresses used by him. His income tax return gets sent to 20-9228 144 Avenue NW in Edmonton; this is the address of the day care centre that Ms. Cortes runs [10]. His bank statements for his account with TD Canada Trust are also sent there. His Capital One credit card is mailed to the home owned by Ms. Cortes on 126 Street NW; his Home Trust Visa Credit Card appeared to have been also sent to that address. Recently, the address on the Home Trust Visa was changed to an address at 8405 114 Avenue NW, which is presumably where the Applicant has a one-bedroom apartment. However, when that address is searched on 411.ca, it is found to be the address of the Charisma Pentecostal Church [11] and it is simply not believable that the Applicant lives in a church basement.
[49] This is apart from the evidence from the Respondent’s children who have visited Mr. Brito on several occasions recently; both say that Mr. Brito and Ms. Cortes are still together. Brandon says that he lived with both of them for a number of years at the residence owned by Ms. Cortes. Vanessa also says that they live together.
[50] I note that the Applicant complains about the children’s evidence as being hearsay evidence. I note that the Applicant also relies upon hearsay evidence, being the correspondence from his physicians regarding his health issues. He cannot have it both ways, entering hearsay evidence on his own behalf and yet complaining about statements made by the children regarding his living arrangements.
[51] Moreover, one objection to hearsay evidence is that you cannot cross-examine the person providing the evidence to another. That cannot be a valid objection in this proceeding where no one was subject to cross-examination. There is little difference between the hearsay proffered by the Applicant and the affidavits of both of the parties, which contain conflicting and untested evidence. Finally, in light of the fact that the Respondent has no way to determine the Applicant’s living circumstances (other than a budget, he did not file a full financial statement), the hearsay evidence is both necessary (as the children are the only available witnesses as to the Applicant’s living circumstances) and as reliable as the other evidence filed in this proceeding, if not more so.
[52] Finally, I note that in his original Affidavit sworn in this proceeding on June 22, 2017 (the affidavit that Inglis J. relied upon to provisionally vary the order), there was no hint as to when the relationship between Mr. Brito and Ms. Cortes had ended. The suggestion that the relationship ended in 2014 was first raised in Mr. Brito’s Affidavit, sworn September 6, 2018 [12].
[53] In sum, the Applicant’s evidence is inconsistent, and his different addresses show that he maintains a business relationship of some sort with Ms. Cortes. The photographs show a continuing romantic relationship well after both of them say that they are no longer together. I do not believe that the relationship between Mr. Brito and Ms. Cortes is at an end.
Concerns re the Applicant’s Health Issues
[54] In his initial affidavit filed in support of the provisional hearing, the Applicant says that he suffers from arthritis in his hands and that is preventing him from working as a bricklayer.
[55] In his later materials, he filed a “consultation letter” from his doctor dated November 30, 2015. Dr. Abdulsamad confirms an older diagnosis of ankylosing spondylitis (which pre-dated Mr. Brito’s separation from Ms. Moniz), as well as “about 30 minutes of morning stiffness” and “stable iritis” in his right eye [13].
[56] In January 2019, Mr. Brito’s family doctor, Dr. Ismael, filed a report in support of an application for Mr. Brito to receive disability payments under AISH, which I presume is the similar to the Ontario Disability Support Plan. That report confirms “vision loss” and “chronic back pain” related to the ankylosing spondylitis. The document filed states that a report is attached from the Applicant’s rheumatologist, Dr. Abdulsamad (who provided the consultation letter from 2015), but that report was not attached to the exhibit. Dr. Ismael says that Mr. Brito “can not work” because of “back pain” and “vision issues” [14]. The results of this application for AISH assistance were unknown at the date of the hearing.
[57] There is presumably treatment available for these conditions. There is no evidence as to the treatment sought out by Mr. Brito for his medical problems, or as to his prognosis for the future other than the fact that the duration of the symptoms is “indefinite”. There is no evidence as to the results of his application for AISH assistance; anyone can apply for assistance, but the real issue is whether the application was accepted.
[58] Notably, neither doctor spoke of Mr. Brito’s complaint that he had arthritis in his hands, which I would have thought would be part of any application for disability assistance for a bricklayer. He may very well have the medical problems set out in the report of Dr. Ismael, but I do not believe that the Applicant has arthritis in his hands. As with his other evidence, the evidence of the Applicant as to his arthritis in his hands lacks credibility.
Conclusion
[59] Under s. 19 of the [Divorce Act][1], I have four options:
(a) I can remit the matter back to the Alberta court to obtain further evidence;
(c) I can confirm the order without variation;
(d) I can confirm the order with variation; or,
(e) I can refuse to confirm the order.
Remitting the Matter Back to the Alberta Court
[60] It has been more than two years since this matter was before Inglis J. in Alberta. It took a year for the matter to be placed before the court in Ontario, and these confirmation proceedings have also taken about a year. This delay is obviously not in the interests of justice for either party.
[61] If the matter is remitted back to Alberta, it creates a situation which was referred to in Cox as being “yo-yoed” back and forth between the two courts in an effort to get further evidence before the court. That will result in further delay, and the court must ask how much good this will do for any of the parties. What more can be added to the evidentiary record and what cannot?
[62] Firstly, whether there is an oral hearing or not, it is expected that the oral evidence of Mr. Brito will echo what is in his affidavits. And, other than the court ordering that Mr. Brito submit to a cross-examination on his affidavits in Alberta, there is no opportunity for cross-examination of Mr. Brito which is what is lacking in this case. To remit the matter back to Alberta will not achieve the aim of cross-examination of Mr. Brito before this court and will only result in further affidavits containing the same information that has been placed before me.
[63] As well, one crucial piece of evidence is whether the company, CBA Construction, is actually a joint venture between Mr. Brito and Ms. Cortes, and the income and financial condition of that company. Ms. Cortes is correct when she says that she cannot be forced to produce that information other than by way of a summons to her as a witness in Alberta or an order for third party disclosure. However, it is not possible for me to remit the matter back to Alberta for that information, as it is in the discretion of the Alberta Court (which must make the order for third party disclosure) and the order of this court is not binding on Ms. Cortes. And the information as to whether these parties are actually both owners of CBA can only be fleshed out in a trial of that issue, which would have to take place in Alberta. That would be possible if the proceeding were taking place there, but Inglis J. has determined that the order proceed there on a provisional basis only, and her word is final on that issue.
[64] There is little point in further delay of requesting more evidence, considering the difficulties in obtaining the third-party evidence, and the inability of this court to observe the cross-examination of Mr. Brito within the bifurcated process.
Confirmation of Order Without Variation
[65] The Applicant requests that I confirm this order without variation. He relies upon the chart provided in his first affidavit and says that his present income is about $17,000 per annum warranting child support for one child in the amount of $143 per month.
[66] Inglis J. was unable to cast much of a critical eye on this evidence. This matter was brought before her in Chambers, similar to a matter placed on the regular motions list in this jurisdiction. That would have given about an hour of consideration for what she called a “complicated matter”. There was no oral hearing, and no ability for Inglis J. to ask questions of the Applicant to confirm whether his claim was legitimate. Mr. Brito chose to proceed with affidavit evidence only and there has been no oral examination of either party in this proceeding.
[67] It is up to the Applicant to prove his claim whether or not he uses the bifurcated process. The onus remains the same. He must prove on the balance of probabilities, both a change in circumstances and that his income is reduced as set out in his materials.
[68] As well, the evidence supporting the change in circumstances and his financial situation is wholly in his hands. He may, therefore, have a higher duty to provide all necessary materials in making a claim of this nature than in the normal case, as the Respondent has limited ability to obtain and present income information concerning the Applicant, especially where deprived by the process of the right of cross-examination.
[69] I have outlined above, the difficulties with the Applicant’s evidence. It is inconsistent and without credibility. He lied, in my view, about his relationship with Ms. Cortes, as did she. Yet, Ms. Cortes refuses to provide information about what appears to be a family enterprise and Mr. Brito failed to take steps to force Ms. Cortes to provide that information. Much of Mr. Brito’s actual income may reside within that corporation and, certainly, it may very well be that the majority of the family income lies there. As I do not really know what the income from the corporation is, I cannot tell what Mr. Brito’s real income is. It is also completely unclear as to where Mr. Brito lives, as it appears to be more than likely that Mr. Brito and Ms. Cortes still live together. He takes numerous trips outside the country, and has failed to adequately explain how he can afford to do so.
[70] I therefore do not find that the income tax returns correctly reflect Mr. Brito’s income. Notwithstanding requests by Ms. Moniz for disclosure which might shine a light on this, he has failed to provide the evidence necessary to prove on the balance of probabilities that he has had a change in circumstances or a significant reduction in income. This does not permit me to confirm the order as requested.
[71] I, therefore, decline to confirm the order without variation.
Confirmation of Order with Variation / Dismissal of Request for Confirmation
[72] The question under this heading is whether I have sufficient evidence before me to vary the order of Inglis J. and order perhaps another support amount than that set out in her order. Absent this, the application for confirmation of the Inglis J. order must be dismissed.
[73] I have already stated that I am not willing to take Mr. Brito at his word as to the income that he says he made. He has not satisfied me on the balance of probabilities as to the veracity of his evidence concerning his income for the reasons set out above.
[74] I have considered the option of finding that Mr. Brito’s income is in an amount between that found by Bielby J. and that disclosed by Mr. Brito in the chart attached as Schedule A to this endorsement.
[75] Because I am uncertain as to the Applicant’s income, I also have no basis upon which to make any income finding for the Applicant. As stated on a number of occasions by our Court of Appeal, there must be some “rational basis” for imputation of income; I cannot make a finding on what the Applicant’s income actually is without some sort of evidentiary foundation: see Drygala v. Pauli (2002), [], 61 O.R. (3d) 711 (C.A.) at para. 44, and Pustai v. Pustai, [2018 ONCA 785] at paras. 45 to 50. I expect that the same would apply to any suggestion that I find an income amount lesser than that found by Bielby J. but more than as disclosed by Mr. Brito in his income tax returns.
[76] In the present case, I have no income information from the corporation and no means of determining what it is. I only have income as to Mr. Brito’s lifestyle, which cannot be supported by the income that he says he makes. I do not have bank statements or credit card statements which would support his assertion that his income is low and that he lives in relative poverty. I believe that he has been untruthful about certain fundamental facts, including his evidence that he is no longer living with or partnered with Ms. Cortes. In short, I do not believe that Mr. Brito’s income is as he says it is in his income tax returns, and I do not have any evidentiary basis to make some other income finding in order to find that his income is something else.
[77] Other than the questionable income information about Mr. Brito’s income, neither party has provided evidence or submissions as to varying or terminating spousal support as set out in the Bielby J. order. I do know that Ms. Moniz is disabled and receiving CPP benefits. Those benefits confirm that she continues to have an entitlement to spousal support. Mr. Brito has continued to work throughout this period of time. Other than income, there is no basis or evidence provided in this proceeding confirming that spousal support should come to an end.
[78] I note as well that Mr. Brito has not provided the disclosure requested as to his credit card or bank statements or as to his personal circumstances, and this in itself may very well warrant a dismissal of the claim to confirm the Inglis J. order: see Spring v. Spring, [2019 ONSC 179] at para. 31.
[79] I therefore cannot make a finding varying the support as found by Inglis J. because I have no evidentiary basis for doing so. I am, therefore, not willing to vary support based upon a finding as to a reduction in Mr. Brito’s income from that determined by Bielby J., in 2009.
[80] I am willing to make three variations to the order which are as follows:
(a) I am willing to make a finding that between 2010 and 2012, Mr. Brito had little or no income and was not able to pay child support or spousal support during those years. There is no information as to those years other than what Mr. Brito says, and Ms. Moniz had no information about those years. Ms. Cortes was not part of his life then and there is no lifestyle information or other information that would cast doubt on Mr. Brito’s assertions that he was unable to work or earn income due to alcohol abuse and homelessness.
(b) I am also willing to step up Mr. Brito’s income in 2013 as being one-half of that found by Bielby J. In that year, Mr. Brito was returning to the working world, and setting up his corporation with Ms. Cortes. Subsequent to that, in 2014, because of the failure of Mr. Brito to provide sufficient evidence as to his income, I have no choice but to find that Mr. Brito’s income returns to that as set out by Bielby J. and that the child support and spousal support is payable in full under his order, as I have no credible income information for the years subsequent to 2012 or credible evidence as to entitlement or quantum of spousal support.
(c) At the case conference in October of last year, the Applicant had requested an order that child support come to an end concerning Branden, who graduated from high school in July, 2014, and did not attend at any post-secondary educational institution. The statement from the Alberta enforcement authorities appear to confirm that child support for Branden is no longer accruing after July, 2014. However, if it remains necessary, I am willing to bring child support to an end concerning Brendan as of July 2014.
[81] I am not willing to otherwise reduce child and spousal support or to otherwise confirm the order of Inglis J. due to the failure of the Applicant to prove that his income has reduced as alleged.
[82] Therefore, the chart attached to the Applicant’s materials should be amended as follows:
Year Income Living in Province Monthly Child Support Monthly Spousal Support Number of Children Months Annual Child and Spousal Support
2008 $72,800 BC $1,073 $0 2 2 $2,146
2009 $72,800 BC $1,073 $0 2 8 $8,584
2009 $72,800 BC $1,073 $800 2 4 [15] $7,492
2010 $11,323 AB $0 [16] $0 2 12 $0
2011 $0 AB $0 $0 2 12 $0
2012 $0 AB $0 $0 2 12 $0
2013 $36,400 AB $536 $0 2 12 $6,432
2014 $72,800 AB $1,049 $800 2 6 $11,094
2014 $72,800 AB $621 $800 1 6 $8,526
2015 $72,800 AB $621 $800 1 12 $17,052
2016 $72,800 AB $621 $800 1 12 $17,052
2017 $72,800 AB $621 $800 1 8 $11,368
2017 $72,800 AB Total: $89,746
[83] This takes us to the date of the order of Inglis J., which I have been asked to confirm. I do not go beyond that decision, as the only request before me is to confirm that order. However, I specifically refuse to confirm the variation of ongoing child and spousal support as ordered by Inglis J., and therefore ongoing child and spousal support shall continue at $621 and $800 per month respectively.
[84] Obviously, if Mr. Brito has been accepted for AISH Income Assistance, this may be a change in circumstances, which may warrant a variation in the order of Bielby J. This order is, therefore, without prejudice to a further application to vary that order if Mr. Brito has been accepted for AISH, which may be a change in circumstances warranting variation in the order. If Mr. Brito desires, he may bring that application directly to the Ontario courts and, if he desires to change my order, he may bring that matter before me in Ontario.
Order
[85] There will therefore be an order to go as follows:
(a) The application to confirm the order of Inglis J. made August 24, 2017, is dismissed subject to the following:
(i) If necessary, any arrears should be adjusted to reflect that spousal support under paragraph 4 of the order of Bielby J. commences August 20, 2009;
(ii) Paragraph 3 of the order of Bielby J. dated August 20, 2009 is varied to provide that no child support is payable for 2010, 2011 and 2012;
(iii) Paragraph 3 of the said order is further varied to provide that child support shall be reduced to $536 per month for 2013;
(iv) Paragraph 3 of the said order is further varied to provide that, effective July 1, 2014, support shall be payable for one child in the amount of $621 per month;
(v) Paragraph 4 of the said order is varied to provide that no spousal support is payable for 2010, 2011, 2012, and 2013;
(vi) Other than as set out above, the order of Bielby J. dated August 20, 2009, remains in force and effect, without amendment.
(b) This order is without prejudice to the Applicant applying to vary the order concerning any change in circumstances since the date of the order, and specifically, the results of the Applicant’s application for AISH Income Assistance. That application may be made directly to the Ontario courts.
[86] The parties may make submissions as to costs to the judicial secretary in Barrie, the Respondent first and then the Applicant. Submissions shall be on a 10-day turnaround, with the Respondent’s submissions to be provided within 10 days of the date of this endorsement. Costs submissions to be no more than 5 pages in length not including Bills of Costs and any Offers to Settle made in this proceeding.
Mr. Justice J.P.L. McDermot Released: June 6, 2019
Schedule A
| Year | Income | Living in Province | Monthly Child Support | Number of Children | Months | Annual Child Support |
|---|---|---|---|---|---|---|
| 2008 | $33,673 | BC | $524 | 2 | 2 | $1,048 |
| 2009 | $21,111 | BC | $332 | 2 | 12 | $3,984 |
| 2010 | $11,323 | AB | $118 | 2 | 12 | $1,416 |
| 2011 | $0 | AB | $0 | 2 | 12 | $0 |
| 2012 | $0 | AB | $0 | 2 | 12 | $0 |
| 2013 | $11,627 | AB | $78 | 2 | 12 | $936 |
| 2014 | $18,601 | AB | $304 | 2 | 6 | $1,824 |
| 2014 | $18,601 | AB | $166 | 1 | 6 | $996 |
| 2015 | $16,724 | AB | $155 | 1 | 12 | $1,860 |
| 2016 | $17,919 | AB | $162 | 1 | 12 | $1,944 |
| Total: | $14,008 |
Footnotes
[1]: R.S.C. 1985, c. 3 (2nd Supp.). [2]: Transcript of Proceedings in the Alberta Court of Queen’s Bench, August 24, 2017, p. 12. [3]: Bill C-78, an act to amend and replace the present Divorce Act, presently before the Senate after third reading in the House of Commons, eliminates the two-hearing process and contemplates just one hearing, either by affidavit or “telecommunication”. See s. 18.1. [4]: O. Reg. 144/99. [5]: See para. 4 of the Affidavit of the Applicant sworn June 22, 2017, (Tab 1 of V.1 of the Continuing Record). [6]: Counsel for Mr. Brito confirmed this at the case conference and this was mentioned in paras. 11 and 12 of my Endorsement of October 29, 2018. [7]: He has acknowledged that he has his bankruptcy documents, as he found two bank statements with those documents. He has, however, only provided his Certificate of Discharge, but not his Assignment into bankruptcy or the Statement of Affairs which would have listed his debts and income at the time of the bankruptcy: see Ex. J of the Applicant’s affidavit sworn September 6, 2018, found at Tab 12 of V. 2 of the Continuing Record. [8]: Although I am sure they are more than $143 per month, which is what Mr. Brito proposes that he pay in child support to Ms. Moniz. [9]: See Ex. C to the Affidavit sworn by Ms. Moniz on April 6, 2018, (Tab 9 of V. 2 of the Continuing Record). [10]: Ibid., Ex. K. [11]: https://411.ca/business/profile/6120577. [12]: Mr. Brito says that he and Angela “are no longer together” in para. 27 of his Affidavit sworn June 22, 2017, but the affidavit does not state when the relationship came to an end. He only gives 2014 as the ending date of the relationship in the later affidavit. [13]: Ex. K to the Affidavit of the Applicant, sworn September 6, 2018, (Tab 11 of the Continuing Record). [14]: Ex. D to the Affidavit of the Applicant, sworn March 1, 2019. [15]: It is clear from the order of Bielby J. that spousal support was not retroactive while child support was. Therefore, spousal support begins as of the date of his order, August 20, 2009. [16]: Under the 2011 guidelines, no child support is payable where an individual has income under $12,000 per annum.