Court File and Parties
Newmarket Court File No.: FC-05-22906-03 Date: 20190610 Superior Court of Justice – Ontario
Re: Rosemary Bebis, Applicant And: Serafim Michael Bebis, Respondent
Before: The Honourable Madam Justice H. McGee
Counsel: Applicant – Self-represented Respondent – Self-represented
Ruling on Motion to Change
[1] The respondent, Michael Bebis, brings a second Motion to Change his child support obligations as set out in a final Order issued January 19, 2006. That Order incorporates the parties’ consent dated January 12, 2006. The Consent requires him to pay $3,500 per month in child support for their three children based on “imputed and grossed up income of $175,700.”
[2] A Motion to Change is a focused proceeding that determines whether there has been a material change in circumstances since the making of a final Order. If there has been a material change in circumstances, then the court can decide the appropriate terms that ought to govern, from the time of the material change. If there has been no change, then the final Order continues.
[3] A Motion to Change is not a “do-over.”
The Final Order of January 19, 2006
[4] Within their January 12, 2006 Consent, the parties agreed to increase the table child support of $2,627 [1] (payable for three children on income of $175,700) to $3,500 per month. The difference of $873 provided a net of tax amount of spousal support to Ms. Bebis. She had claimed spousal support in her Application issued December 9, 2005 because she had been out of the paid workforce since their twins were born. [2]
[5] Neither party testified as to why the spousal support was to be paid net of tax, or why it was recorded as global child support. I suspect it was because most of Mr. Bebis’ income was in cash. Combining the spousal and child support into one non-taxable amount would have avoided a common dilemma for self-employed support payors who do not report their full income: paying tax deductible spousal support on non-taxable income.
[6] Had the child and spousal support been determined by a court, Mr. Bebis’ 2006 obligation for spousal support would have been in the tax deductible range of $2,600 to $3,100, instead of the after-tax amount of $873 per month.
[7] A Support Deduction Order issued as an automatic corollary enforcement Order.
FRO Enforcement
[8] Mr. Bebis made one or two payments to the Family Responsibility Office and then stopped. Completely.
[9] Throughout 2006 he flouted his own agreement, now a court Order, and by the fall of 2006 the FRO was predictably in the process of suspending his Driver’s Licence for failure to pay child support.
[10] His counsel at the time successfully obtained a refraining Order which allowed his licence to continue for a temporary period during which time he was expected to vary the final Order; if in fact, there was a meritorious basis to do so. In the interim, he was required to pay the $3,500 per month as a condition of the temporary reinstatement. He did not.
[11] Mr. Bebis’ counsel brought a motion [3] in November 2006 and sought new Orders on a number of issues, not just child support. He was not successful. Over time, his motion to reduce support was met with a cross-motion on a number of other issues, including parenting. There were two lengthy conferences, an Order for disclosure and then on October 26, 2007 Justice Graham ordered a trial of the issues with a term that should Mr. Bebis not provide proof of his life insurance, his pleadings would be struck.
[12] Meanwhile, the FRO continued with their enforcement proceedings. By June of 2008 Mr. Bebis’ legal position was dire. He had chosen to pay almost no child support since March 2006. He had become the proverbial “Deadbeat Dad.” The next step in the enforcement proceeding was incarceration - as it was then and is now for anyone who intentionally refuses to pay child support.
[13] Throughout this entire period and even during this trial, Mr. Bebis’ approach to fixing his FRO troubles was not to pay what he could and seek a reduction in support on its merits, but instead, to make his former wife’s life miserable. Of this, I have no doubt. A sampling of his texts to Ms. Bebis in the fall of 2018 preceding the original scheduling for this trial is shocking. The “c” word peppers his many threats of harm that he hopes will prey upon the mother of his children.
Minutes of Settlement Dated July 24, 2008
[14] The parties agreed to attend mediation in July of 2008. The mediation resulted in Minutes of Settlement dated July 24, 2008.
[15] Ms. Bebis acknowledged during this trial that she made a deal in July of 2008 which she hoped would remove the animosity directed at her, and the manipulation visited upon the children. She agreed to eliminate the child support arrears to date and to receive a reduced amount of child support going forward. She agreed to waive spousal support.
[16] These were considerable concessions, and she could only make them because her family was in a position to help her and the children. Since then, she has worked extremely hard to build a business and become financially independent.
[17] The July 24, 2008 Minutes of Settlement were submitted to the court in a 14B motion to be incorporated into a court Order. A copy is attached to these reasons for easy reference.
[18] Justice Rogers dealt with the 14B motion in chambers. On August 1, 2008 she wrote that three issues had to be addressed before an Order could issue:
a. Why the amount for child support was not a table amount. b. Removal of the term requiring the parties to withdraw from the FRO from the proposed draft order (parties can agree to do so, but cannot be so ordered,) and c. removal of the term requiring the parties to attend mediation (parties can agree to do so, but cannot be so ordered).
[19] Either party to the Minutes could have prepared an affidavit setting out why the agreed amount of support was appropriate, and a revised draft Order without the terms for withdrawal and mediation. Neither did, and from her testimony at trial, it appears that Ms. Bebis thought that it was solely Mr. Bebis’ obligation to do so. Mr. Bebis offered no explanation as to why he did not.
[20] The July 24, 2008 Minutes were never made into an Order, or a Support Deduction Order.
[21] The FRO would have continued to enforce the January 12, 2006 Order (as no other Order was filed with them) but for the fact that Ms. Bebis withdrew from the enforcement as a term of the Minutes. Specifically, the Minutes provide that:
a. Because “Mr. Bebis is self-employment and his income is variable,” he will pay child support of $1,500 commencing July 1, 2008, to be increased to $2,000 on July 1, 2009 and then $2,000 on July 1, 2010. b. Support will be paid by post-dated cheques and Ms. Bebis will withdraw from the FRO. c. Section 7 expenses “as they relate to the parties’ sons, shall be decided upon and paid for exclusively by Mr. Bebis, while those relating to their daughter shall be decided upon and paid for exclusively by Ms. Bebis. d. Each party waives any right to spousal support. e. As of the date of the Minutes, Ms. Bebis waives all arrears to date, estimated to be $45,000. f. $50,000 of legal fees incurred by Ms. Bebis is to be paid by Mr. Bebis starting in five years from the date of the Order and will be enforceable as child support.
[22] Mr. Bebis voluntarily paid the $1,500 a month from August 2008 to January 2009. Then he stopped. Mr. Bebis has not paid any child or spousal support since January 2009.
The Dodge Viper
[23] Ms. Bebis went without child support for the next 10 years. She covered the children’s day to day needs, their activity fees and much of their post-secondary education costs.
[24] She knew that Mr. Bebis was doing well enough, and ought to have been contributing something. He renovated two homes, built a recording studio in each, and he opened and closed a music store. His financial needs were always met.
[25] But every time she asked for help, she got a story as to why he could not pay any support, and he complained to the children that their mother had so much more. He would become aggressive with them if he was asked for money. For the children’s peace of mind, it did not seem worth pursuing him for support.
[26] But in 2017 Mr. Bebis went too far. Despite owing hundreds of thousands of dollars in child support, he used a portion of his house sale proceeds to buy a limited edition Dodge Viper. Ms. Bebis reinstated the FRO enforcement.
[27] As of the month of trial, Mr. Bebis’ child support arrears were just over $500,000. [4]
No Material Change in Circumstances Demonstrated
[28] Mr. Bebis now claims that he never made $175,500 a year – or its equivalent – and he wants to eliminate his entire arrears of support.
[29] When a payor’s income has been imputed, he cannot vary that Order unless he can demonstrate that there has been a material change since the making of that Order. A payor cannot simply suggest that the imputed income was wrong. [5] A payor must face the presumption that the original Order was correct – and the original imputation of income was correct.
[30] If a payor wishes to assert a changed income, he must first establish a meritorious basis for the calculation of present income that is different from the method used in the final Order. In other words, if a payor is imputed income because he is unemployed while having an ability to work, he cannot seek a change simply on the basis that he remains unemployed. [6]
[31] Mr. Bebis offered in his trial testimony that he only signed the Consent in 2006 because he needed the property payment to close the purchase of his new home, (which term was part of the Consent); and he thought that the parties would reconcile. He did not break down how the income of $175,500 was calculated, or why it should now be different. Instead, he focussed on the decline of wedding photography over the past 20 years.
[32] This is an incomplete analysis. In 2006 Mr. Bebis’ income was calculated on a combination of employment income and cash photography. Since he lost his employment, (the date of which was not put into evidence, but may have been in 2006 or 2007) he has chosen not to seek reemployment, but to rely primarily on periodic weekend photography and house sale proceeds as his source of income. I received no compelling evidence as to why he could not rejoin the paid workforce.
[33] Mr. Bebis’ most credible witness, who often works with him as a second camera at weddings, indicated that he is employed full-time during the week, and does wedding photography on the weekends. Mr. Bebis gave no explanation as to why he could not do the same. Depending on the season, he generally works only a few days a month.
[34] With respect to his wedding photography, it must first be understood that it is entirely conducted in cash. As a wedding photographer, Mr. Bebis charges no HST. He does not declare the income for tax purposes, nor does he file quarterly remittances. He pays his $400 a month for studio rent, in cash. His landlord, whom he called as a witness on the decline in wedding photography, confirmed the cash receipts.
[35] Mr. Bebis did not testify as to the amount of cash charged for a wedding in the years leading to the January 2006 Consent. There are no records to demonstrate whether the fees generated by a wedding or the number of weddings has diminished since 2006.
[36] Mr. Bebis led no evidence of a material change since 2006 but for his own and two of his friends’ anecdotal experience of a decline in the wedding photography business that has been underway since the mid-2000’s.
[37] Each of Mr. Bebis’ witnesses were asked by Ms. Bebis to estimate the approximate number of cash weddings that Mr. Bebis presently does. Each gave a figure higher than that provided by Mr. Bebis.
[38] Mr. Bebis was clear that “all his jobs are in cash.” In fact, he put that fact to Ms. Bebis in a text from last October [7] warning her not to pursue him for child support. In his words, “[w]hat’s the point?”
[39] Mr. Bebis cannot fail to seek employment income and rely exclusively on a decline in wedding photography that by his own evidence was already underway by 2006. I find there to be insufficient evidence of a material change in circumstances as necessary to a Rule 15 Motion to Change.
July 24, 2008 Minutes of Settlement are Enforceable
[40] I have reviewed the July 24, 2008 Minutes of Settlement in some detail. It was submitted on consent in a 14B motion in August 2008, with a draft Support Deduction Order to be issued and entered.
[41] Justice Rogers received the motion. She endorsed her concerns with the form and content of the proposed Order. 10 years later, two of those concerns are no longer relevant: the parties have not attended mediation, and the matter is back with FRO for enforcement.
[42] As for her first concern, and having heard the evidence at trial, I am satisfied that the rounded amounts of child support agreed in July 2008 meet the objectives of the Federal Child Support Guidelines and the Divorce Act.
$1,500 in 2008 was the table amount for income of $79,300 $2,000 in 2009 was the table amount for income of $111,200 $2,500 in 2010 was the table amount for income of $144,500
[43] I am satisfied that the parties entered into the Minutes voluntarily and that they each relied upon the Minutes, despite not having a full recall of the details. Mr. Bebis mentioned a number of times during the trial that his arrears had been forgiven. [8]
[44] I therefore make a final Order in accordance with the parties’ resolution of the first Motion to Change. In my view, it would not be a just result otherwise. But for each of the parties’ failure to address three minor concerns with the form of the Order, a final Order and Support Deduction Order would have issued.
August 1, 2008 to Present
[45] The parties agreed at their May 10, 2018 Case Conference that child support for Madison terminated as of June 30, 2016 and for Christian, as of April 30, 2017. Matthew’s eligibility continues to April 2020.
[46] Ms. Bebis’ affidavit of November 5, 2018 was adopted at trial as part of her evidence. Paragraph 6 of that affidavit sets out the number of adult children residing at her home between 2013 to present, which evidence was not contested by Mr. Bebis.
[47] Using that schedule, and incorporating into this final Order the July 24, 2008 Minutes, I vary the table payments of child support set out in the final Order of January 19, 2006 as follows, using the incomes determined in paragraph 31 above.
Final Order to Issue
- As of June 30, 2008 all arrears of child support pursuant to the final Order of January 19, 2006 shall be fixed at 0 (nil).
- From July 1, 2008 to June 30, 2009 the respondent father shall pay monthly table support of $1,500 for three children.
- From July 1, 2009 to June 30, 2010 the respondent father shall pay monthly table support of $2,000 for three children.
- From July 1, 2010 to August 31, 2013 the respondent father shall pay monthly table support of $2,500 [9] for three children.
- From September 1, 2013 to April 30, 2014 the respondent father shall pay monthly table support of $1,928 for two children.
- From May 1, 2014 to August 31, 2014 the respondent father shall pay monthly table support of $2,500 for three children.
- From September 1, 2014 to April 30, 2015 the respondent father shall pay monthly table support of $1,928 for two children.
- From May 1, 2015 to August 31, 2015 the respondent father shall pay monthly table support of $2,500 for three children.
- From September 1, 2015 to April 30, 2016 the respondent father shall pay no monthly table support as all three children were in residence away from home.
- From May 1, 2016 to June 30, 2016 the respondent father shall pay monthly table support of $2,500 for three children.
- From July 1, 2016 to August 31, 2016 the respondent father shall pay monthly table support of $1,928 for two children (Madison ceasing eligibility as of June 30, 2016).
- From September 1, 2016 to April 30, 2017 the respondent father shall pay no monthly table support as all three children were in residence away from home.
- From May 1, 2017 to August 31, 2017 the respondent father shall pay monthly table support of $1,214 for one child, Matthew (Christian’s eligibility ends April 30, 2017).
- From September 1, 2017 to April 30, 2018 the respondent father shall pay no monthly table support as the remaining eligible child – Matthew is in residence away from home.
- From May 1, 2018 to August 31, 2018 the respondent father shall pay monthly table support of $1,214 for Matthew.
- From September 1, 2018 to April 30, 2019 the respondent father shall pay no monthly table support as the remaining eligible child – Matthew is in residence away from home.
- From May 1, 2019 to August 31, 2019 the respondent father shall pay monthly table support of $1,214 for Matthew.
- From September 1, 2019 to April 30, 2020 the respondent father shall pay no monthly table support as the remaining eligible child – Matthew is in residence away from home. Matthew’s support eligibility then ends in April 2020.
- Support Deduction Order to issue.
- Any amounts collected by the FRO after July 1, 2008 shall be a credit to this Order.
Claim for Proportionate Sharing of Post-Secondary Education
[48] I am bifurcating the issue of post-secondary education expenses, as I am not prepared to make any Order for Mr. Bebis’ proportionate share of post-secondary education costs on this record, for the following reasons.
[49] First and foremost, the form of the July 24, 2008 Minutes of Settlement provide that Mr. Bebis pay all of Michael and Christian’s section 7 expenses. With my decision to enforce the terms of the Minutes as an Order, I cannot then ignore how the parties agreed to deal with the payment of section 7 expenses.
[50] Second, and related to the first is the issue of procedural fairness. Neither party gave submissions on this aspect of the July 24, 2008 Minutes during the trial. Each should be afforded an opportunity to do so before a decision is made.
[51] Third, even if I were to ignore that part of the Minutes, I do not have a properly organized or evidenced case to decide the proportionate sharing of post-secondary expenses. Missing is the following:
(a) the after-tax cost of the post-secondary expenses; (b) the children’s contributions. Children have an obligation to make a reasonable contribution to their own post-secondary education or training; (c) sufficient evidence to calculate Ms. Bebis’ income – which is necessary to determine proportionate expenses. In her materials she offers to have her income imputed at $50,000, but I need further evidence to make such a finding – her February 2017 mortgage application discloses income of $120,000 per annum. Her April 27, 2018 Financial Statement and her 2017 Income Tax Return shows taxable income of $504.08. Mr. Bebis is not the only party in this proceeding who does not pay income tax; (d) SupportMate calculations for each year in which a proportion of post-secondary expenses is claimed. As explained at the beginning of the trial, a party seeking a contribution must organize the information per calendar year, applying each parent’s income to the after-tax cost of the expenses after deduction for the child’s contribution; and (e) evidence of the OSAP loans received by each child in each year and the amounts that were paid back, if any, before Ms. Bebis discharged them as a gift from her inheritance.
[52] If Ms. Bebis wishes to seek a final Order for Mr. Bebris’ proportionate share, or reimbursement of all post-secondary education expenses for Matthew and Christian, she is to obtain a date through the Trial Coordinator for a Settlement Conference, and serve a Settlement Conference Brief with all required calculations for each calendar year. Legal advice is recommended.
A Note About Self-Representation
[53] Both parties worked hard during the trial to be polite and helpful. Each had prepared a comprehensive Exhibit Book with the proper number of copies.
[54] The trial became challenging because neither party had a full appreciation of the case that he or she had to meet.
[55] Mr. Bebis ignored the legal requirement to show a material change in circumstances since the date of the final Order; and seemed genuinely surprised that he had an obligation to contribute to his children’s post-secondary education. He saw child support as more of an attack on his quality of life, rather than the legal, moral and entirely normal obligation that it is for any Canadian parent.
[56] Ms. Bebis sought a proportionate sharing of post-secondary expenses as a percentage of what she had paid, rather than the calculation required in section 7 of the Federal Child Support Guidelines.
[57] Neither party had read, or chose to place into evidence, their July 24, 2008 Minutes of Settlement despite referencing different aspects of it during the trial. Neither realized that she or he could have filed a further affidavit over the past 10 years seeking a final Order on its terms.
[58] Trial Judges have a responsibility to inquire whether self-represented persons are aware of their procedural options, and to direct them on basic procedures when necessary. Depending on the circumstances and nature of the case, judges can explain the relevant legal tests in the case and its implications, before the self-represented person makes critical choices.
[59] At the same time, Judges cannot take on the role of counsel to either party, independently create an evidentiary foundation for a claim from disparate and incomplete pieces of evidence, or assist a party in the presentation of his or her case. To do so would remove the necessary precondition to procedural fairness – an independent, neutral decision maker.
[60] Should this matter return to court on the issue of post-secondary education expenses, I urge each party to thoroughly research and prepare his or her case in accordance with the Divorce Act and the Federal Child Support Guidelines.
Costs
[61] Success has been divided in this proceeding. If either party seeks costs pursuant to Rule 18 or 24 of the Family Law Rules, she or he is to serve and file costs submissions on or before June 28, 2019. The other’s response is to be served and filed by July 15, 2019. Reply is due July 29, 2019.
[62] All costs submissions are to be filed in the Continuing Record. Costs submissions are limited to three pages, exclusive of a Bill of Costs, and any Offers to Settle. Upon filing the costs submissions, parties are asked to confirm the filing by email to the Judicial Assistant at nurit.suzana@ontario.ca. If no submissions are received by June 21, 2019, an Order will be made that there will be no costs.
[63] The $50,000 of costs set out to be paid in the July 24, 2008 Minutes of Settlement, starting in July 2013 were not specified as to the monthly payment. Was the entire amount due and owing, or were the costs to be paid over time? If either party seeks further a ruling in this regard, so that the terms of the costs payment can be enforced within this final Order, the same time lines as set out above for costs (paragraph 61 above) are to be followed.
Justice H. McGee
Date: June 10, 2019
Footnotes
[1] In January 2006 the May 1, 1997 table amounts were in effect. The table amounts have since been adjusted three times: May 1, 2006, December 31, 2011 and November 22, 2017.
[2] Paragraph 9 of the consent Order specifically acknowledges that $3,500 per month is “more than the amount otherwise payable pursuant to the Child Support Guidelines, and takes into account the fact that there is no spousal support payable.”
[3] Not a formal Rule 15 motion, but in effect the same process.
[4] The most recent FRO Statement of Arrears available at trial was dated July 26, 2017 and shows arrears of $427,846.74, which, if brought forward to the date of trial would total $504,846.
[5] Ruffalo v. David, 2016 ONSC 754, 2016 CarswellOnt 2151
[6] Trang v. Trang 2013 ONSC 1980. This is an excellent case that reviews when an Order for imputed income will be reconsidered. Here, the parties agreed to the imputed income.
[7] This was in the period leading up to when the trial was intended to be called at trial – November 2018. The trial was not reached until these May 2019 sittings.
[8] Although he did not mention when, or in what amount.
[9] As footnoted earlier, the table amounts changed December 31, 2011 and November 22, 2017; because of the nature of the July 24, 2008 Minutes, I have not adjusted the incomes on which the agreed amounts of support would have been based. Instead, all table amounts are based on the $144,500. For one child: $1,214, two children: $1,928 and three children: $2,500. This actually accrues to Mr. Bebis’ benefit as the subsequent table amounts increased his obligation.