Court File and Parties

Barrie Court File No.: FC-18-1348-00 Date: 2019-07-02 Superior Court of Justice – Ontario – Family Court

Re: Ryan Russell Brown, Applicant -and- Patricia Roxanne McEwen, Respondent

Before: The Honourable Mr. Justice J.P.L. McDermot

Counsel: Jason Murphy, for the Applicant Patricia Roxanne McEwen, Respondent, Self-Represented

Heard: July 2, 2019

Endorsement

[1] On November 15, 2018, Vallee J. heard a motion in this matter. It involved the Respondent unilaterally terminating the Applicant’s access. Vallee J. restored the status quo and ordered costs against the Respondent in the amount of $6,500, payable within 30 days.

[2] Ms. McEwan did not pay the costs. The time has now come to pay the piper and Mr. Murphy has issued a Notice of Garnishment against her employer. The employer is paying 20% of Ms. McEwan’s net pay as permitted under the Wages Act in the amount of about $420 per month. But Ms. McEwan says that she is unable to afford this amount. She says this is because her rent has gone up, her income has dropped, and as well because of the expenses of her three children in her care. She suggests that the garnishment should be in the amount of about $250 per month, which is more affordable for her.

[3] Mr. Murphy suggests that Ms. McEwan cannot be heard to complain about hardship in light of her recent choices. She moved into a four bedroom home which costs her $2,300 per month, and chose to purchase a $50,000 automobile which costs her nearly $550 per month.[^1] Mr. Murphy also notes that Ms. McEwan has undisclosed gratuity income (when she works in the restaurant rather than as a host) and also has assistance from her 18 year old daughter, who Ms. McEwan acknowledges contributed about $600 towards the last rental payment owing for her residence.

[4] This is a garnishment hearing under Rule 29(19) of the Family Law Rules. That rule gives me wide discretion to adjust the garnishment amount: rule 29(19)3 confirms that the court can make an order “changing how much is being garnished on account of a non-periodic payment order.” That allows the court to change the garnishment amount for good reason which, in my view, would include adjusting a garnishment amount because of hardship to the payor spouse or her children. See, for example, Bauer v. Bauer, [2007] W.D.F.L. 4783 (Ont. S.C.J.)

[5] It appears that Ms. McEwan’s litigation conduct leaves something to be desired. She has employed brinksmanship on both Christmas access and on the issue of her speculations about moving to either London or Orillia. All of these issues have cost the Applicant significantly in legal fees, and in fact the issue of the Applicant’s claim for costs against the Respondent costs for the mobility issue remain pending before the court.

[6] As well, the Respondent has made decisions which are financially questionable. She has moved into a fairly expensive place, costing her $2,300 per month; when asked about this, she noted that she had previously had a similar residence for $900 per month less, and the children were “used” to living in a four bedroom home. She purchased the Hyundai when she could have used the van that the Applicant supplied to her in lieu of support.[^2]

[7] However, the garnishment is costing the Respondent $420 per month when she is receiving $395 per month from the Respondent for child support and she presently is supporting two children, Brodi and Hayden. The Applicant pays support for Hayden, but he refuses to pay support for Brodi at present who is not his natural child; that issue remains in dispute. Although she receives some money from her 18 year old daughter, who also works in a restaurant, that has only been paid once and is not a dependable source of income. The garnishment for the costs may not only be causing the Respondent hardship; it may also be causing hardship for the children in the Respondent’s care and that is a situation that the court must address if that is the case: see M.(C.A.) v. M.(D.), 2003 CanLII 18880 (ON CA), 67 O.R. (3d) 181 (C.A.) per Rosenburg J.A., who reduced a costs award where the costs would cause hardship to the custodial parent; the same principle may apply to the exercise of discretion under r. 29(19)3.

[8] Based upon the Respondent’s financial statement, she had income of about $4,553 per month, and was incurring expenses of $5,580.14 when her rent was $1,400 per month. She is running a $1,000 per month deficit at present. None of the expenditures in the financial statement can be called extravagant. Moreover, the Respondent’s income was reduced due to a workplace concussion, and this is reflected in her financial statement. If her rent was increased by $900 per month, this might be made up by the assistance which might be received from her adult daughter (who has only made one payment so far) and the child support paid by the Applicant. Even so, she is still spending substantially more than she receives even with those income increments. And although the financial choices made by the Respondent may be subject to criticism, my concern is that the children who happen to live in the Respondent’s household should not suffer hardship as a result of either the litigation between the parties or the Respondent’s choices. They are the innocents in all of this and should not be penalized.

[9] I therefore find that the garnishment as it is presently constituted causes hardship to the Respondent and the children. Therefore, the garnishment shall be reduced to a maximum amount of $250 per month. This limitation on the garnishment may be reviewed in the event that the Applicant’s child support is changed in order to address support for Brodi, the Respondent’s older child. Order to go accordingly.

McDermot J.

Released: July 2, 2019

[^1]: In fact, the financial statement filed by the Respondent states that she is actually paying $370 per month on the loan, but in the body of her expenses, she says that she pays $547 per month. That discrepancy is unexplained. [^2]: Although that van would have cost the Respondent her child support from the Applicant had she continued driving it and it may have made no difference to the Respondent’s financial situation had she kept the van or bought the Hyundai.