BACKGROUND

[1] The Respondent, Mario Andriano, is the moving party in this Motion to Change. His former wife is the Applicant, Pasqualina Scarola, and she has custody of the parties’ daughter, Analisa Andriano who is now 16. Ms. Scarola, along with the Ministry of Community and Social Services and York Region, are contesting the Respondent’s Motion to Change.

[2] According to Ms. Scarola, the parties separated in 2011 after 10 years of marriage, when they sold a jointly held matrimonial home located at 11 Sylvester Court, in Vaughan. The home was sold because the parties could not afford it; the taxes were in arrears and there were two mortgages on the home and one mortgage was three months in arrears with power of sale pending. The parties blame each other for these defaults, but once the debts and closing costs were paid, they came away with net sale proceeds of about $220,000, which was divided equally between them. The Applicant moved into her parents’ home with Analisa and her two children from a previous marriage. The Respondent also moved into his parents’ home, where he still lives today.

[3] Even though the parties separated in 2011, Ms. Scarola only went to court in 2014. The Application was served on Mr. Andriano, but he did not appear and was noted in default. Ms. Scarola obtained a final order made by Kaufman J. which was made after an uncontested trial on July 3, 2015. In that order, Kaufman J. found Mr. Andriano’s income to be $70,000 per year. Kaufman J. ordered child support to be paid according to the Child Support Guidelines^1 for Analisa in the amount of $639 per month. He ordered child support to be retroactive to the date that Ms. Scarola said that the parties separated, being July, 2011. A credit was given to Mr. Andriano of $500 per month for payments stated to have been received by Ms. Scarola between July, 2012 and July, 2014 (although this was later changed by way of 14B motion brought by the Applicant to reduce this time period to July, 2012 to July, 2013). These are the orders that Mr. Andriano seeks to vary in these proceedings.

[4] This final order of Kaufman J. was granted after the Respondent was noted in default: he was served with the Ms. Scarola’s Application on October 14, 2014. Afterwards, he was served again with a Form 23C affidavit on March 18, 2015 because some of the relief requested at the uncontested trial was not contained in Ms. Scarola’s application. And to be fair to the Respondent, his lawyer, Mr. Di Monte, was clear that there was no motion or application before the court to set aside the Kaufman J. order pursuant to r. 25(19) of the Family Law Rules;[^2] Mr. Andriano acknowledges that he was served with process and filed no responding material. He also does not allege a “mistake” in the order or that there were misrepresentations to the court that would warrant the order being set aside or varied under that rule.

[5] This is important because the jurisdiction for the court to make an order in this Motion to Change then lies under s. 17 of the Divorce Act.[^3] Section 17(4) provides that, before varying a child support order, the court must “satisfy itself that a change in circumstances as provided for in the applicable guidelines has occurred since the making of the child support order”. In other words, the court cannot rely upon facts pre-dating the July, 2015 order as these would not be a change in circumstances occurring “since” the making of that order. The order is presumed to be correct, as it has not been appealed and since there is no claim under r. 25(19). Therefore, the findings warranting the imputation of income to the Respondent cannot be changed unless the Respondent proves, on the balance of probabilities, that a change in his income or those circumstances has occurred since the date of the order in question.

[6] After meeting in chambers prior to trial, the parties argued the evidentiary issue of whether the economic circumstances warranting the change in the order could predate the order. I ruled that, based upon s. 17(4) of the Divorce Act, evidence as to the Respondent’s economic circumstances prior to the date of the order was not relevant to any change to be made in child support at this trial. The Respondent’s circumstances prior to the making of the order could only be related to background or as a base line to prove a subsequent change in circumstances.

Result

[7] For the reasons set out below, I have dismissed the Respondent’s motion to change.

[8] I have also ordered that the arrears be fixed at $48,024 as of September 1, 2018 to take into account the Respondent’s share of orthodontic expenses that he had previously failed to pay.

Evidentiary Issues

[9] Because the Respondent has the onus to prove the material change in circumstances and because he was his only witness, I have to comment on his evidence and his testimony at trial.

[10] I did not find the Respondent to be a credible witness and I did not find his evidence to be reliable. There are a number of reasons for this.

[11] Firstly, the Respondent was confronted with a number of documents that he had signed which were inconsistent with his evidence or inaccurate. One document was his financial statement sworn August 31, 2018. That financial statement contained a car payment that the Respondent said he was making on his BMW: he testified that he was not making that payment when he swore the financial statement as his mother had previously paid off that car loan with a $15,000 line of credit. He also deposed in that financial statement that he was paying for insurance for that car: in fact, he testified that, at the time he swore that document, he was not paying insurance for the BMW because he had lost his license. He acknowledged that he had signed a document that contained a “mistake” but he blamed his lawyer for making the error.

[12] The second document that he was confronted with which he could not explain was his loan application when he purchased his BMW vehicle in 2014. He said in that application that he had worked for Royal Cuisine for more than 20 years, and that he earned $50,000 per year. However, he claims that his tax returns filed during that time also reflected his income, and his 2015 tax return shows both gross business income and net income of under $2,500 per year. Although he did not file them at trial, he says that his previous tax returns showed no income whatsoever and that this was his financial situation after separation. He said in testimony that Royal Cuisine had gone bankrupt and he had not worked for them. His representations to BMW were patently false and he seems to have excused this by stating that his loan application was refused.

[13] To sum up, if the Respondent is unable to tell the truth when he puts his signature to documents that he expects others to rely upon, I can hardly find his evidence to be reliable. How can I trust someone who is so cavalier with the truth in his written documentation used to obtain a car loan or used to disclose his financial situation to the court?

[14] Moreover, when the Respondent gave testimony, it was uncertain and unreliable. He was unable to explain substantial deposits in his bank account. He was unable to explain why he paid the down payment for the BMW in cash other than to say that he had a right to keep the money from the home in a safe in cash. He was unable to tell the court as to when his mother borrowed the $15,000 to pay off the car. He was unable to provide a credible explanation as to why he had a food truck in his possession on a continuous basis, parking it in his laneway throughout cohabitation, when he said that he did not have a regular route, and only used it to drive to work every day. He could not explain why he had a food truck in his mother’s laneway for all of 2014 and 2015 when he said to have only worked two months during that time. If he had it without actually using it at work, one has to ask why it disappeared only once his license was suspended for failure to pay child support. He had very little recollection of salient facts, and was unable to provide clear evidence as to what exactly took place that prevented him from earning income.

[15] Because of the inconsistencies in his evidence and his lack of recall, as well as the false documents sworn or signed by the Respondent, I do not find his evidence to be credible.

[16] In comparison, I found Ms. Scarola’s evidence to be reliable and stood up in cross- examination. Her documentation filed for trial was not called into question. Her witnesses, especially her daughter, were also credible witnesses. Therefore, in the event that Mr. Andriano’s evidence differs with that of the Applicant or any of her witnesses, I prefer the Applicant’s evidence to that of the Respondent.

ANALYSIS

[17] This is a motion to change under s. 17(1) of the Divorce Act. That provision permits the court to make an order “varying, rescinding or suspending, prospectively or respectively… a support order or any provision thereof”.

[18] Because this is an order for child support, prior to making an order under s. 17(1), the court must find “that a change in circumstances as provided for in the applicable guidelines has occurred since the making of the child support order”: s. 17(4) of the Divorce Act.

[19] I firstly wish to review the orders that Mr. Andriano seeks to change, and then the issue of whether there is a change in circumstances which would allow me to change the order.

Kaufman J.’s Orders of July 3 and September 17, 2015

[20] Kaufman J.’s original order can be found on the Continuing Record. Kaufman J. found that Mr. Andriano’s income should be set at $70,000 per annum. He ordered child support of $639 per month commencing on the date of separation, which he found to be November 1, 2011. He gave a credit of $500 per month for direct support that the Applicant said that she received from the Respondent between July 1, 2012 and July 1, 2014. The order also provided that the Respondent would pay one-half of the child’s special expenses, including orthodontal expenses.

[21] At trial, the Director’s Statement of Arrears was filed and it provided that the Respondent owed arrears of child support of $44,240 (excluding administration fees) as of September 1, 2018.[^4] The Respondent Ministry and Region are together owed more than half of these arrears in the amount of $22,715 through assignments to both York Region and to the Ministry of Community and Social Services between April 1, 2013 and July 31, 2016.[^5] According to a Statement of Arrears completed by the Applicant and sworn May 17, 2017,[^6] nearly one half of all of these arrears were created by the Kaufman J. order as it had retroactive effect.

[22] The order was made on application by the Applicant and in default of appearance by the Respondent. The Application was served on the Respondent on October 14, 2014 and the Respondent did not file any responding material or Answer. Although the Applicant testified that the parties had attended at mediation, she said that they only settled custody and access issues and not support, and her child support proceedings were therefore necessary.

[23] On January 28, 2015, Douglas J. directed that the Form 23C (Affidavit for Uncontested Trial) be served on the Respondent because of allegations made about his income. A Form 23C was served on the Respondent by mail on March 18, 2015 although it was not the same Form 23C that was placed before Douglas J. in January of that year. Ultimately the matter was placed before Kaufman J. on July 3, 2015. Again, there was no responding material filed by the Respondent.

[24] Later the Applicant brought a 14B motion, again on notice to the Respondent, to amend the order to provide that the $500 monthly direct payments ended on July 1, 2013 rather than July 1, 2014, as originally ordered, and this increased the arrears by $6,000. No response was made by the Respondent, although at trial, he asserted that he had made direct support payments during 2014 and 2015. Kaufman J. amended the order as requested on September 17, 2015.

[25] Although the Respondent brought a 14B motion on October 5, 2010 to set aside the order stating that “False income was given”, that was dismissed as being an improper use of a 14B motion. It was never renewed. The Respondent did not bring a motion in these proceedings to set aside the July 3, 2015 order or the subsequent amending order. Jurisdiction for a motion of this nature would be under r. 25(19) which permits the court to change an order that “contains a mistake” or where proper service was not affected.

[26] There might have been good reason to bring a r. 24(19) motion. The direction by Douglas J. was that the Form 23C affidavit before him be served on the Respondent because of the “allegations” respecting the Respondent’s income contained in that affidavit. The Applicant’s original affidavit stated that the reason that she was seeking imputation of income in the amount of $70,000 per year was because:

He is on the same route that his deceased brother was on before him. And was told to me by the brother’s wife that her husband was receivg (sic.) between 4,000 – 6,000 mth.

[27] That was not, however, set out in the affidavit that was served on the Respondent. On January 28, 2015, Douglas J. had ordered the Applicant to serve her Form 23C affidavit on the Respondent, stating the following:

Also, the Form 23C should be served upon R given the allegation contained therein regarding his income. He should be given an opportunity to challenge these allegations which were not included in the App’n.

[28] Instead, Ms. Scarola swore a new Form 23C affidavit, which did not contain the allegation regarding the brother’s route and gave no real reason why the court should set the Respondent’s income at $70,000 per year. She therefore did not comply with Douglas J.’s endorsement. Ms. Scarola’s failure to serve the original Form 23C affidavit on the Respondent did not allow him to “challenge” the allegations made by the Applicant concerning imputation of income to the Respondent which had been ordered by Douglas J.

[29] As well, the Respondent testified that, around the time that process was served, he had relapsed to daily drug use, and this was confirmed by a medical letter filed by the Respondent at trial.[^7] There may be good explanation as to why he did not respond to the application when served.

[30] That being said, there is no application to set aside the order and Mr. Di Monte acknowledged this on behalf of the Respondent. I cannot sit in appeal of either of Kaufman J.’s orders, and there is no other appeal of that order. This was a motion to change, and therefore, the only thing that the court can consider is any change in circumstances since the date of the order: see s. 17(3) of the Divorce Act and Gray v. Rizzi, 2016 ONCA 152.

Change in Circumstances

[31] Prior to changing a support payor’s support, that payor must prove, on the balance of probabilities, a “change in circumstances as provided for in the applicable guidelines.” Since s. 3(1) of the Child Support Guidelines contains a presumptive rule that the support is to be based upon the tables and the income of the payor, the moving party must show a change in circumstances resulting in an income change which would then vary child support under the applicable table. As noted a number of times above, that change in circumstances must have taken place since the making of the Kaufman J. order in July, 2015.

[32] On the evidence before me, there are two possible changes in circumstances which may come within the requirements of s. 17(4) of the Divorce Act:

a. Around the time that the Kaufman J. order that was made, the Respondent relapsed into heroin and cocaine use which may have resulted in a change in the Respondent’s income.

b. The Respondent lost his license in November, 2016 after which he could not drive his food truck and earn his previous income.

[33] The Respondent has also asked me to credit support payments that he says he made directly to the Applicant beyond those credited by Kaufman J. in his two court orders.

Heroin and Cocaine Use

[34] The Respondent testified that one of the reasons that his income changed after the order was because of his relapse into drug use.

[35] The Respondent became addicted to drugs in his youth; he attributed this to his father having owned a bar and the fact that he spent a lot of time there in his younger years. His drugs of choice were heroin and cocaine.

[36] He first received treatment through methadone maintenance therapy prescribed through his addictions doctor, Dr. Cooper. The Respondent first went to see Dr. Cooper in 1998. He says that throughout the marriage he used methadone, and remained clean. The Respondent’s use of methadone was confirmed by the Applicant, who was aware of the Respondent’s addiction issues.

[37] Mr. Andriano says that after the sale of the home on Sylvester in 2011, he thought that the parties were going to reconcile and he testified that he was involved in the purchase of the Applicant’s subsequent home which was located on Beechnut Road in Vaughan. That home was purchased about a year after separation. He said that he spent time with the Applicant throughout the post-separation period and that they spent weekends together. He testified that he assisted in funding of renovations for that home from his share of the house proceeds. Although Mr. Andriano did not contribute to the purchase of that property and it was put into the name of the Applicant’s older daughter from a previous marriage, Vita Argiro, he said that he thought that he was buying a home with the Applicant and hoped to move back into that home with her.

[38] Those assertions were denied by both Ms. Scarola and her daughter. Ms. Argiro said that the home was hers and her mother’s insofar as they purchased the home together, and it was Ms. Argiro’s income and credit rating that allowed for approval of the mortgage. Both denied that Mr. Andriano put any money into the home for subsequent renovations or at all.

[39] However, all of that being said, the Respondent testified that he discovered, in early 2014 (at the same time that he said that he purchased the BMW as a Valentine’s Day gift for the Applicant), that Ms. Scarola was involved with another man and that reconciliation was not a possibility. He said that he was devastated by this and that this eventually resulted in his relapse into drug use.

[40] Mr. Andriano testified that he began to inject heroin and cocaine in late 2014. He provided in evidence a letter from Dr. Cooper which stated that Mr. Andriano “relapsed to regular daily use in July, 2015” and that his urine tests “between July, 2015 to September, 2017 were positive for opiates or cocaine.”[^8]

[41] In evidence, Mr. Andriano said that he “was messed up on drugs” in 2015 and 2016 and could not work. He testified that his drug use resulted in his being unable to work. Although he said that he began his drug use prior to when Dr. Cooper said that he had relapsed, he attributes this to his ability to use drugs only at certain times, thereby fooling the drug testing; it was only in July, 2015 that his drug use became impossible to control.

[42] The onus is on the Respondent to demonstrate that there is a change in circumstances that affects his income available to pay child support. The difficulty that I have with the assertions of the Respondent is not that the change in circumstances did not occur, but whether the Respondent has proved his income was affected by his drug use.

[43] There was very little evidence about the Respondent’s actual income both before and after the July, 2015 court order. The only income tax information filed at trial by the Respondent were his 2015 to 2017 Notices of Assessment, as well as his 2017 Income Tax Returns. Those returns showed very little income from his business; in 2015 Mr. Andriano said that his gross and net business income was $2,435. In 2016, there was no income declared. By 2017, Mr. Andriano showed $7,908 in income from Ontario Works and he filed welfare cheque stubs showing that he had received welfare from February to December of 2017. He testified that he continues to receive welfare.

[44] Mr. Andriano said that he had disclosed no income in his tax returns prior to the court order. Ms. Scarola confirmed that the Respondent never showed very much in income in his returns. She testified that Mr. Andriano kept his cards close to his chest and never disclosed to her his actual income, which was mostly in cash. She said that she was concerned because Mr. Andriano never took her into his confidence and, although he agreed to pay the mortgage on Sylvester, he refused to pay anything else, and always kept his cash close to him, even taking his cash earnings into the bathroom when he took a shower so that no one could see it. She said that he dealt with cash and although she would ask him what he made, she never got a straight answer. She said that she would take their taxes to H&R Block to prepare income tax returns, but his cash income made it problematic. She acknowledged that she had said the Respondent made $6,000 per month based upon the fact that the Respondent took over his brother’s route after his death in February, 2011, and she confirmed that this is what her brother’s widow told her that the route made. She insisted this was the only time that she had clarity as to Mr. Andriano’s income. That was the evidence that she relied upon for the finding of income in the amount of $70,000 per year in the uncontested trial. Ms. Scarola acknowledged, however, that Mr. Andriano did not make that type of money prior to taking over his brother’s route.

[45] Mr. Andriano denies that he made anything like this. He said that he only drove his brother’s route for a month or two until his former sister-in-law demanded the keys back for the food truck because Ms. Andriano had accused him of having an affair with her. He said that his nominal income as reflected in his tax returns (of which we only had 2015) was reflective of what he actually made and that he only drove the food truck occasionally to fill in for other drivers who were off work. He said that he had the use of a “spare” truck that he drove home, but that he made little income because he did not have a regular route with his employer and would only go in to work to assist in cleaning and maintaining the food trucks, essentially sitting around without income unless someone was ill or did not show up for work.

[46] There is, however, substantial evidence to the contrary. Firstly, the evidence was clear that, for many years, there was a food truck parked in the driveway of the family home. Ms. Argiro testified that, as a child living with her mother and Mr. Andriano, the food truck was in daily use and was always parked outside the home at night. She said that Mr. Andriano was up at 5:00 every morning and by the time that she went to school, Mr. Andriano was off to work with the food truck. He would get home about 4:00 or 4:30 p.m. after she had gotten home from school. In the evenings, she said that she saw him stock the food truck, clean the coffee maker and get it ready for the next day. She said that between June of 2012 and July or August of 2014, she worked at Factory Direct off of Applewood Crescent in Woodbridge, and that her place of work, which did not have a cafeteria, was on the Respondent’s route. She testified that the Respondent was at her place of work every day with the same food truck that had been parked in the laneway prior to separation.

[47] As well, the food truck was in the parties’ lives early in the marriage. Ms. Scarola testified that one of the reasons they sold their first home was because there was insufficient room in the laneway to park the food truck. There was also evidence that when Mr. Andriano went to live at his mother’s residence, the food truck went with him and was parked in his mother’s laneway.

[48] I do not believe Mr. Andriano when he says that the employer allowed him to use the food truck because he did not have other transportation. That simply does not ring true. I find it unbelievable that any employer would allow a casual employee to drive one of their food trucks back and forth to work when that person did not regularily work for them. I also do not find it believable that Mr. Andriano’s employer would make a rational business decision to tie up a piece of capital as valuable as a food truck to be kept as a “spare” when it had no regular route. That is especially so when it was cleaned out by Mr. Andriano daily and he got up every day at 5:00 a.m to go off to work. It makes a lot more sense that Mr. Andriano had a regular route to service and he did so for many years.

[49] As well, Mr. Andriano asserted to BMW that his income was $50,000 per annum when he went to buy a used car in February, 2014. If he had cash income in this amount and did not declare it for taxes, it would make sense to gross that income up to $70,000 per year. He also had cash, which confirms cash income, to put down on the BMW vehicle. There was evidence from Mr. Andriano that the amount of cash that he put down was $21,000 that he had to pay in increments because of money laundering rules. Although Mr. Andriano says that the cash down payment for the BMW came from his share of the net proceeds from the sale of the home on Sylvester, that home was sold long before 2011 when he acknowledges that the funds were deposited to his bank account. He said that he took that money back out of the bank and kept it in cash in a safe without explanation as to why he would have done that. It is more than likely that the funds for the BMW came from his cash income which the Applicant testified that the Respondent kept in cash and hidden from her during marriage.

[50] More importantly, however, the Respondent provided the court with no clarity as to his income, either before or after the order was made. He does not seek to set aside the Kaufman J. order from July of 2015 and therefore accepts the imputation of income from that order of $70,000 per annum at the date of that order. It was also his evidence, however, that he actually made almost nothing from his employment before the order was made, and also almost nothing after. In other words, if his income was never much of anything before or after the order, then he has failed to prove, on the balance of probabilities, that there was any change in circumstances “as provided for in the applicable guidelines” within the meaning of s. 17(3) of the Child Support Guidelines. I can therefore only conclude that the Respondent has failed to prove on the balance of probabilities that there was a change in his income after the order was made and as a result of his relapse into daily drug use in July, 2015.

[51] But I also do not believe that the Respondent is being truthful when he says that he made no income prior to the date of the order. He says that he never made much, only working casually until he took over his brother’s route when his brother died in February, 2011. He testified that he agreed to pay his brother’s widow $500 per month for the route, but that he only worked that route for two months after which there was a falling out and he had to give the keys to the truck back. However, the food truck was always parked in the laneway throughout marriage, and then at his mother’s home after. The Applicant’s daughter, Ms. Argiro, testified that between 2012 and 2014, Mr. Andriano drove a route which included her place of work in Woodbridge on a daily basis. The only time that Mr. Andriano actually declared his income when he had “skin in the game” in an attempt to obtain a car loan, was when he applied for a loan with BMW and represented that his income was $50,000 per annum the year prior to the order being made. And the food truck continued to be in the driveway until 2016 when the Respondent lost his license because of non-payment of support; as far as I can see, the Respondent’s drug use did not result in any sort of change in that situation as the truck continued to be in the laneway of his home well after the Kaufman J. order was made in July, 2015 and well after his relapse into drug daily drug use.

[52] I therefore do not find that the Respondent has proven on the balance of probabilities that there is any sort of material change in his income resulting from his relapse into daily drug use as disclosed in the correspondence from Dr. Cooper.

Loss of License

[53] There is no question that the Respondent’s loss of his driver’s license in November, 2016 resulted in a change in his income. After losing his license, the evidence was that the food truck disappeared from his mother’s laneway and Mr. Andriano began to receive public assistance in early 2017. Although he continued to drive his BMW to obtain his methadone at Shopper’s Drug Mart, it would be difficult to extrapolate from that that he continued to drive the food truck. It is clear that the loss of license has affected Mr. Andriano’s ability to earn income.

[54] A job is available for the Respondent driving a food truck in the event that he is able to regain his driver’s license.[^9] The question is whether the loss of license is a change in circumstances which would warrant a change in child support under s. 17 of the Divorce Act.

[55] The loss of license was clearly as a result of the Respondent’s failure to pay his child support. Mr. Andriano admitted that he received the Notice of Suspension of his driver’s license from the Director and did nothing. He could have attempted to arrange for repayment of some or all of the arrears or asked for a refraining order, but did not. Because of this the Director directed that the Respondent’s driver’s license be suspended under s. 37 of the Family Responsibility and Support Arrears Enforcement Act (the “FR&SAEA”).[^10] The Director has commenced enforcement proceedings which are adjourned to January 24, 2019 for this trial result.

[56] It is Mr. Andriano’s own misconduct that has resulted in the loss of income. He failed to pay child support and failed to respond to the Director’s Notice when served on him in September, 2016. His license was therefore suspended and the responsibility for this lies with him alone. As stated by Mazza J. in DiMillo v. DiMillo, [2007] W.D.F.L. 1263 (Ont. S.CJ.), at para. 19, the support payor “cannot benefit from circumstances which he himself created.”

[57] Even though Mr. Andriano’s license suspension has resulted in his job loss, it is not a change in circumstances that the Respondent can rely upon to change his child support as requested in this trial.

Conclusion

[58] As there is no change in circumstances within the meaning of s. 17(4) of the Divorce Act, child support under the order of Kaufman J. cannot be varied in this proceeding. Mr. Andriano’s Motion to Change is therefore dismissed.

Payments made by Mr. Andriano Toward Child Support

[59] In his original order dated July 3, 2015, at the request of the Applicant, Kaufman J. gave a credit of $500 per month from July 1, 2012 to July 1, 2014 for direct payments of child support made to her by the Respondent.

[60] By way of a 14B motion served on the Respondent, the Applicant asked that the credit be changed for support paid during a revised time period between July 1, 2012 to July 1, 2013, and this was granted by Kaufman J. on September 17, 2015, making a $6,000 difference to the arrears which the order created. She said that she made a “mistake” in her affidavit; it is to be noted that she made the same mistake in both of her Form 23C affidavits: the affidavit that Douglas J. ordered served which was sworn on January 14, 2015 and the second affidavit that she actually served, which was sworn March 18, 2015. Although the Respondent subsequently served and filed a 14B motion to “overlook income information” and “stop payment with Social Services until a proper decision is made by the Judge” that was dismissed by Nelson J. as an “improper 14B” on January 12, 2016.

[61] As mentioned above, there is no motion to set aside or change the order because of mistake under r. 25(19). However, in his evidence, Mr. Andriano said that he had made payments to Ms. Scarola beyond those credited to him in the two orders of Kaufman J.[^11] Mr. DiMonte asks in paragraph 12 of his Final Submissions for a credit for $4,750 for 38 direct weekly payments of $125 that Mr. Andriano made to Ms. Scarola between January 19 to July 31, 2014 and December 2 to 23, 2013.

[62] Ms. Scarola denies having received those payments. I have commented on the veracity of Mr. Andriano’s evidence and the fact that I prefer that of Ms. Scarola to the Respondent’s. However, I acknowledge that I am concerned about the “mistake” that Ms. Scarola said that she made in the two Form 23C affidavits regarding the direct payments. She was on public assistance after April of 2013, and the welfare authorities would not look favourably on undeclared child support received from the Respondent.

[63] This issue appears to have been an afterthought of Mr. Andriano. He never asked for the credit that he requested at trial in his Motion to Change. He did not testify as to these payments during his examination-in-chief; it was only raised in reply after Ms. Hirschberg cross-examined Mr. Andriano about payments on the BMW and he mentioned the child support paid to the Applicant at the same time. Then he said that all of the payments of $125 set out in his bankbook reconstructions[^12] were child support paid to the Applicant. But the Applicant denies having received any such payments in her evidence and no cancelled cheques were ever filed to prove those payments. Mr. Di Monte did not vigorously cross-examine Ms. Scarola about these payments. And because the issue of the direct payments were not raised with the Respondent during examination-in-chief, neither Ms. Hirschberg nor Ms. Paterson were given the opportunity to cross-examine the Respondent in detail about those payments because the evidence was only led in reply, albeit without objection.

[64] There is, as noted above several times, no motion to change either final order because of a mistake under r. 25(19): the only such motion was Mr. Andriano’s 14B motion which was dismissed by Nelson J. above and never renewed. Without this, or a request in his Motion to Change, it is improper for me to consider this request at trial, even though the evidence was not objected to by Applicant’s counsel. As well, the Applicant’s evidence as to those payments were lacking and unclear in its presentation.

[65] Because there was no request to account for direct payments made by the Respondent in his Motion to Change and because I do not believe that the payments were toward child support, that request is dismissed.

Orthodontic Expenses

[66] In his final order, Kaufman J. ordered that the Respondent pay 50% of Analisa’s orthodontic expenses.

[67] In her Response to Motion to Change, the Applicant states that the “total orthodontics was $6,000” and that “the Respondent still owes most of his half” and that she has “had to start paying the Respondent’s share as the orthodontist had to be paid.”

[68] In her evidence, the Applicant testified that her daughter needed orthodontic work, the costs of which Mr. Andriano agreed to split. She said that he made a couple of payments and then stopped paying. Ms. Scarola was called into the orthodontist and had to make arrangements to pay the outstanding balance, which she says she did. In the Agreed Statement of Facts filed in this proceeding, the parties agreed that Ms. Scarola paid $3,380 of Mr. Andriano’s share of the orthodontic expenses.[^13]

[69] As requested in the Applicant’s Response to Motion to Change, the amount of $3,380 shall be added to the arrears.

Total Arrears

[70] The Director’s Statement of Arrears[^14] was filed at trial and it showed arrears of $44,644 as of September 1, 2018, as of the eve of trial. Other than the payments that Mr. Andriano says he made above, no issue was taken to the calculation of the arrears.

[71] The sum of $3,380 shall be added to the arrears which are Mr. Scarola’s share of the orthodontic payments under para. 4 of the order of Kaufman J. requiring Mr. Andriano to pay 50% of Analisa’s expenses under s. 7 of the Child Support Guidelines. Therefore, total arrears as of September 1, 2018 are $48,024.

[72] Under s. 35(14) of the FR&SAEA after “determining the motion to change support”, the court “may make an order respecting repayment of arrears”. Even if I made a repayment order, that cannot be used to reinstate the Respondent’s driver’s license as the support order was not changed: see s.38(1)(d) of the FR&SAEA which requires a “change in the order” for reinstatement of the license. The Respondent will have to make an arrangement with the director under s. 38(1)(d.1) of that Act to obtain his license back.

RESULT

[73] The Respondent’s motion to change is dismissed and arrears are fixed as of September 1, 2018 in the amount of $48,024.

[74] The parties may make written submissions as to costs, directed to my judicial assistant at Barrie, commencing ten days from the date of this Judgment, firstly by the Applicant, followed by York Region Social Services and MCSS Legal Services Branch, and then the Respondent, on a ten day turnaround. Costs submissions shall be no more than seven pages in length not including offers to settle and Bills of Costs.

J.P.L. McDermot J.

Released: January 18, 2019

[^2]: O. Reg. 114/99. [^3]: R.S.C. 1985, c. 3 (2nd Supp.). [^4]: Trial Ex. 6 [^5]: See the affidavit of Rosa De Lira sworn June 27, 2017 filed as Trial Ex. 15. [^6]: Trial Ex. 14 [^7]: Trial Ex. 8. [^8]: Letter from Dr. Cooper dated November 6, 2017 filed as Trial Ex. 8 [^9]: See Trial Ex. 7, which purports to be correspondence from “Vision Catering” and which states that the Respondent can be hired back as a “relief driver” if he gets his driver’s license back. However, that letter appears to be signed by “Mario” and the signature on that letter appears to match the Respondent’s signature on his own financial statement. In other words, the letter from Vision Catering appears to be a letter drafted by Mr. Andriano to himself; he might as well have given evidence that he would have hired himself as a driver if he got his license back. [^10]: S.O. 1996, c. 31. [^11]: See Bankbook Reconstruction for the Respondent filed as Trial Ex. 11. [^12]: Ibid. pp. 345 – 347. [^13]: Para. 38 of Trial Ex. 13. [^14]: Trial Ex. 6

Andriano v. Andriano, 2019 ONSC 510

Case Summary

BACKGROUND

Result

Evidentiary Issues

ANALYSIS

Kaufman J.’s Orders of July 3 and September 17, 2015

Change in Circumstances

Heroin and Cocaine Use

Loss of License

Conclusion

Payments made by Mr. Andriano Toward Child Support

Orthodontic Expenses

Total Arrears

RESULT

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legislation 4