Court File and Parties
COURT FILE NO.: FC-08-1285-5
DATE: 20191018
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: GLORIA JANET FREEDMAN, Applicant
AND
JOEL FREEDMAN, Respondent
BEFORE: Madam Justice Julie Audet
COUNSEL: Martin Kenny, for the Applicant
Bryan Delaney, for the Respondent
HEARD: October 17, 2019
ENDORSEMENT
[1] This is a motion brought by Mr. Freedman seeking direction pursuant to an order I made on November 18, 2018 (“November 2018 Order”) in the context of enforcement proceedings initiated by the Family Responsibility Office (“FRO”) in Court File No. FC-08-1285-E10.
[2] Pursuant to the November 2018 Order, Mr. Freedman was committed to 180 days of imprisonment to be served intermittently, on weekends, unless the sum of $300,890.99 was sooner paid. Mr. Freedman was permitted to come back before me once he had repaid at least $100,000.00 of the support arrears owed so that I may consider whether his sentence should be reduced and whether the restrictions imposed by previous judges should be lifted, allowing him to bring his motion to change spousal support (and if so, under what conditions).
[3] On January 14, 2019, Mr. Freedman paid the sum of $300,890.99 to FRO. As a result, on February 5, 2019, Engelking J. rescinded the warrant of committal that had been issued following my November 2018 Order.
[4] Today, Mr. Freedman seeks the right to file his motion to change seeking the termination of his spousal support obligations, something he has tried to do since 2014. Ms. Freedman opposes this request, stating that Mr. Freedman still has outstanding cost awards which remain unsatisfied, that he has not posted security for costs as required by a previous order, and that he continues to be in arrears of support ($173,554.12) which according to previous court orders, he must pay in full before being permitted to bring his motion to change.
[5] The lengthy history of these proceedings is set out in great details in my Endorsement released on November 19, 2018 in the enforcement file. I will not repeat it here. It is sufficient for the purpose of this motion to summarize the various orders made in the past which are relevant to this motion:
On November 23, 2010, a final order was made by McLean J. based on final minutes of settlement reached by the parties. The final order provided that Mr. Freedman was to pay child and spousal support of $1,000.00 and $7,710.00 per month, respectively, starting on October 1, 2010, and based on Mr. Freedman’s yearly income of $260,409.00 (as determined by the court on the basis of an income valuation report prepared by Mr. Pittman). The support was to be reviewed on a yearly basis and the parties were required to retain Mr. Pittman (or another accountant) to calculate Mr. Freedman’s available income for support purposes, which cost was to be shared equally between them.
On September 27, 2011, Justice Annis ordered Mr. Freedman to pay costs in the amount of $9,100.00;
On September 28, 2011, Justice Abrams ordered Mr. Freedman to pay costs in the amount of $5,763.00;
On January 2, 2013, Maranger J. ordered Mr. Freedman to pay spousal support in the amount of $6,908.00 to Ms. Freedman, commencing on January 1, 2012, based on a deemed income of $216,903.00 (he also fixed arrears). He ordered Mr. Freedman to pay costs in the amount of $12,500.00;
On September 13, 2013, Mr. Freedman was ordered to pay costs in the amount of $7,750.00;
Mr. Freedman commenced another motion to change his spousal support in 2014. In the context of a Case Conference held on March 14, 2014 before Aitken J., Mr. Freedman’s motion was stayed pending payment of $12,500.00 in security for costs. Mr. Freedman was further prohibited from proceeding with any motion while he was in default of support or cost orders. It is important to note that at that time, Mr. Freedman owed approximately $145,000.00 in spousal support, and $35,113.00 in unpaid costs. Aitken J. also made a comprehensive disclosure order which Mr. Freedman was to comply with within 30 days, and she ordered him to comply with any disclosure requests that might be made by Mr. Pittman in aid of preparing the income report as required by McLean J.’s final order;
On July 16, 2014, Justice McLean ordered Mr. Freedman to pay costs in the amount of $4,500.00;
On September 8, 2016, Justice Roger made a final default order requiring Mr. Freedman to pay all arrears to date ($300,890.99) within 90 days, failing which a warrant of committal could be sought by the FRO;
At a case conference held on January 23, 2017 in the context of Mr. Freedman’s motion to change, de Sousa J. struck the matter until Mr. Freedman complied with the existing court orders for the payment of support, costs and disclosure.
[6] Having finally paid the sum of $300,890.99, Mr. Freedman now seeks permission to proceed with his motion to change. Ms. Freedman opposes on the basis that today, Mr. Freedman continues to be in arrears of spousal support ($173,554.00 has accrued since the final default order was made by Roger J. on September 8, 2016), has not yet paid outstanding cost awards, has not posted security for costs, and has not produced an income report by Mr. Pittman (as originally agreed to and ordered by McLean J. in 2010).
[7] Mr. Freedman indicates that for him to pay the amount of $300,890.99, and avoid going to jail, he was forced to sell his real estate firm. He indicates that he is presently employed and earns part-time income of $30,000.00 per annum. He states that the amount of support he has been required to pay since January 2013 far exceeded his ability to pay and is not compliant with the parties’ final minutes of settlement which required spousal support to be adjusted yearly. It was Mr. Freedman’s hope that by paying the full amount of arrears owing pursuant to the final default order, as opposed to the lower amount of $100,000.00 required to allow him to seek directions, he would be allowed to proceed with his motion to change.
[8] In my view, the facts in this case are almost identical to the facts in the case of Gauthier v. Gauthier, 2019 ONCA 722, which was heard by the Court of Appeal recently. In that case, the court stated, at paras. 7 and 8:
We appreciate, and the appellant himself admits, that his conduct since 2010 has been poor. It is undisputed that he has accumulated considerable arrears of child support. For a number of years, the appellant made no child support payments at all. However, the evidence also shows that since enforcement proceedings were taken by the Family Responsibility Office, including a period of incarceration ending in 2018, the appellant has been making regular child support payments. While these payments do not match his obligations, he has produced evidence consistent with his position that he is paying as much as his current financial situation will allow.
Orders for security for costs are a blunt instrument. They are not intended to act as a roadblock to genuine claims: Izyuk v. Bilousov, 2015 ONSC 3684, 62 R.F.L. (7th) 131 (Ont. S.C.J.), at para. 37. They should be used sparingly and carefully because they may well have the effect of barring a party from access to the court process for a proper review of existing orders — something, for example, to which a party is entitled respecting child support orders if there has been a change in circumstances: Family Law Act, R.S.O. 1990, c. F.3, s. 37(2.1). Without commenting on whether the security for costs order was appropriate when it was made, there is now enough evidence to make a prima facie case of change in circumstances warranting a review of the child support order. The outstanding order for security for costs ought not to block that review.
[9] As previously stated, when Aitken J. made her order on March 14, 2014, Mr. Freedman owed approximately $145,000.00 in spousal support, and $35,113.00 in unpaid costs. When de Sousa J. struck Mr. Freedman’s motion to change on January 23, 2017, he owed approximately $320,000.00 in arrears. However, he had sought to vary his support obligations since 2014. Although Mr. Freedman now still owes in excess of $174,000.00 in spousal support, those arrears have continued to accrue based on an order made back in 2013 and based on Mr. Freedman’s 2012-2013 income.
[10] It is important to note that since 2014, and although not compliant with Maranger J.’s 2013 order, Mr. Freedman has continuously made monthly support payments ranging between $1,700.00 to $2,000.00 per month, in addition to various amounts having been garnished by FRO.
[11] In those circumstances, I find that Mr. Freedman must be allowed to bring his motion to change without imposing any further conditions on him. However, Mr. Freedman must understand very clearly that in order to be allowed to proceed with his motion, he will be required to provide full and frank financial disclosure. Mr. Freedman has not been compliant with disclosure orders in the past, which is one of the reasons he has been forbidden from proceeding with his motion to change. He must understand that the court will be vigilant in that regard and that any failure to promptly provide full disclosure will be sanctioned by a court-imposed stay of his variation proceedings.
[12] Based on the above, I make the following temporary order:
Mr. Freedman is permitted to bring his Motion to Change spousal support;
Prior to the parties exchanging their pleadings they have agreed, and I so order, that they shall be required to exchange financial disclosure. This is in the hope that this will allow the parties to narrow down their respective claims for relief or, at the very least, formulate their respective claims with more precision and focus;
Within the next 10 days, the parties shall exchange their respective detailed lists of requested disclosure. Within 30 days thereafter, the parties shall provide the disclosure sought. To the extent that they are unable to produce a particular document or piece of information, they shall set out in a sworn affidavit the reasons why that is;
I shall case manage this matter. The parties shall immediately book a case conference before me during the month of December 2019, to be arranged through Trial Coordination.
Madam Justice Julie Audet
Date: October 18, 2019
COURT FILE NO.: FC-08-1285-5
DATE: 20191018
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: GLORIA JANET FREEDMAN, Applicant
AND
JOEL FREEDMAN, Respondent
BEFORE: Madam Justice Julie Audet
COUNSEL: Martin Kenny, for the Applicant
Bryan Delaney, for the Respondent
ENDORSEMENT
Audet J.
Released: October 18, 2019