Court File and Parties
Court File No.: FC-05-667-02 Date: 2020/02/24 Superior Court of Justice - Ontario
Re: Sue Marcellos Zelaya, Applicant -and- Santos Obel Zelaya, Respondent
Before: Justice Pam MacEachern
Counsel: Diane Aoun for the Applicant Respondent Self-Represented
Heard: February 20, 2020
Endorsement
[1] Mr. Zelaya attended court on February 20, 2020, seeking to proceed with an uncontested trial on his motion to change served on December 17, 2019. Mr. Zelaya seeks to change the Order of Justice Williams dated April 18 and July 25, 2019. He seeks to terminate child support for the parties’ youngest child, A, as of December 14, 2019, and to fix arrears of child support at $6,000, payable at $200 per month as of March 1, 2020. Mr. Zelaya also seeks to stay the Family Responsibility Office’s enforcement of the child support arrears.
[2] I declined to grant the orders requested by Mr. Zelaya on February 20, 2020. I also made an order permitting Ms. Zelaya to file her response to the motion to change, which she had served on Mr. Zelaya on February 12, 2020. These are my reasons for doing so. I also make the orders set out below for the next steps in this matter.
Ms. Zelaya’s Participation and Adjournment
[3] Ms. Zelaya attended court on February 20, 2020, with her counsel. She sought leave to file her response to the motion to change and adjourning this matter to a case conference, which I granted.
[4] Ms. Zelaya served her response on February 12, 2020 – 25 days after it was due. She did not attend the first court date on January 22, 2020. Ms. Zelaya states this is because she was ill, there were delays in her obtaining a legal aid certificate, and the intervening holiday period and her lawyer’s commitments in several trials in January prevented her from filing her response earlier. Her lawyer did send an email to Mr. Zelaya on January 27, 2020, only ten days after the due date, seeking an extension of time to file her response, but he refused.
[5] Mr. Zelaya takes the position that Ms. Zelaya should not be allowed to participate in these proceedings because she missed the filing deadline. His position is that any delay would prejudice him because he urgently needs an order suspending the Family Responsibility Office’s enforcement of the child support arrears.
[6] I find that it is fair and just for Ms. Zelaya to be granted an extension to file her response. I accept that she had several reasonable justifications for being delayed in filing a response. She should have attended the first court date on January 22, 2020, to advise the court and Mr. Zelaya that she required an extension, but I do not find that this prejudices Mr. Zelaya because of the insufficiency of his material.
[7] Mr. Zelaya filed his motion to change Justice Williams’ Order on January 23, 2019. Mr. Zelaya’s motion to change, change information form, and financial statement was served on Ms. Zelaya on December 17, 2019. Mr. Zelaya’s motion to change and change information form contains very little information regarding Mr. Zelaya’s position on why a change should be made. The only information included in these forms as to why the order should be changed is five words - “unemployed due to health reasons.” Neither of these forms includes a copy of the order sought to be changed (required at #7 of the change information form). Mr. Zelaya’s financial statement served on Ms. Zelaya does not include proof of his income for the year to date (assuming that his tax information for the previous three years was previously provided).
[8] The material Mr. Zelaya served on Ms. Zelaya on December 17, 2019, did not provide her with the material facts upon which he relied in support of his position that the child support should be changed. It is very difficult to decipher, from this material, the basis for the changes sought by Mr. Zelaya. For example, Mr. Zelaya seeks to fix arrears at $6,000 with no explanation for why they should be reduced from the sum of $17,065.05 ordered by Justice Williams. Other than his employment status, Mr. Zelaya does not provide any basis for why child support for A should end and does not plead any facts regarding her current circumstances.
[9] Although the Family Law Rules allow that technical breaches of the rules should not prevent a matter from proceeding, they also require, as a primary objective, that the proceedings be just. It is not just for Mr. Zelaya to serve deficient, unclear material on Ms. Zelaya and then seek to proceed on an uncontested basis because Ms. Zelaya, whom I find had reasonable excuses for her delay, missed a filing deadline by 25 days.
[10] Also, Mr. Zelaya is not prejudiced by Ms. Zelaya being granted leave to file her response because the evidentiary basis before me, at this time, is insufficient to warrant the order that Mr. Zelaya seeks.
[11] Mr. Zelaya seeks to change Justice Williams’ order. To do so, he must establish that there was a change in circumstances that would result in a different child support order[^1]. Mr. Zelaya’s material, however, includes a significant amount of evidence that relates to events that took place before the last date on Justice Williams’ order (July 25, 2019) as well as the earlier date of April 18, 2019. Two dates are set in Justice Williams’ order because the parties re-attended before her for the calculation of the child support arrears and ongoing monthly child support.
[12] For example, Mr. Zelaya relies on the fact that his employment ended on July 13, 2019. This evidence was before Justice Williams at the July 25, 2019 hearing. Mr. Zelaya included the same record of employment that ended on July 13, 2019, with his submissions made to the court on July 25, 2019. Aside for stating that he lost his job due to health reasons related to his dislocated shoulder, Mr. Zelaya has not provided any further evidence from his employer confirming the reasons why his employment ended, and specifically whether he ended his employment voluntarily, or involuntarily and what role his medical issues had with the end of his employment.
[13] Mr. Zelaya’s material before Justice Williams, on April 18, 2019, also included evidence that he had medical issues that impacted his ability to work, arising from a shoulder injury in 2012 or 2013. Although Mr. Zelaya has filed some medical records related to this issue, there are several issues with this evidence. First, a number of the records appear to have also been before Justice Williams. Second, there are admissibility issues that impact on what the records can be used to establish. Several records are difficult to decipher and understand. To the extent they can be deciphered, and accepted as legible copies of the true record, portions may be admissible as business records. But this does not admit the opinion evidence therein. In any event, none of the records contain any statements or opinions regarding the impact of Mr. Zelaya’s various health concerns on his ability to earn income. The only findings that I am prepared to make based on these records are that Mr. Zelaya dislocated his shoulder in around January of 2013, and, in January of 2020, he attended for an examination related to a varicose vein issue, had his cholesterol tested, and had an x-ray of his shoulder.
[14] Mr. Zelaya’s material also includes a significant amount of arguments that are attempting to re-litigate issues already determined by Justice Williams. For example, Mr. Zelaya attempts to re-litigate the issue of how much child support he paid before Justice Williams’ Order – Justice Williams has already determined this issue. Mr. Zelaya argues that the amount of arrears creates a hardship on him – Justice Williams already addressed the issue of hardship based on circumstances that took place up to the date of her decision. Justice Williams dismissed Mr. Zelaya’s argument that being required to pay arrears would be a hardship to him.
[15] It is also notable that Mr. Zelaya is effectively asserting that immediately upon Justice Williams making her decision, his circumstances changed. This is a high threshold for him to meet, particularly in the context of Justice Williams’ finding that Mr. Zelaya willingly disregarded the 2008 order of Justice Charbonneau for ten years by failing to make the monthly payment and by failing to disclose his annual income.
[16] Mr. Zelaya’s makes other arguments that undermine his credibility. These include allegations that are personal in nature against Ms. Zelaya, such as that she is a thief, a liar, is dishonest, and is not a victim. Many of these accusations relate to events that allegedly took place many years ago, well before Justice Williams’ Order. Mr. Zelaya makes several complaints against Ms. Zelaya’s counsel, including many that relate to allegations before Justice Williams’ Order. In his submissions on February 2020, Mr. Zelaya repeated his complaints that Ms. Zelaya had waited ten years to pursue child support (already addressed by Justice Williams), that Ms. Zelaya has no need for the money owed to her, that Justice Williams’ order is unfair, and that he would prefer to give the money directly to his daughter.
[17] Lastly, Justice Williams also ordered Mr. Zelaya to pay costs fixed at $6,000, plus interest running at 3% per year. Mr. Zelaya admits that he has not made any payments towards these costs.
[18] In all of the circumstances set out above, I find that it is fair and just for Ms. Zelaya to be granted an extension to file her response, and for this matter to be adjourned to a case conference. Ms. Zelaya may file her responding material within ten days of the date of this order.
[19] I am not prepared to make an interim order staying the existing order concerning ongoing child support or payment towards arrears, for the same reasons set out above. I do not find a sufficient evidentiary basis to support such an order on an interim basis.
Next Steps
[20] The next step in this matter shall be a case conference before me. Either party may schedule this conference for a date at which both parties are available.
[21] The purpose of the case conference shall include, as provided for under the Family Law Rules, identifying the issues in dispute and setting out a plan to have these issues move towards resolution in an efficient, fair, just, and proportional manner.
[22] As indicated above, this proceeding is not an opportunity to re-litigate the issues already determined by Justice Williams. Given that I do not have Ms. Zelaya’s pleadings before me, I will not make an order delineating the issues at this time. The parties should, however, be prepared for such an order to be made at the case conference. At this time, given the submissions at the motion, it appears that the only issues to be addressed are as follows:
a. Whether Mr. Zelaya should be permitted to proceed with his motion if he has not paid the existing cost order against him; b. The review of child support for A, as provided in Justice Williams’ order; c. Whether Mr. Zelaya’s change in employment as of July 13, 2019, before the last date on Justice Williams’ order, constitutes a change in circumstances upon which to change child support. This will include an examination of why Mr. Zelaya’s employment ended and whether he can provide sufficient, admissible, supporting evidence, including possibly expert opinion evidence in an admissible format, that he is not able to earn an income due to medical reasons.
[23] Again, I am not making an order at this time, determining the issues between the parties. The parties should expect this to be done at the case conference. I have indicated the issues that appear to need to be addressed so that the parties can prepare for the case conference with these in mind, request and exchange relevant, necessary and proportional disclosure in advance of the case conference, and, optimally, engage in discussions to narrow the issues further.
[24] Both parties contributed to the need for this appearance – Ms. Zelaya by not attending the first court date and Mr. Zelaya by not agreeing to a reasonable request for an extension to file a response, and seeking to proceed on insufficient material. Accordingly, each party shall bear their own costs of the appearance on February 20, 2020.
Dated: February 24, 2020
Justice P. MacEachern
Released: February 24, 2020