Robertson v. McKenzie, 2020 ONSC 1747

Court File and Parties

Oshawa Court File No.: FC-08-0474-02 Date: 2020-05-28 Ontario Superior Court of Justice – Family Court

Between: Robert Robertson, Applicant – and – Karen McKenzie, Respondent

Counsel: B. Ludmer, for the Applicant Dana Cohen, for the Respondent

Heard: May 30 & 31, 2019, November 19, 20, 21, 22 & 25, 2019

Decision

Fryer, J

I. Introduction

1Mr. Robertson brought this, his second Motion to Change to vary his child and spousal support obligations, and to completely rescind the arrears which currently stand in excess of $700,000.

2This was the third multi-day trial in which this court has been asked to look at Mr. Robertson’s income and his ability to pay both child and spousal support. As will be seen, little has changed in the narrative of each party.

3Mr. Robertson’s legal troubles began shortly after separation when, for reasons still unclear, he transferred his 50% interest in a lucrative flooring business to his business partner of many years and his income declined from approximately $250,000 to $60,000.

4Mr. Robertson’s story was not accepted by Magda J. who presided over the first trial. Magda J. imputed an income to Mr. Robertson at the former level and set child support for the parties’ two children and spousal support commensurately.

5Mr. Robertson initiated, and later abandoned, an appeal of Magda J.’s decision and days later brought his first Motion to Change. Nelson J. heard the trial of that variation proceeding, found that there was no material change in circumstances, and dismissed the motion.

6In the current Motion to Change, Mr. Robertson’s position is that “the premises [sic] of the level of income imputed has proven to be mistaken” and that his actual income has never approximated the imputed income such as “to make the accumulated arrears punitive, unjust, and physically impossible to ever satisfy”. He also relies on certain changes to Ms. McKenzie’s financial circumstances to ground the relief being sought.

7In his various bids to reduce or eliminate his support obligations to Ms. McKenzie, Mr. Robertson has paid in excess of $600,000 to lawyers.

8Ms. McKenzie concedes that as her income has increased, Mr. Robertson’s spousal support obligation should terminate, and child support should be adjusted with the balance of the Motion to Change otherwise being dismissed.

9Ms. McKenzie is also seeking that Mr. Robertson be declared a vexatious litigant.

II. Background

1. Parties’ Relationship and Financial Circumstances

10The background of the parties’ relationship and the circumstances leading up to the trial before me are set out in detail in the judgments of Magda J. and Nelson J. and it is not necessary to repeat them herein. I have simply highlighted some of the key points in the chronology and later refer to certain findings made by my colleagues.

11Mr. Robertson and Ms. McKenzie were married for twelve years. They separated October 1, 2007. Mr. Robertson asserts that Ms. McKenzie was having an affair.

12The parties have two children: Brianna Emily Robertson born September 13, 1999 and Reilly Alexander Robertson born June 16, 2004. The parties have had equal shared parenting since about July 2009. In or around September 2017 Brianna started her post-secondary education and she recently started living away from home to attend university at the University of Toronto.

13In the years preceding the parties’ separation, Mr. Robertson and his high school friend, Jeffrey Steiner ran their business S & R Flooring Concepts Inc. selling and installing carpet and flooring. The business was successful and they each earned a good income in the range of $250,000 to $300,000 by the time of separation.

14Shortly after the separation however, Mr. Robertson sold half of his interest in the business to Mr. Steiner and sometime later sold him the balance of his interest.

15Details of these transactions and questions relating to the prudence of Mr. Robertson’s decision to sell his interest were canvassed at some length by Magda J. in his trial decision.

16By the time of the trial before Magda J., Mr. Robertson was working as an employee for an unrelated flooring company and, according to his evidence, earning approximately $65,000 per year. The issue of whether an income should be imputed to Mr. Robertson for the payment of child and spousal support was a live issue at the first trial and as noted above Magda J. imputed an income to him in the amount of $284,000.

17At the time of the trial of his first Motion to Change in November 2014, Mr. Robertson was still working for Sands Flooring and earning $65,000.

18Mr. Robertson’s employment with Sands terminated in or around April 2015 and he collected employment insurance benefits for several months thereafter.

19Mr. Robertson commenced this Motion to Change in February 2016.

20Shortly after instituting these proceedings, in April 2016, he obtained his current position as a commissioned salesperson for another flooring company, McLure White Commercial Flooring Ltd., where he remains employed to date.

21At the time of the first trial, Ms. McKenzie had only recently returned to work as a teacher. Her full-time teaching career had been interrupted by the birth of the children. Although she returned to work part-time after Brianna was born, she stayed home for two years after Reilley’s birth. These decisions impacted her status with the Toronto District School Board. Ms. McKenzie returned to part-time work in the year prior to separation earning approximately $45,000.

22In or around October 2015, after the second trial, Ms. McKenzie obtained full-time employment as a teacher earning in excess of $95,000.

23Mr. Robertson married Donna Robertson in December 2010. Donna Robertson works as a real estate agent as well as owning and operating several other businesses.

24Ms. McKenzie has not re-partnered.

25When the trial before me commenced, Mr. Robertson owed Ms. McKenzie:

a. Retroactive lump sum child and spousal support per the order of Magda J.: $287,756 b. Approximate arrears of child and spousal support that have accrued since Magda J.’s judgment: $387,000. c. Costs ordered by Magda J. to be paid forthwith: $42,982.62 d. Costs ordered by Nelson J. to be paid forthwith: $20,000

2. Court Proceedings

(a) Decision of Magda J. dated June 11, 2012

26The first round of litigation between these parties culminated in a five-day trial before Magda J. in February 2012. Mr. Robertson had been represented by counsel leading up to the trial but was self-represented at trial.

27Magda J.’s order in Robertson v. McKenzie, 2012 ONSC 3343, which remains the operative order, included the following provisions:

• Mr. Robertson is to pay retroactive lump sum child and spousal support for the period from January 2008 to February 2012 fixed in the amount of $287,756.
• Mr. Robertson is to pay child support for the two children in the amount of $2,866 based on his imputed income of $284,000 and Ms. McKenzie’s income of $45,000 from part-time teaching.
• Mr. Robertson is to pay spousal support of $4,000 per month.

28Magda J. made some of the following findings that bear upon the issues before me:

• None of the factors outlined in the evidence of Mr. Robertson or his former partner, Mr. Steiner, could “justify a divestiture of equity in the very profitable enterprise these men started as boyhood friends”: para. 29
• Mr. Robertson “lacks credibility and his protestations seem hollow”: para. 33
• Mr. Robertson’s “approach to disclosure was certainly of a “catch me if you can” nature”: para. 37
• Mr. Robertson is intentionally underemployed. His lowest income between 2006 and 2009 was $168,000. To “take a dropin income of $200,000 per year stretches credibility beyond any limits”. There is “no evidence before the court that the applicant father is doing anything different than he did at S & R Flooring Concepts Inc. for the past 28 years”: para. 41
• Mr. Robertson’s new spouse is ill with a serious disorder and has contributed about $40,000 to that family unit’s income but “this is tenuous”: para. 46.
• Due to the inadequate disclosure provided by Mr. Robertson, an income of $284,000 was imputed for the year 2012 and ongoing. Magda J. noted that Mr. Robertson’s business partner had earned in excess of $500,000 that same year and held that Mr. Robertson “made the conscious choice to earn so much less that he must bear the consequences”: para. 52.

29In a subsequent decision, Magda J. ordered Mr. Robertson to pay costs in the amount of $42,982.62 forthwith. These costs were enforceable by the Family Responsibility Office.

(b) Appeal

30Mr. Robertson initiated an appeal of Magda J.’s order. On September 6, 2012 he brought a motion to stay both the retroactive and ongoing order.

31Goudge J.A. dismissed his request to stay the ongoing support order. Ms. McKenzie consented to a partial stay of the lump sum amount and the Court of Appeal ordered that Mr. Robertson pay half of the lump sum into his lawyer’s trust account within 30 days.

32Goudge J.A. made the following comments in his endorsement:

• Mr. Robertson’s “sorry record of non compliance with court orders and his failure to make many payments but rather to act in his own interest is the antithesis of the kind of circumstances justifying the stay of ongoing support orders”.
• In considering the three-part test for a stay of the lump sum: “the equities however all point against the appellant. His cavalier conduct in failing to make agreed to support payments, in failing to comply with court orders, in acting in his own financial interest at a cost to his obligations and in obscuring his financial trail engenders no sympathy”.

33Mr. Robertson failed to pay the requisite amount into trust, and he abandoned the appeal on January 10, 2013.

(c) Decision of Nelson J. dated January 28, 2015

34Mr. Robertson commenced his first Motion to Change three days after abandoning his appeal.

35The three-day trial proceeded before Nelson J. in November 2014. Mr. Robertson was represented by counsel at the trial.

36Just prior to the commencement of the trial the parties reached a partial settlement wherein Mr. Robertson specifically agreed “not to bring any future court proceeding to rescind or vary the amounts of retroactive support owing” (being the retroactive lump sum support made by Justice Magda in the final order). The consent agreement was incorporated into the order of Nelson J. dated November 26, 2014.

37In his decision released January 28, 2015 Nelson J. dismissed Mr. Robertson’s Motion to Change (Robertson v. McKenzie, 2015 ONSC 654) and held as follows:

• “I accept the fact that the applicant earns about $65,000 a year. It seems to me that Magda J. accepted this fact as well.”: para. 17
• “One would have thought then, that in order to satisfy the onus to provide, not only a change in circumstances, but also a different income level, the applicant would try to satisfy the court that he could not earn the income imputed to him at trial. One would have thought that the evidence marshalled at trial would show that, notwithstanding reasonable efforts made, the applicant could not now earn the income imputed to him at trial. It is not good enough to say, as Pazaratz J. pointed out in Trang [Trang v. Trang, 2013 ONSC 1980], “I told the judge I was earning about $60,000 then and I am earning that amount now.” If that were the case this court would have to find that the original order was wrong.”: para. 23
• If a change is to be considered a material change, it must be based on the realistic and reasonable efforts made by the applicant to better his income position. What efforts, then, has the applicant made to demonstrate he can only earn about $65,000 a year?
• He was working for a flooring company called Sands at trial. He is still working for the same company: para 25
• His expenses, as set out in his sworn financial statement at trial, are even lower today as he is not carrying the expenses of two homes as he was at trial.: para 26
• No evidence was presented by the applicant of any job searches that might generate a higher income. : para 27
• The applicant testified that he thought he would qualify for his company’s bonus plan; however, due to a customer problem, that did not transpire. No one from the company nor anyone else was called by the applicant to testify as to the veracity of this statement. : para 28
• The only evidence relied upon by the applicant on this issue of his income was that his prospects for a bonus looked good this year as he was engaged in contractual discussions with a mosque or mosques. No details at all were given to the court about the bonus. : para 29
• The applicant earned a very high income as a partner in a flooring company in the years preceding the trial before Magda J. He was asked about efforts made to engage as an owner in a similar business now. His answer that he could not raise sufficient credit with a lending institution made some sense, but again, specifics were not forthcoming. There was no evidence presented which showed any efforts on the applicant’s part that he had taken Magda J.’s reasons to heart and, therefore, embarked upon reasonable efforts to find a more lucrative job. : para 30
• Some of Mr. Robertson’s “conduct since the making of the final order has not been commendable.”: para. 35
• Mr. Robertson’s counsel “submits that the court should craft a practical solution to the problem of the large outstanding arrears, especially as it appears unlikely that they will be paid.”: para. 36
• “Even though the court recognizes the difficulty presented by dismissing the applicant’s motion, the court cannot manufacture a material change in circumstances where there is none”: para. 44

38Following the trial, Nelson J. ordered costs payable to Ms. McKenzie in the amount of $20,000. These costs are also enforceable by the Family Responsibility Office.

III. Issues

1. Has there been a material change in circumstances?

39Mr. Robertson’s position is that there has been a material change in both his circumstances and in Ms. McKenzie’s circumstances that open the door to the relief he is seeking, namely a rescission of all arrears and that child support be paid to him by Ms. McKenzie based on her proportionately higher income. Mr. Robertson had also sought spousal support from Ms. McKenzie, but he withdrew that claim prior to trial.

40In his Change Information Form, Mr. Robertson states that the following are the “material changes” upon which he is relying:

1. My actual income generated from my full-time employment since 2012 was in fact so far below the level of income imputed to me of $284,000 as to make the accumulated arrears punitive, unjust and physically impossible to ever satisfy;
2. The premises [sic] of the level of imputed income has been proven to be mistaken and impossible to have ever [been] satisfied even when originally ordered, as my business [had] already been sold and I was already just a commissioned employee;
3. I have not earned even remotely close to the income that was imputed to me of $284,000 for support purposes from January, 2012 ongoing to present;
4. I was released from my employment at S & R Flooring in December, 2011;
5. I was able to obtain a job at Sands Commercial Flooring commencing January, 2012. I lost my employment there in April, 2015 and have not been able to obtain employment since;
6. I have no assets left and little ability to earn more than a subsistence income. I am in declining physical health and the burden of the support arrears and order are negatively affecting the children.
7. The children are also older and have expressed a desire to spend more time with me than their mother.
8. The parties’ respective means, needs and circumstances are such that the current support Orders are crippling, punitive, unjust and impossible to satisfy and are effectively impacting the children.

41Section 17(1)(a) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) provides that:

17 (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, (a) a support order or any provision thereof on application by either or both former spouses.

42With respect to a motion to vary a child support order, the court shall: “satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.”: s. 17(4) Divorce Act.

43In terms of a variation of spousal support, under section 17(4.1) of the Divorce Act:

(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration

44The moving party on a Motion to Change, in this case Mr. Robertson, bears the burden of proof: see Ruffolo v. David, 2016 ONSC 754, 75 R.F.L. (7th) 16 (Div. Ct.); Trang v. Trang, 2013 ONSC 1980, 29 R.F.L. (7th) 364, at para 55.

45“An application for a variation order is not an appeal of the original order”: see Gray v. Rizzi, 2016 ONCA 152, 129 O.R. (3d) 201, at para. 26 citing to Willick v. Willick, [1994] 3 S.C.R. 670 (S.C.C.), at para 17.

46In a variation proceeding:

[…] it must be assumed that, at the time it was made, the original child support order or the previous variation order accurately assessed the needs of the children having regard to the means of the parents. As such, the correctness of the previous order must not be reviewed during the variation proceeding. The previous order will not be departed from lightly and will only be varied if the requirements under s. 17(4) of the Divorce Act are properly satisfied: Willick, at para 18.

47A material change is one such that: “if known at the time, would likely have resulted in different terms. The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time, it cannot be relied on as the basis for variation.”: Willick, at para. 20.

48The benchmark for the determination of material change is the prior order and “the circumstances in which it was made”: L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775, at para. 33.

49Mr. Robertson argued at least initially that as Nelson J. dismissed his Motion to Change, the benchmark from which the material change was to be assessed was still Magda J.’s decision. However, sections 17(4) and 17(4.1) of the Divorce Act refer to changes since the last order or the last variation order. The “circumstances necessary to trigger the right to seek a variation must occur after the date of the last variation order”: Di Francesco v. Couto, [2001] 56 O.R. (3d) 363, at para. 27.

50Mr. Robertson also argued that Nelson J. specifically left it open to him to go behind the dismissal order. He refers to paragraph 47 of Nelson J.’s judgment wherein Nelson J. details the limited options available to Mr. Robertson of which one is “marshalling of sufficient evidence to demonstrate that imputation of income is no longer correct”. It was clear that Nelson J. was troubled by the set of circumstances (as am I) but felt that Mr. Robertson had left him with little choice. Nelson J.’s order was simply to dismiss the Motion to Change. In my view this obiter comment in no way alters Mr. Robertson’s obligation to demonstrate that there has been a material change in circumstances since Nelson J.’s order was made.

51What has materially changed since Nelson J.’s judgment released January 28, 2014?

52Mr. Robertson admitted that some of the initial grounds set out in his Change Information Form were not in fact material changes including those in which he suggested that the original decision of Magda J. was made in error. Mr. Robertson’s position can be distilled down to the following:

a. The level of income imputed to him by Magda J. was improper from the beginning and the passage of time has demonstrated that he is unable to earn that level of income. b. Ms. McKenzie’s financial means are far greater than his and the children should not be subject to such varied standards of living. c. He suffers from health issues that impair his ability to work. d. The children are older and are seeking to spend more time in his care.

53In Trang Pazaratz J. dealt with the issue of a variation of imputed income. I have reproduced several paragraphs of his decision as they are particularly apt in this case as they were in the previous trial before Nelson J. (emphasis in the original):

51 When a court imputes income, that's a determination of a fact. It's not an estimate. It's not a guess. It's not a provisional order awaiting better disclosure, or further review. It's a determination that the court had to calculate a number, because it didn't feel it was appropriate to rely on — or wait for — representations from the payor.

52 A party who argues that an imputed income level is no longer appropriate must go beyond establishing their subsequent "declared" income. They must address why income had to be imputed in the first place. They must present evidence of changed circumstances which establish that either: a. It is no longer necessary or appropriate to impute income. The payor's representations as to income should now be accepted, even if they weren't accepted before. Or, b. Even if income should still be imputed, changed circumstances suggest a different amount is more appropriate.

53 If "declared income" automatically prevailed on a motion to change support, it would defeat the purpose of imputing income in the first place. It might even be a disincentive for payors to participate in the initial court process. They could simply ignore support Applications — as they often do. They could wait to see if the court imputes income, and how much. If dissatisfied with the amount, the payor could later return to court waving their tax returns, to suggest that the original judge got it wrong.

54 Support claimants should not be forced to go through this two-step process. Our family court system certainly can't afford it.

55 Similarly, the onus should not fall on the support recipient to establish why income should still be imputed on a motion to change. That determination has already been made. The onus is on the support payor to establish that there should be a change in the way their income is to be calculated.

56 If for example the original support order imputed income because the court concluded an unemployed payor should have been working, it would be illogical to allow the payor to extinguish that determination by returning on a motion to change, with proof that he wasn't working. That wouldn't constitute a change in circumstances.

57 If a trial judge imputed income to a self-employed person on the basis that their tax return didn't reflect cash sales and excessive write-offs, there should be a presumption that so long as the payor maintains the same business activities and accounting practices, subsequent tax returns will be equally unreliable.

58 Imputed income matters. The reason why income had to be imputed matters.

54Trang was cited with approval in Gray and Pustai v. Pustai, 2014 ONCA 422, 47 R.F.L. (7th) 56.

55At the time of the trial before Magda J., Mr. Robertson was working as a commissioned salesperson for Sands Flooring earning $65,000. Magda J. held that there was no evidence that Mr. Robertson was doing anything different than he had been doing with S & R Flooring Concepts Inc. (the business he owned with his friend) for the past 28 years. Magda J. found that Mr. Robertson was intentionally underemployed and imputed an income to him of $284,000.

56At the time of the second trial, Nelson J. found that Mr. Robertson was still working for Sands Commercial Flooring and still earning $65,000. Nelson J. queried why Mr. Robertson had not adduced evidence to demonstrate that “notwithstanding reasonable efforts made, [he] could not now earn the income imputed to him at trial”.

57The evidence in chief in the trial before me was given primarily by affidavit. Under the circumstances where each party had a chance to craft the evidence and their narrative carefully with the assistance of counsel, the court would expect Mr. Robertson to leave no stone unturned. However, Mr. Robertson chose to focus the vast majority of his evidence on the circumstances pre-dating the trial before Nelson J. As will be seen, there were significant and, in my view, deliberate omissions in his evidence with respect to his current financial circumstances.

58Mr. Robertson’s employment at Sands Commercial Flooring was terminated in April 2015. Mr. Robertson stated that despite being terminated, the terms of his contract with Sands prohibited him from seeking employment in the same industry. Mr. Robertson did not provide details as to how his sales commissions were calculated at Sands or provide a credible explanation as to why he was having so much difficulty in meeting his sales targets.

59In the section of his affidavit sworn May 8, 2019 entitled “Job Search Efforts and Inability to Start a Business”, Mr. Robertson states in a very superficial fashion how he “reached out” to various possible employers after he ceased working at Sands. He did not provide dates of his inquiries or any independent evidence of the responses received.

60Mr. Robertson suggests that the termination of his employment with Sands constitutes a material change in circumstances however, shortly after commencing this Motion to Change on April 20, 2016, Mr. Robertson obtained his current employment with McLure White Commercial Flooring Ltd. as a commissioned salesperson selling commercial flooring. Although Mr. Robertson’s reported income for the past three years has been negligible, he suggested that the court could impute an income of $65,000 to him.

61Mr. Robertson advised that there is no contract with McLure White, but he is paid 40% of the “gross profit”. He professed not to know how “profit” might be calculated by his employer despite the fact that he had owned and operated a similar business for many years. Then, despite his apparent lack of knowledge, he delivered an updated Financial Statement, sworn November 19, 2019, wherein he purported to calculate gross profit and the amount of commission income he expected to receive.

62Mr. Robertson told the court that he earned approximately $19,000 in 2018 and had earned little or no income in 2019 despite working for McLure White for three years. He stated that the reason he had not been paid more was because his employer had not yet been paid for the contracts, including one for Scotiabank, but he thought he might be entitled to $40,000 in commission income. Again, there was no independent or credible documentary support for these speculations.

63Mr. Robertson admitted under cross-examination that he had no explanation as to why he would work for the past 1 ½ years for McLure White essentially for free. When asked by counsel for Ms. Robertson on more than one occasion to confirm that his position was that he has “zero income”, he stated that his position was that “he had received no income to date”.

64Mr. Robertson admitted that he had no evidence with respect to how many hours he is working for McLure White and if this even constitutes full time employment.

65Mr. Robertson declined to call a representative of his employer to provide independent evidence with respect to these various issues. His failure to put this detailed information before the court, preferably through an independent third party, speaks volumes about Mr. Robertson’s lack of transparency and I draw an adverse inference therefrom. This is remarkably similar to his case before Nelson J., wherein Nelson J. questioned why no one was called to confirm the veracity of his statements regarding his current income.

66Although his employer has changed, the nature of Mr. Robertson’s employment is essentially the same as it was in the trial before Nelson J. Mr. Robertson continues to work as a commissioned flooring salesperson and he continues to earn an income of $65,000. In this respect I find there is no material change in his circumstances.

67Magda J. found that Mr. Robertson was underemployed. Nelson J. found that Mr. Robertson had still not satisfactorily explained what reasonable efforts he had made to obtain alternate employment and why notwithstanding such reasonable efforts, he could not now earn the income originally imputed to him. In the trial before me Mr. Robertson still failed to satisfactorily address this issue. Other than a brief reference to inquiries he made after the end of his employment with Sands, Mr. Robertson provided little or no evidence of efforts to find other more lucrative employment.

68Mr. Robertson stated that he had “visited the bank” to see if he could obtain a business loan. He provided no independent evidence as to the bank’s response to his request.

69Overall, Mr. Robertson’s evidence with respect to his current income and his income earning ability was incredibly scant, particularly given the legal stakes and the fact that two previous judges had made negative findings of credibility and had been critical of his documentary disclosure. Mr. Robertson’s failure to adduce basic evidence regarding his current income was also noteworthy as in many respects both Magda J. and Nelson J. had provided the evidentiary roadmap for Mr. Robertson to follow in a future Motion to Change.

70Mr. Robertson also submits that his overall financial circumstances have declined since Nelson J.’s decision whereas Ms. McKenzie’s financial condition has markedly improved.

71In his Financial Statement sworn November 19, 2014 for the trial before Nelson J., Mr. Robertson stated that he had minimal assets. He was liable for a mortgage in the amount of $438,000 and he also had a car loan and a balance on his credit cards. He owed his parents $38,000.

72According to his most recent Financial Statement sworn November 19, 2019, Mr. Robertson still has few assets. He no longer has the mortgage debt or a car loan. He was able to obtain a line of credit and a Mastercard and he now owes almost $30,000 on those two accounts. He continues to owe his parents $38,000.

73Mr. Robertson admitted under cross-examination that his financial circumstances are essentially unchanged from the time of the trial before Nelson J. He had few assets at the time of the trial before Nelson J. and the same is true now. His debts, other than his child and spousal support arrears, have decreased.

74Mr. Robertson spent some time dealing with the issue of Ms. McKenzie’s net worth, cross-examining her at some length. He attempted to compare his own individual circumstances with Ms. McKenzie’s and he even created a comparison chart for this purpose. However, unlike Ms. McKenzie who has not re-partnered, Mr. Robertson has been married to Donna Robertson for many years and the degree to which their financial affairs intertwined was an open question.

75In their affidavits filed as their evidence in chief for the trial, both Mr. Robertson and Donna Robertson described their financial circumstances as so dire that they were forced to sell furniture off their front porch; something that was witnessed by the children. Donna Robertson stated that her children and Mr. Robertson’s children had to obtain their clothing from donation services, and they relied on loyalty points to make ends meet.

76As the evidence unfolded, it became apparent that the reality is somewhat different.

77The Robertson’s continue to live in the same home in Courtice where they were living when the trial before Nelson J. proceeded. This is an eight-bedroom, five-bathroom triplex with two kitchens. It came out in cross-examination that part of the home is rented to Mr. Robertson’s parents and part to other tenants who also pay rent. The Robertson children each have their own bedroom in the home.

78Mr. Robertson transferred his interest in this home to Donna Robertson prior to the second trial and Nelson J. concluded that he had done so to put it “beyond the reach of the respondent (and to escape enforcement by FRO): Robertson v. McKenzie, 2015 ONSC 654, at para. 37.

79Donna Robertson has since purchased a vacation trailer on Buckhorn Lake in the Kawarthas.

80Mr. Robertson and Donna Robertson have taken holidays to Florida and Cuba.

81Despite her ongoing health challenges Donna Robertson continues to work as a real estate agent. She volunteered little other information about her income in her affidavit evidence in chief. In his Financial Statement sworn November 19, 2019 Mr. Robertson declined to state Donna Robertson’s income; he simply noted that she receives commissions and is responsible for 90% of the household expenses.

82In addition to real estate sales, Donna Robertson operates a number of other businesses. One such business, called Platinum Transitions, helps seniors move out of their homes and sell their excess furniture. She admitted that the furniture sales referred to in her affidavit as evidence of impecuniosity were actually related to this business. She has another business called Evolution Support Services in which she employs staff to assist seniors or those with disabilities to remain living in their own home. She said that she was not paid a salary by Evolution Support Services but provided few if any other details.

83In May 2019 Robert and Donna Robertson started up a new business call Mosaic Creatives, the nature of which was not clear. Donna Robertson rented a 3,500 square foot premise out of which to operate the business and paid for some leasehold improvements. Mr. Robertson initially denied that such premises had been leased and then later corrected himself. Donna Robertson advised that there were 65 people working in “the store” and that the business was “paying for itself”. Mr. Robertson was evasive when asked about the extent of his contributions to the business.

84When asked in cross-examination if it was possible that Mr. Robertson’s income was lower because he was helping with her businesses, Donna Robertson confirmed that she and Mr. Robertson are a team. She also admitted that her financial picture is intertwined with Mr. Robertson’s.

85The degree to which Mr. Robertson works with or for Donna Robertson remained markedly unclear. When asked why she had never provided details of her financial circumstances in this case, Donna Robertson’s response was that this had never been requested. Ms. McKenzie does not bear the burden of proof and it was not her obligation to ferret out this information. The court would have expected Mr. Robertson to volunteer this information himself and to supplement it with evidence from Donna Robertson in order to foreclose any questions. He was represented by experienced counsel and this was his third trial of essentially the same issues; again, I draw an adverse inference from his failure to adduce this evidence.

86Despite Donna Robertson’s stated health issues and Mr. Robertson’s alleged inability to earn more than a “subsistence income”, they appear to be able to run a number of businesses and their lifestyle appears essentially unchanged, perhaps even enhanced since the time of Nelson J.’s judgment.

87Mr. Robertson indicated that he was not able to find alternate employment for several months after his employment with Sands ended as he was “mentally, physically and emotionally exhausted which resulted in health issues”. He did not provide any independent evidence of a medical impediment to employment for this or any other period.

88While I am sure that Mr. Robertson finds it stressful to have such a large debt looming over him, the evidence did not suggest that he suffers from a health condition that impairs his ability to find more lucrative employment. Under the circumstances, including the negative credibility findings already made, if Mr. Robertson planned to hinge his case on this issue, it was incumbent upon him to produce a report from a medical professional or other credible, independent evidence.

89What if any material changes have there been to Ms. McKenzie’s circumstances? The obvious one is that Ms. McKenzie’s income has doubled. At the time of the previous two trials she was working part time as a teacher. In or around October 2015, she obtained a full-time teaching position and her income for the past few years has been as follows:

2016 - $95,523 2017 - $97,165 2018 - $97,862 2019 - $99,528

90Ms. McKenzie acknowledged that the change in her income constituted a material change in circumstances. She consented to a termination in spousal support effective from the commencement of the Motion to Change on February 1, 2016. She also consented to adjust her child support obligation commencing at this same time.

91Mr. Robertson’s position is that in addition to her increase in income, Ms. McKenzie’s overall financial circumstances have improved such that this constitutes a material change in circumstances warranting a retroactive variation of his support obligations and a rescission of his arrears.

92According to her Financial Statement, sworn May 13, 2019, Ms. McKenzie continues to own the former matrimonial home that she valued at $769,000. She has a Teacher’s Pension that she did not value as well as roughly $12,000 in RRSP’s. She has a mortgage of approximately $209,000 and a line of credit with a balance of $172,000 along with various credit card debts totaling approximately $19,000.

93With one exception, at the time of the trial before Nelson J., Ms. McKenzie’s financial circumstances were not dissimilar.

94Ms. McKenzie’s father passed away in February 2018. She is a one-third beneficiary of her father’s estate.

95While I generally found Ms. McKenzie forthright in her evidence, she was reticent to volunteer information with respect to her interest in the estate and somewhat oppositional during cross-examination on this subject. However, overall, I found her evidence on this subject sufficiently credible and reliable.

96The estate owns one small bungalow located in Scarborough. Ms. McKenzie’s grandmother, who died without a will some time ago, owns the property next door. Ms. McKenzie acknowledged that the total value of these two properties could be $1.2 million. She also acknowledged that the debts of the estate would likely not exceed $100,000. Her ultimate one-third interest as a beneficiary could be roughly $370,000.

97While Ms. McKenzie has experienced an improvement in her financial circumstances since Nelson J.’s judgment, I do not find that Ms. McKenzie’s lifestyle or means have become so markedly enhanced when compared to Mr. Robertson’s (such as one could glean from the evidence adduced) or otherwise such as to constitute a material change in circumstances warranting a further adjustment to Mr. Robertson’s support arrears or his prospective support obligation beyond those changes already conceded by Ms. McKenzie.

98Brianna is still a child of the marriage. She lived at home for the first two years of her post-secondary education. Brianna recently started to attend the University of Toronto and during the school year resided in a rented apartment. Reilley continues to reside more or less equally with his parents in the same shared parenting arrangement. The parties agreed that child support for Brianna should be adjusted and that she should be treated as a “summer child” for the purpose of set-off child support.

2. If yes, what are the available remedies?

99In L.M.P., at para. 50, the Supreme Court of Canada held that:

[O]nce a material change in circumstances has been established, the variation order should “properly reflec[t] the objectives set out in s. 17(7), ... [take] account of the material changes in circumstances, [and] conside[r] the existence of the separation agreement and its terms as a relevant factor” (Hickey, at para. 27). A court should limit itself to making the variation which is appropriate in light of the change. The task should not be approached as if it were an initial application for support under s. 15.2 of the Divorce Act.

100It is not open to the court to simply make a fresh order once a material change in circumstances has been identified. Rather, one must compare all of the various circumstances of the parties at the time of the original order to the circumstances at the time of trial: Pustai, at para. 26.

101The earliest material change in circumstances that I have identified is Ms. McKenzie obtaining full-time employment in October 2015. She has worked full time as a teacher since.

102Ms. McKenzie consents to the adjustment to the support obligations taking effect as of the date of the commencement of the Motion to Change in February 2016. I find that it is appropriate to make the change effective as of January 1, 2016 based on her full-time income for that year.

103Mr. Robertson suggested that an income should be imputed to Ms. McKenzie for an earlier period when she was working part-time as a teacher as she was intentionally under-employed: see Federal Child Support Guidelines, SOR/97-175, s. 19(1)(a). He argued that as the children were in her care only 50% of the time under the shared parenting schedule and as the children were older in any event, she could have sought out and obtained a full-time teaching position earlier on.

104Ms. McKenzie explained that she only returned to work as a teacher in the year prior to the separation and that she had looked for full-time teaching work on and off since then without success.

105Mr. Robertson also suggested that it was unreasonable for Ms. McKenzie not to seek out work during the summer months. Ms. McKenzie explained that at the time in question, she would have had to pay for daycare for the children during her time away from them, the cost of which would offset much of the additional income.

106I do not find that Ms. McKenzie has been intentionally underemployed and therefore decline to impute an income to her for any period.

107I have not found that there was any material change in Mr. Robertson’s circumstances since Nelson J.’s order. This circumscribes the remedies available to Mr. Robertson in terms of the exercise of the court’s discretion to rescind the arrears of support that have accrued. The fact that there has been a material change in Ms. McKenzie’s financial circumstances does not open the door to a wholesale review of Magda J.’s order in favour of Mr. Robertson.

108In Gray the Court of Appeal confirmed at para. 45 that the following principles apply to retroactive variations of child support even when arrears have accumulated:

In S. (D.B.) v. G. (S.R.), [2006] 2 S.C.R. 231, the Supreme Court of Canada extensively canvassed the principles applicable to a request to vary child support payments. The court identified four factors that a court should consider before making a retroactive child support order: (i) the reason why a variation in support was not sought earlier; (ii) the conduct of the payor parent; (iii) the circumstances of the child; and (iv) any hardship occasioned by a retroactive award: paras. 94 to 116. The court also held that, as a general rule, the date of effective notice should serve as the date to which the award should be retroactive: para. 118. Finally, it usually will be inappropriate to make a support award retroactive to a date more than three years before formal notice was given: para. 123.

109The principles in S. (D.B.) also apply to a retroactive variation of spousal support having regard to the particular legal principles and objectives applicable to spousal support: Gray at para. 93 citing Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269 at para. 207.

110It is not necessary to engage in a further, detailed S. (D.B.) analysis as Ms. McKenzie has conceded that child and spousal support should be adjusted retroactive to a date shortly after the change, and that change was only four months before Mr. Robertson issued a formal notice by commencing his Motion to Change, well within the presumptive three year period.

111The primary thrust of Mr. Robertson’s case was that once the court has identified a material change in circumstances – the hook – then the door is opened for the court to consider a rescission of arrears.

112There are cases wherein the court has rescinded arrears that accrued during a period when the support payor is deemed to have had the ability to pay if there was a later material change in circumstances impacting that person’s ability to ever satisfy the outstanding arrears.

113For example, in Trembley v. Daley, 2012 ONCA 780, 23 R.F.L. (7th) 91, the Court of Appeal upheld the trial judge’s decision to retroactively adjust the arrears based on the father’s actual income after finding that the father’s loss of several fingers constituted a catastrophic injury that directly affected his ability to work in his usual field of employment. The Court of Appeal in Gray referred to Trembley at para 53 and confirmed that “[i]n those circumstances, it would be understandable that the court would take into account the ability of a payor to satisfy existing support arrears given the payor’s permanently diminished earning capacity stemming from the catastrophic injury.”

114However, in Di Francesco the Court of Appeal held at para. 22:

The finding of a present incapacity to pay does not, of itself, foreclose the prospect of ability to pay in the future. In Haisman v. Haisman (1994), 1994 ABCA 249, 7 R.F.L. (4th) 1 (Alta. C.A.) Hetherington J.A. said the following at paragraphs 26 - 27:

A present inability to pay arrears of child support does not by itself justify a variation order. It may justify a suspension of enforcement in relation to the arrears for a limited time, or an order providing for periodic payments on the arrears. However, in the absence of some special circumstance, a variation order should only be considered where the former spouse has established on a balance of probabilities that he or she cannot pay and will not in the future be able to pay the arrears.

In short, in the absence of some special circumstance, a judge should not vary or rescind an order for the payment of child support so as to reduce or eliminate arrears unless he or she is satisfied on a balance of probabilities that the former spouse or judgment debtor cannot then pay, and will not at any time in the future be able to pay, the arrears.

115In Di Francesco the Court of Appeal declined to rescind the arrears despite upholding the trial judge’s finding that Mr. Couto no longer “had the capacity to generate sufficient income to pay the original support order” and that he suffered from chronic alcoholism as “Mr. Couto [had] not demonstrated either a present willingness to support his children voluntarily, or an accurate picture of his future capacity to contribute to outstanding arrears”.

116Mr. Robertson did not establish that there has been a material change in his circumstances since Nelson J.’s order. While I have identified a material change in Ms. McKenzie’s circumstances, this does not open the door to the relief being sought by Mr. Robertson, namely a rescission of his arrears beyond that already conceded by Ms. McKenzie.

117Even if I had found a change in Mr. Robertson’s financial circumstances, he has not demonstrated a present or a past willingness to support his children and Ms. McKenzie voluntarily. Most if not all of the minimal payments made to Ms. McKenzie in recent years have been through Family Responsibility Office diversions (garnishments) and not voluntary payments. Mr. Robertson has demonstrated that he is not without access to funds as he acknowledged that he has paid his various lawyers as much as $600,000. Mr. Robertson received an advance on commissions from his employer of approximately $40,000, none of which was made available to the Family Responsibility Office for garnishment and Mr. Robertson deliberately delayed filing his income tax returns so that the Family Responsibility Office could not garnish his refund. Mr. Robertson has not reimbursed Ms. McKenzie for payments she has made for Brianna’s education expenses or Reilley’s rep soccer expenses.

118There was no credible evidence to support the fact that Mr. Robertson suffers from health issues that might impact his ability to contribute to his support obligations.

119Much like Mr. Couto in DiFrancesco, Mr. Robertson did not present an open and clear picture of his current financial circumstances or his future capacity to contribute to the outstanding arrears.

120Mr. Robertson’s broad claims to eliminate his financial obligations to Ms. McKenzie also included a claim to rescind prior costs awards. While s. 17 of the Divorce Act provides the foundation to vary a party’s support obligations having regard to the applicable principles upon which an award of child or spousal support is based under that statute, it does not, in my view, provide an opening to rescind an award of costs.

121Both parties agreed that a set-off formula should be adopted for the retroactive child support adjustment. The re-calculation of child support to reflect the change in Ms. McKenzie’s income shall commence as of January 1, 2016 along with the termination of spousal support.

122In terms of the proportionate sharing of special and extraordinary expenses, Magda J.’s order stipulated that Ms. McKenzie’s proportionate share was 25% and Mr. Robertson’s 75%; this order was made at the suggestion of Ms. McKenzie as her actual proportionate share at that time was less. Based on my findings with respect to each party’s income, this proportionate sharing now properly reflects their respective income.

3. Should the Applicant be declared a vexatious litigant?

123Ms. McKenzie seeks to have Mr. Robertson declared a vexatious litigant.

124The court’s power to declare someone a vexatious litigant comes from s. 140(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 and the purpose of the section is “to codify the inherent jurisdiction of the Superior Court to control its own process and to prevent abuses of that process by authorizing the judicial restriction, in defined circumstances, of a litigant’s right to access the courts”: see Kallaba v. Bylykbashi, [2006] 23 R.F.L. (6th) 235, at para 30.

125In Re Lang Michener and Fabian (1987), 59 O.R. (2d) 353 (Ont. H.C.) the court outlined some of the indicia for a party to be declared a vexatious litigant. They are as follows:

(a) the bringing of one or more actions to determine an issue which has already been determined by a Court of competent jurisdiction constitutes a vexatious proceeding; (b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good or if no reasonable person can reasonably expect to obtain relief, the action is vexatious; (c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights; (d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings; (e) in determining whether proceedings are vexatious, the Court must look at the whole history of the matter and not just whether there was originally a good cause of action; (f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious; and (g) the respondent’s conduct and persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.

See also McKee v. McKee, 2018 ONSC 4948, at para. 26.

126The foregoing is not an exhaustive list nor is the applicant required to demonstrate that all are present: Howie, Sacks & Henry LLP v. Chen, 2015 ONSC 2501 at para. 30.

127The power to declare a party a vexatious litigant must be used sparingly: Howie, at para. 27.

128Mr. Robertson certainly meets some of the above noted criteria or indicia. He initiated an appeal that he later abandoned, and he has now brought two unsuccessful motions to change in which he has focussed his argument on the “errors” he believes were made by Magda J., rather than demonstrating that there has been a material change in his own circumstances. Much of his evidence and argument has been rolled over from the earlier proceedings. He has significant unpaid costs not to mention large arrears of spousal and child support.

129However, in other respects Mr. Robertson does not fit the criteria. While I have not found in his favour in this Motion to Change beyond what Ms. McKenzie essentially consented to, I would not characterize his claim as patently doomed to failure from the outset. This was also the assessment of Nicholson J. who dismissed Ms. McKenzie’s summary judgment motion with costs against her.

130While there is no love lost between him and Ms. McKenzie, I do not find that he has commenced these or other proceedings for some other improper purpose such as to harass Ms. McKenzie, although the fact that he has paid various lawyers almost as much as he owes in support might suggest otherwise.

131In my view, Mr. Robertson has pursued this course of action as he is unable to accept the outcome of the trial before Magda J. and he remains fixated on trying to persuade another judge to essentially set aside the order and fix things for him. This is not going to happen.

132During his closing submissions Mr. Ludmer gestured to the court’s crest behind the dais and exhorted the court to consider what the average Ontarian would think about Mr. Robertson’s “untenable circumstances”.

133I think many average people living in Ontario or elsewhere looking in on this case would query whether the system had fairly served Ms. McKenzie and the children.

134For many years, Ms. McKenzie has had to support the two children while in her care on a fraction of what she is entitled to receive pursuant to the existing order. While at the same time Mr. Robertson has been able to access and has prioritized paying as much as $600,000 to his various lawyers.

135Ms. McKenzie has been represented by counsel throughout and she has had to bear the up-front cost of three trials, an abandoned appeal, as well as numerous interim proceedings.

136Ms. McKenzie has tried to make reasonable compromises. Immediately prior to the commencement of the trial before Nelson J. and presumably in order to remove any impediment to it proceeding, the parties agreed to an order that Mr. Robertson would not seek to vary Magda J.’s retroactive support award at any time in the future. However, in this trial, Mr. Robertson reneged on this agreement and sought to do just that. Ms. McKenzie agreed to a retroactive termination of spousal support and an adjustment to child support the cumulative effective of which is to reduce Mr. Robertson’s support arrears by over $200,000.

137Mr. Robertson has not yet faced any real limitations on his day to day life despite being in breach of the court order. He has retained his driver’s license even though he failed to honour the terms of the refraining order. Mr. Robertson convinced the Family Responsibility Office that he needed his passport back (it had been suspended as part of the enforcement of arrears) in order to visit various carpet mills in the U.S. for his employer. One queries why an employer would go to the expense of sending an employee who is apparently generating so little business on business trips.

138While I decline to declare Mr. Robertson a vexatious litigant, there must be some criteria that he has to satisfy before he can initiate further proceedings. Mr. Robertson must first obtain leave by 14B motion before he is permitted to initiate any further Motion to Change. This is necessary in order to ensure that the procedure is fair to all parties and to ensure that the court’s resources are appropriately focused among other things: Rule 2 of the Family Law Rules, O. Reg. 114/99, as amended by O. Reg. 250/19.

139Mr. Robertson has essentially been trying to re-litigate the original trial to obtain a different result. At least 13 different judges have dealt with Mr. Robertson and Ms. McKenzie over the past decade that they have been in litigation. This has necessitated a re-telling of the story by both parties on far too many occasions. This too is inconsistent with the primary objective set out in r. 2 of the Family Law Rules. This case has occupied too much of the court’s limited resources relative to its complexity (or lack thereof) and importance. In order to streamline matters moving forward, to save expense and time and to ensure that the procedure is fair to both Mr. Robertson and Ms. McKenzie, I shall remain seized of any proceedings involving Mr. Robertson and the Family Responsibility Office as well as any motions for summary judgment and security for costs.

IV. Order

140Mr. Robertson’s obligation to pay spousal support pursuant to the order of Magda J. dated June 11, 2012 shall terminate effective January 1, 2016.

141Mr. Robertson’s child support obligations pursuant to the order of Magda J. dated June 11, 2012 shall be retroactively varied as follows:

(a) Commencing January 1, 2016, Mr. Robertson shall pay set-off child support for the two children of the marriage in the amount of $2,179 per month based on his imputed income of $284,000 and Ms. McKenzie’s actual income of $95,523. (b) Commencing January 1, 2017, Mr. Robertson shall pay set-off child support for the two children of the marriage in the amount of $2,248 per month based on his imputed income of $284,000 and Ms. McKenzie’s actual income of $97,165. (c) Commencing January 1, 2018, Mr. Robertson shall pay set-off child support for the two children of the marriage in the amount of $2,239 per month based on his imputed income of $284,000 and Ms. McKenzie’s actual income of $97,862. (d) Commencing January 1, 2019, Mr. Robertson shall pay set-off child support for the two children of the marriage in the amount of $2,220 per month based on his imputed income of $284,000 and Ms. McKenzie’s actual income of $99,528. (e) Commencing September 1, 2019, Mr. Robertson shall pay set-off child support for the two children of the marriage in the amount of $1,646 per month based on his imputed income of $284,000 and Ms. McKenzie’s actual income of $99,528 and with the child Brianna being treated as a “summer child” and the child support amount for her being prorated over twelve months.

142The costs of $20,335.53 payable by Ms. McKenzie pursuant to the order of Nicholson J. dated January 11, 2017 shall be set-off against any outstanding costs ordered by Magda J. on October 3, 2012 and/or Nelson J. on April 9, 2015 that remain unpaid to date.

143Mr. Robertson shall be required to seek leave by 14B motion on notice before bringing any further Motion to Change. As part of his motion for leave, he must provide the following:

(a) FRO statement confirming the status of his payment obligations and his compliance with any default orders; (b) proof that he has filed all of his income tax returns to date and has provided copies of the returns and Notices of Assessment to Ms. McKenzie; (c) details by way of sworn affidavit of the material change in circumstances that has occurred since the date of this order; (d) a sworn Financial Statement including documentary details of his income from all sources such as a year to date paystub and/or letter from his employer; (e) proof that he has paid all costs that are not being collected by the Family Responsibility Office as an incident of support.

144Ms. McKenzie shall be required to continue to deliver copies of her income tax returns and Notices of Assessment as part of her ongoing disclosure obligations in relation to child support. She is not required to produce a sworn Financial Statement or other disclosure to Mr. Robertson in relation to any request for leave unless otherwise ordered by the court.

145I shall remain seized of any proceedings involving the Family Responsibility Office, any summary judgment motions and any motions for security for costs.

146Ms. McKenzie shall deliver submissions with respect to costs not to exceed five pages excluding copies of offers to settle and any case references on or before June 26, 2020. Mr. Robertson shall deliver responding costs submissions not to exceed five pages excluding copies of any offers to settle and any case references on or before July 10, 2020. Ms. McKenzie shall deliver her reply cost submissions not to exceed three pages on or before July 20, 2020. Counsel are requested to provide hyperlinks to any cases. All costs submissions shall be e-mailed to my assistant Karen Hamilton at karen.hamilton@ontario.ca. Parties are not required to file a paper copy with the court.