Court File and Parties
COURT FILE NO.: FC-17-2567 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Wayne Alfred Fluet, Applicant AND: Tracy Ann Arbarbanel, Respondent
BEFORE: Master Kaufman
COUNSEL: Stephen Pender, for the Applicant Ron Paritsky, for the Respondent
HEARD: In writing
Endorsement
Overview
1AS A RESULT OF COVID-19 the regular operations of the Superior Court of Justice operations at this time, as set out in the Notice to the Profession dated March 15, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/.
2The Notice of the Chief Justice provides that “urgent and emergency” matters shall continue to be heard by the Superior Court of Justice during the suspension of operations due to COVID-19, and that urgency is “as determined by the presiding justice.” The Notice specifies that such matters may include:
a. requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home); b. urgent issues that must be determined relating to the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child; c. dire issues regarding the parties’ financial circumstances including for example the need for a non-depletion order; d. in a child protection case, all urgent or statutorily mandated events including the initial hearing after a child has been brought to a place of safety, and any other urgent motions or hearings.
3This matter was referred to me for a determination of urgency.
Background and Positions of the Parties
4The Respondent’s proposed motion seeks only two remedies. First, that child support payments which have been suspended since January 2020 resume retroactively and second, an Order prohibiting the Applicant from drawing on the parties’ line of credit.
5The parties were married for 21 years and they have four children together, who primarily reside with the Respondent in the former matrimonial home. The parties separated around October 1, 2016.
6The Respondent says that she cannot pay the mortgage and keep a roof over the children’s head without child support. She is self employed as a psychologist and had revenues of approximately $106,000 in 2019. The Applicant has stopped paying child support in January 2020, but he was paying between $1606 and $1846 per month in 2019. Moreover, the Applicant is allegedly not contributing to section 7 expenses.
7The Respondent says that she does not qualify for temporary Covid mortgage relief because the mortgage is tied to the line of credit and the Applicant has drawn between $20,000 and $25,000 from the line of credit post separation. The Respondent says she may qualify for mortgage relief if she brought the line of credit down and the Applicant did not have access to it.
8The Applicant responds that the Canada Revenue Agency is taking collection steps on a $16,693.36 tax debt he owed from the date of separation. His wages are being garnished at a rate of $715 on a bi-weekly basis although the garnishment has been temporarily suspended because of the COVID emergency.
9The Applicant is willing to agree to an Order for child support in the amount of $1,100 per month commencing immediately and to stop using the joint line of credit. He claims that he has been requesting a mediation since March 3, 2020 and the Respondent has refused his request until all outstanding arrears are paid. The Applicant also says that the Respondent’s has $7,9262.87 in her chequing account although he does not state the basis for this assertion.
Analysis
10This preliminary determination of urgency is an exercise of judicial discretion. On the facts before me, I determine that the matter is not urgent. I make this determination because:
a. The Applicant is consenting to an Order for child support commencing immediately and agrees not to access the parties’ joint line of credit, which largely addresses the remedies requested in the motion; b. There is insufficient evidence before me that, with these $1,100 per month child support payments, the Respondent cannot afford to pay the mortgage; She bears the onus of establishing dire financial circumstances; c. The financial statement the Respondent submitted sworn April 23, 2020 contains expenses such as babysitting and daycare costs (the parties’ youngest child is 14 years old) and many of the expenses listed are likely not being incurred during the COVID emergency (such as vacation, restaurants, summer camps, children’s activities).
11My decision that the motion isn't urgent does not mean that the issues raised aren’t important. It is only a reflection of the need to prioritize which issues the Court currently has the resources to deal with. It appears that the Applicant withheld child support payments to force the Respondent into a mediation. This application was commenced over three years ago and he would like it resolved. The Respondent won’t agree to a mediation until the Applicant is current with his child support and section 7 obligations. During the COVID emergency, parties should heed the Chief Justice’s call to cooperate and engage in every effort to resolve matters, without preconditions.
Order
12The Court Orders as follows:
a. Commencing May 1, 2020, the Applicant shall pay the Respondent child support at a rate of $1,100 per month, on an interim and without prejudice basis; and b. The Applicant shall not draw on the parties’ line of credit until the parties agree otherwise or further Court order.
13Notwithstanding Rule 25 of the Family Law Rules, this endorsement is effective from the date it was made and is enforceable as an order of the court without the need for an order to be prepared or approved by the parties and then issued by the court. No formal order is necessary unless an appeal or a motion for leave is brought, or alternatively unless one is necessary for enforcement by a third party. A party who wishes to prepare a formal order for approval and issuance may do so and submit a draft to my attention.
Master Kaufman
Date: April 29, 2020