Court File No.: FS-08-339461-0004 Date: 2020-06-10 Ontario Superior Court of Justice

Between: Mariette Matos, Applicant And: David Driesman, Respondent

Counsel: Michael J. Polisuk, for the Applicant David Driesman, in person

Heard: March 10, 2020

Reasons for Decision

Nishikawa J.

Overview

[1] The Respondent, David Driesman, and the Applicant, Mariette Matos, were married from May 10, 1997 to March 31, 2007. They have two children, Victoria, who is 20 years old, and Devin, who is 17 years old.

[2] Mr. Driesman brings a motion to change to reduce, on an interim basis, the child support and s. 7 expenses that he is required to pay to Ms. Matos. The original basis for the interim motion was Mr. Driesman’s loss of employment. In the meantime, Mr. Driesman obtained a new position at a lower salary and wishes to pursue the motion.

[3] The parties’ dispute has a long and contentious history. Both parties allege, among other things, that the other has failed to fulfill their disclosure obligations and have filed voluminous material on this motion. While the issue on this motion is narrow, some explanation of the procedural background is required.

Procedural Background

[4] In April 2010, the parties reached an agreement on the financial terms of their divorce. The final order of Mesbur J. dated April 12, 2010 (the “Final Order”) required that Mr. Driesman pay table child support of $1,600 per month based on deemed income of $120,000 per year. The parties also agreed that Mr. Driesman would contribute $12,000 per year (or $1,000 per month) toward the children’s private school tuition, Kumon and music lessons. The amount of $60,000 for the first five years was secured against the proceeds of the sale of the matrimonial home. Mr. Driesman was also required to pay 35 percent of any medical or dental expenses not covered by an insurance plan, as well as $1,000 per year toward the children’s summer day camp and therapy. Paragraph 3(g) of the Final Order stated that it was not variable before May 1, 2015, except for “a catastrophic and unforeseen change in the parties’ respective circumstances.” It further stated that “the Respondent shall continue to pay child support as provided herein until varied by agreement or Court Order after May 1, 2015.”

[5] In May 2010, custody and access arrangements were also resolved. Pursuant to the Order of Jarvis J. dated May 13, 2010 (the “Parenting Order”), Ms. Matos was granted sole custody of both children. The terms of a parenting plan agreed to by the parties was incorporated into the Parenting Order.

[6] In 2015, Mr. Driesman stopped paying the yearly amount for s. 7 expenses. The Family Responsibility Office (“FRO”) statement of arrears shows that as of February 1, 2020, he owed $19,093.12 in child support and s. 7 expenses.

[7] In September 2015, Ms. Matos brought a motion to change seeking continued contributions from Mr. Driesman toward s. 7 expenses. Mr. Driesman opposed the motion and sought, among other things, joint custody and a refund of child support and s. 7 expenses of approximately $66,000. Ms. Matos brought further motions for disclosure and responses to undertakings. The motion to change has yet to be heard, due to the circumstances further described below.

[8] Between November 2015 to June 2017, Mr. Driesman brought nine motions seeking various relief.

[9] On October 7, 2016, Harvison Young J. (as she then was) granted Ms. Matos’ motion for a temporary order requiring that Mr. Driesman continue to pay $1,000 per month in s. 7 expenses. Harvison Young J. dismissed Mr. Driesman’s motion for an assessment pursuant to s. 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12.

[10] On June 22, 2017, Paisley J. ordered that no further motions be brought by Mr. Driesman without leave and that he be required to pay all outstanding costs before applying for leave to bring any further motions.

[11] On September 22, 2017, Paisley J. struck Mr. Driesman’s response to Ms. Matos’ motion to change due to Mr. Driesman’s failure to comply with undertakings, in particular, for failing to provide proof of the source of deposits totaling $1.169 million. Paisley J.’s decision was upheld by the Court of Appeal: Matos v. Driesman, 2018 ONCA 660.

[12] Mr. Driesman then brought a Rule 14B motion for leave to bring a number of motions. In her endorsement dated May 29, 2019, Kristjanson J. granted Mr. Driesman leave to case conference a motion to vary, on an interim basis, table child support and contributions to s. 7 expenses based on his loss of employment, effective March 29, 2019, on the condition that he comply with a number of terms relating to his financial disclosure. The balance of the motion for leave was dismissed without prejudice to Mr. Driesman bringing the motion for leave back upon his providing: (i) proof that all outstanding costs orders have been paid; and (ii) an updated FRO statement of arrears or statement of payments.

[13] At a case conference held on July 31, 2019, McWatt J. ordered both parties to disclose a lengthy list of financial and other documents.

[14] At a case conference held on October 18, 2019, Shore J. granted leave to Mr. Driesman to bring his interim motion to change the existing support order, as of March 2019, provided that he pay at least $13,000 in outstanding costs and comply with the following two additional terms: (i) that he provide an authorization permitting Ms. Matos’ counsel speak to two other companies, GTI Manufacturing (“GTI”), Experian Automotive (“Experian”), and Fivestar Mfg Inc. (“Fivestar”), with respect to his involvement with them; and (ii) that he provide an affidavit regarding sales made, commissions earned and expenses reimbursed through his employment. Shore J. further ordered compliance with previous orders relating to disclosure, although leave was not conditional on compliance. Shore J. also required that Ms. Matos provide, within 30 days, a list of outstanding disclosure from prior court orders and provide breakdown of how certain RESP funds were used.

[15] At a settlement conference before Goodman J. on January 27, 2020, the parties agreed that at the hearing of this motion, Mr. Driesman would advise if he was seeking leave to bring any other motions, in addition to the motion to change. If so, a date and timetable would be set for a motion for leave to bring those motions. Ms. Matos agreed to refrain from proceeding with her motion to change (commenced in 2015) provided that Mr. Driesman proceeds in accordance with the process set out for the leave motion.

[16] Mr. Driesman provided the authorizations and further affidavit and has paid $13,000 in costs, as required by Shore J.

Factual Background

[17] Mr. Driesman is currently employed as a sales agent with Ningbo Sinyuan ZM Technology Co. Ltd. (“Ningbo”), a company located in China. Mr. Driesman signed a one-year contract beginning July 29, 2019 at a salary of $4,000 (USD) per month plus commission of 1.5 to 2 percent of sales, depending on the item. Mr. Driesman is not employed and has no contract with the other three entities for which Ms. Matos sought information. GTI provided a letter stating that Mr. Driesman may solicit business for them to earn a commission, which would be determined, but has not made any sales for GTI.

[18] Ms. Matos is a lawyer currently employed with the government. Her current income is $212,996. Ms. Matos’ income has fluctuated over the years as a result of job changes. From 2007 to 2019, her income ranged from $79,964 to $238,929.

[19] The parties’ daughter, Victoria, is in her third year of medical school at Rochester University. Victoria was one of ten students admitted to the program directly from high school. The tuition is approximately $60,000 CAD per year. Victoria has a scholarship and financial aid of $26,486 (USD). It is not clear from the documents whether she receives this every year. Ms. Matos has advised that $44,825.20 in a RESP that had been established for the children was used to fund Victoria’s tuition and was closed in December 2017. The amount of $10,182.70 held in a trust account for Victoria remains in the account.

[20] The parties’ son, Devin currently attends Toronto Prep School. The tuition is $27,250 CAD per year. In September 2019, Devin began attending a public school. However, after being assaulted on the third day of school, he did not want to return to the school. Mr. Driesman disputes that the assault took place. Devin also participates in competitive soccer, which costs approximately $15,000 per year.

The Parties’ Positions

The Respondent’s Position

[21] Mr. Driesman submits that he is unable to continue paying child support and s. 7 expenses at the amounts in the Final Order because his income has been reduced to $62,500 for 2019. [1] In his Amended Notice of Motion, dated February 7, 2019, Mr. Driesman seeks an Order granting the following relief:

• reducing child support to $476.50 per month for Devin;
• reducing child support to $476.50 per month for Victoria, to be paid only when she resides with the Applicant;
• reducing s. 7 expenses to a proportionate share of Victoria’s post-secondary education for four years at an equivalent Canadian post-secondary institution;
• directing a refund of an overpayment of $22,145 in child support and s. 7 expenses for the period from September 2017 to March 2019 due to the Applicant’s use of funds from a RESP and trust fund;
• directing that the Applicant refund an overpayment of $2,909 in child support paid through FRO from April 2019 to October 2019, based on his income during that time period;
• terminating s. 7 expenses retroactively as of April 1, 2019;
• terminating payments for camp and therapy retroactively to April 1, 2019; and
• transferring the balance of the proceeds of the matrimonial home trust fund to a RESP or equivalent for Devin’s future education, to be managed solely by the Respondent.

[22] In his affidavit, Mr. Driesman raises the following additional issues:

• Ms. Matos’ failure to consult him about Victoria’s post-secondary education at an institution outside of Canada;
• Ms. Matos’ failure to consult him about withdrawing Devin from public high school;
• Not being consulted before funds were withdrawn from the children’s RESP;
• Not being provided with statements regarding the RESP account; and
• Failures to disclose by Ms. Matos.

The Applicant’s Position

[23] Ms. Matos seeks to dismiss or stay Mr. Driesman’s motion to change. Ms. Matos alleges that Mr. Driesman has undisclosed sources of income and that he has failed to provide full disclosure of his income and assets. Ms. Matos submits that as the matters raise credibility issues, a trial is necessary.

Issues

[24] The only issue on this motion is that for which leave has been granted pursuant to the order of Kristjanson J., that is, whether there has been a material change in the Respondent’s income such that table child support and s. 7 expenses ought to be varied on an interim basis after March 29, 2019. As a result, I will not address issues raised by Mr. Driesman, such as amounts owing for payments made before March 29, 2019 or decisions about the children’s education.

Analysis

The Applicable Legal Principles

[25] In their motion materials and at the hearing, both parties’ arguments were almost entirely devoted to the other party’s alleged failures to disclose and surrounding factual allegations. Neither party provided any legal authorities on the substantive legal issue on the motion. While a party’s failure to disclose financial information is relevant to the motion, the motion was significantly obscured by each party’s effort to paint the other in a more negative light.

[26] Subsection 17(1)(a) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp), permits a court to make an order “varying, rescinding or suspending, prospectively or retroactively… a support order or any provision thereof on application by either or both former spouses[.]” In respect of child support, s. 17(4) of the Divorce Act states as follows:

Before the court makes a variation order in respect of 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.

[27] Subsection 14(a) of the Federal Child Support Guidelines, SOR/97-175, states that for the purposes of s. 17(4) of the Divorce Act, a change of circumstances giving rise to the making of a variation order in respect of a child support order includes, “in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof[.]”

[28] However, not every change gives rise to a variation. A material change is a change 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 v. Willick, [1994] 3 S.C.R. 670 (S.C.C.), at para. 20. Further, the change must have some degree of continuity, and not merely be a temporary set of circumstances: L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775, at paras. 32 and 35.

[29] Any reduction in support requires a true material change based on a genuine effort by the Respondent to work at full capacity: Pinto v. Ponciano, 2016 ONSC 6466, 87 R.F.L. (7th) 130, at para. 9.

[30] It should also be noted that since what Mr. Driesman seeks is an interim variation of a final order, the need should be urgent or pressing: Walsh v. Walsh, [2004] O.J. No. 254 (C.A.), at para. 17.

[31] Once a material change of circumstances is demonstrated, the court will consider what variation should be made: Willick v. Willick, at para. 27.

Is There a Material Change in Circumstances?

[32] Based on the evidentiary record on this motion, Mr. Driesman has not met his onus of proving on a balance of probabilities a material change to his income from the date that the Final Order was made in April 2010. As noted above, the Final Order required that Mr. Driesman pay $1,600 per month in child support (currently adjusted to $1,686) based on his income of $120,000 yearly, as agreed to between the parties.

[33] First, Mr. Driesman was granted leave to bring an interim motion to change on the basis of his loss of employment on March 29, 2019. However, by July 2019, Mr. Driesman had obtained a new position. While that position is at a lower salary of $4,000 (USD) per month plus commissions, the change is not as urgent or pressing as it was when leave was first granted.

[34] Second, in considering Mr. Driesman’s income for 2019, it is necessary to include all amounts earned, and not just those amounts earned from his new position. Mr. Driesman earned $42,641 from his previous employment from January to March 2019, as indicated by his record of employment showing his insurable earnings. After that, Mr. Driesman received employment insurance until he obtained his new position. He indicated that his yearly income from employment insurance would be $29,100. As such, the amount for the five-month period during which he was unemployed would be $9,700. He received $4,000 (USD) per month ($5,368 CAD) for four months from his new position. This would bring his income for 2019 to $79,181, not including any commissions earned, as opposed to $62,500 as disclosed by Mr. Driesman.

[35] In his affidavit sworn October 31, 2019 regarding his commissions and expenses (as required by Shore J.), Mr. Driesman deposed that as of October 2019, he earned only $105 (USD) in commissions from his employment with Ningbo. The attached document, which is undated and partially in Chinese, appears to indicate that he has sold one piece of equipment. In his affidavit sworn February 7, 2020, Mr. Driesman stated that he expected an additional $564 (CAD) in commission “in the coming months[.]”

[36] Mr. Driesman also provided the authorizations allowing GTI, Experian and Fivestar to provide information about his commercial relationship with them. All three responded that he has not earned any income from them.

[37] Ms. Matos points to an invoice for the sale of over 8,000 kg in automobile parts by Mr. Driesman to argue that he has not fully disclosed commissions earned by him. The invoice does not specifically state that Mr. Driesman sold the parts and I am unable to draw any conclusions from the document alone.

[38] Since 2015, Mr. Driesman earned the following income, as indicated by his Notices of Assessment:

• 2015 - $52,236
• 2016 - $122,851
• 2017 - $118,572
• 2018 - $124,834

[39] The Notices of Assessment show that Mr. Driesman’s income from 2015 to 2018 was consistent with, and sometimes greater than, the amount agreed to between the parties for the Final Order. While Mr. Driesman earned substantially less in 2015, the parties’ agreement extended to May 2015. Moreover, Mr. Driesman’s income recovered in 2016.

[40] When the terms of the Final Order were agreed to in April 2010, Mr. Driesman agreed to child support based on an income significantly higher than the amounts reported on his income tax returns. The income reported on his income tax returns from 2007 to 2009 ranged from $47,517 to $83,397. At the time, Mr. Driesman agreed to a higher income because of the difficulty in determining his income solely from his income tax returns.

[41] Mr. Driesman’s current income is thus in line with the income he was earning when he agreed to support based on an income of $120,000 per year. Even if his income for 2019 was lower than in previous years, this is not a change characterized by a degree of consistency but, rather, is more consistent with a temporary change in circumstances. Mr. Driesman was not out of work for an extended period of time.

[42] Based on the evidence on this motion, and for the reasons given further below, it is difficult to arrive at an accurate picture of Mr. Driesman’s income. However, even accepting the Respondent’s evidence in respect of his current income, there is no urgent or pressing need for interim relief based on a material change in circumstances.

[43] Moreover, Mr. Driesman’s income in 2019 is not significantly less than his disclosed income when he agreed to an annual income of $120,000 per year for the purposes of determining child support. Based on the material before me, and given the higher threshold for relief on an interim basis, I am not satisfied that Mr. Driesman has met his burden of demonstrating a material change in circumstances justifying an interim reduction of child support.

The Respondent’s Failure to Disclose Financial Information

[44] In addition, and in the event that the above finding is incorrect, I find that Mr. Driesman’s failure to provide full disclosure does not allow this court to properly determine his income at this time. As such, he has not met his onus of proving a material change in circumstances.

[45] Parties to family law proceedings are required to make full and frank disclosure about their finances so that the proper assessments and orders can be made: see e.g. Family Law Rules, O. Reg. 114/99, r. 13(6) and (17). This lengthy proceeding has been hampered at every stage by Mr. Driesman’s failure to disclose, as this court has found numerous times over the years.

[46] The order of Kristjanson J., which granted the Respondent leave to case conference a motion to change, required disclosure of a range of documents. Shore J.’s case conference endorsement required that Ms. Matos produce a list of all outstanding disclosure within 30 days of the case conference. While Mr. Driesman complains that Ms. Matos was late in providing the list, this does not relieve him of his disclosure obligations.

[47] Based on the Applicant’s Outstanding Disclosure List dated December 23, 2019, and my review of the record on this motion, the following details some of the outstanding disclosure that is relevant to the issues on this motion. As this is not a motion for disclosure, and not all documents are relevant to this motion, I will not detail at length all the documents that remain outstanding. Moreover, it would not be possible for me to determine conclusively what remains outstanding if documents were produced but are not in evidence.

[48] The order of Kristjanson J. which granted leave to case conference a motion to change required that Mr. Driesman provide a properly sworn affidavit which included, among other things:

• His 2018 income tax return, with schedules, and 2018 Notice of Assessment when received;
• All bank account, line of credit, and investment account statements from January 1, 2019 to date; and
• “A properly sworn Form 13 financial statement, together with documents to support January 1, 2019 and June 1, 2019 values for all mortgages, bank accounts, savings plans, RRSPs, investment accounts, and all debt claimed on the financial statement (for example, statements from each account). For the claimed debt including “Bank of Mum, “David Matos” and “Brian Ludmer”, an affidavit setting out the terms of the debt, when the loan was incurred, proof of the receipt of the loan (for example, the account showing deposit), proof of repayment of the loan (e.g., cancelled cheques or e-transfers).”

Tax Return and Notice of Assessment

[49] Mr. Driesman has provided his 2018 Notice of Assessment and income tax return, but no schedules.

Statements for Bank Accounts, Investment Accounts, Mortgages, Lines of Credit and Credit Cards

[50] Mr. Driesman has some supporting documentation for his Form 13 Financial Statement, such as bank account and investment account statements and statements for his lines of credit and credit cards. As further detailed below, Mr. Driesman has provided a statement or printout identifying his accounts with various institutions, generally as of January or February 2020, but has not provided statements for the period from January 2019 onward, as required by the order of Kristjanson J. The disclosure is therefore incomplete.

[51] The statement from TD Canada Trust showing all of his accounts lists a four investment accounts that do not appear on Mr. Driesman’s financial statement.

[52] Mr. Driesman has provided printouts from TD Canada Trust for accounts for CE Williams and “the Better Way” which show “no data.” Mr. Driesman claims that any companies he previously operated are no longer operational or have been dissolved. However, no documents confirming dissolution have been provided.

[53] While Ms. Matos seeks statements for bank accounts at financial institutions other than those provided by Mr. Driesman, he maintains that he does not have or no longer has accounts at those institutions. Mr. Driesman states that he is willing to sign an authorization to allow Ms. Matos to inquire with the banks and determine whether he has additional accounts there. However, this was not done before the hearing of the motion.

[54] Mr. Driesman has provided a single statement for the following credit cards: a TD Visa credit card ending in 7775, an RBC Mastercard ending in 4227, a Canadian Tire Mastercard ending in 0986, and a PC Financial Mastercard ending in 7950. Disclosure of the credit card statements is therefore incomplete.

Debts to “Bank of Mum”, David Matos and Brian Ludmer

[55] In respect of the debts for which Mr. Driesman was to disclose further details, he has provided some, but not all, of the required information. Mr. Driesman has not provided an affidavit setting out the terms of the debts, when the loans were incurred, and proof of the receipt of the loans (for example, the account showing deposit).

[56] Mr. Driesman’s financial statement shows a loan from “Bank of Mum” of $92,000. Mr. Driesman received transfers of $15,000 and $12,000 from his mother, Doreen Driesman, in 2019 and $15,000 and $10,000 in 2018. In 2016, Mr. Driesman received $50,000 from his mother. Mr. Driesman claims that his mother withdrew these amounts from a line of credit and he pays the interest.

[57] Ms. Matos alleges that since the order of Hood J. required him to disclose his bank account statements, which showed deposits of $1.169 million (as further detailed below), Mr. Driesman now receives money through his mother’s bank account and then transfers it to himself. Ms. Matos deposes that Doreen Driesman is 90 years old, receives old age security and is of little financial means.

[58] Contrary to Kristjanson J.’s order, Mr. Driesman has not provided an affidavit setting out the terms of the debt or when the loan was incurred. Mr. Driesman has provided cancelled cheques showing the payments from Doreen Driesman to him, as well as an email from her confirming that she loaned him $90,000 from her line of credit. He does not appear to have repaid any amount of the debt. In an earlier financial statement, Mr. Driesman did not indicate that he was paying interest on the loan. Mr. Driesman has produced one statement showing an interest payment made in February 2019 on a line of credit in Doreen Driesman’s name.

[59] Regarding the $44,102.63 debt to David Matos, Mr. Driesman has not provided the terms of the debt, when it was incurred, proof of receipt of the loan, and proof of any repayment. Mr. Driesman claims that he is not required to make any payments on the loan.

[60] Similarly, in respect of the debt owed to his former counsel, Brian Ludmer, Mr. Driesman’s February 2020 financial statement lists the loan as “Brian Ludmer (10,956.35) + GST from Gera (11,025.78).” Mr. Driesman has not provided any details about the terms, when it was incurred or proof of receipt of payment or repayment.

Other Alleged Sources of Income

[61] Ms. Matos maintains that Mr. Driesman is engaged in the business of renovating and rebuilding houses at a profit and that this income is undisclosed on his tax returns. Ms. Matos found an online advertisement for Mr. Driesman’s services as a design build project manager, which stated that he has designed and built four homes.

[62] Mr. Driesman insists that he builds homes as a hobby to help friends and that he earns no income from this activity. He asserts that he placed the online ad when he was unemployed but received no business from it. Mr. Driesman further submits that three of the four houses referred to in the advertisement were co-owned with Ms. Matos and the fourth is the house owned by David Matos.

[63] Mr. Driesman has been less than forthcoming about his income in the past. At a motion for disclosure brought by Ms. Matos, Hood J. ordered that Mr. Driesman produce documents relating to the construction of a house at 278 Betty Ann Drive (the “Betty Ann Property”). The bank statements produced as a result of Hood J.’s order of June 2016 showed $1.169 million in deposits into Mr. Driesman’s bank accounts. [2] Mr. Driesman also entered into contracts and incurred significant expenses in connection with the Betty Ann Property. During the same time period, Mr. Driesman was declaring between $21,000 to $46,000 annual income on his tax returns and sought relief from his child support obligations.

[64] In his affidavit sworn February 7, 2020, Mr. Driesman states: “I do not need to disclose my business activities and contact information to Ms. Matos. It is not relevant to these proceedings.” Where Mr. Driesman seeks to vary his child support obligations, his income from his business activities is very relevant to these proceedings.

[65] Moreover, according to his February 2020 financial statement, Mr. Driesman’s yearly expenses total $125,494, which is significantly in excess of his reported income.

[66] Pursuant to s. 19(1) of the Child Support Guidelines, O. Reg. 391/97, the court may impute income to a parent or spouse as it considers appropriate in the circumstances, including when the parent is intentionally under-employed or has failed to provide information when under a legal obligation to do so, and when it appears that income has been diverted which would affect the level of child support to be determined under the Guidelines: Child Support Guidelines, s. 19(1)(a), (d) and (f).

[67] Moreover, as noted above, a reduction in support based on an alleged material change must be based on a genuine effort to work at full capacity. If Mr. Driesman is not engaged in the business of rebuilding houses at a profit, he could be, rather than as a hobby or gratuitously for friends. Any imputation of income based on intentional underemployment or failure to disclose, however, will have to be determined at trial.

[68] Based on his failure to disclose relevant financial information, it remains likely that Mr. Driesman has income in excess of the amounts reported on his tax returns. I am not satisfied, on an interim basis, that he has met his burden of establishing a material change in circumstances or an urgent or pressing need for relief.

Conclusion

[69] For the foregoing reasons, the Respondent’s motion to vary child support and s. 7 expenses on an interim basis is dismissed.

[70] However, the Final Order ought to be varied in one respect. Since Victoria does not reside with Ms. Matos while attending Rochester University, Mr. Driesman should only be required to pay child support for Victoria for four months a year, when she returns home, as opposed to 12 months. The Final Order shall be varied accordingly.

[71] The order in these reasons is effective from the date of release of the reasons and is enforceable without the need for entry and filing of a formal order.

Costs

[72] Given the court’s limited resources at the present time due to the ongoing pandemic, the parties are strongly encouraged to agree on costs: see Booth v. Bilek, 2020 ONSC 2523, at para. 9. If the parties are unable to agree, the Applicant shall serve and file her costs submissions within 14 days of this decision. The Respondent’s responding costs submissions shall be served and filed within 14 days of receipt of the Applicant’s cost submissions. No cost submissions shall exceed 4 double-spaced pages, not including a costs outline. Costs submissions are to be submitted through the Family Scheduling Office. If no costs submissions are received within 28 days, the parties will be deemed to have resolved costs.

Next Procedural Steps

[73] At the conclusion of the hearing, Mr. Driesman advised that he wishes to seek leave to bring other motions. Due to the volume of material and lack of clarity in the record, it is not clear what motions remain and whether they are still pertinent. In addition, Ms. Matos’ motion has been outstanding since 2015. It strikes me that the motions to change should proceed together, with related motions, if possible.

[74] Under the circumstances, where hearing dates before the court are limited, rather than to set a timetable and further hearing date, this matter should proceed by case conference where the parties will be required to clarify their positions and ensure that disclosure is completed so that any motions that proceed are on a complete record.

[75] Ten days before the case conference, both parties shall exchange proposed timetables for disclosure and the remaining motions. In addition, they shall exchange updated, comprehensive lists of the other party’s outstanding disclosure, without argument. Both parties shall verify all documents that have been disclosed by the other party before producing their list. The parties’ voluminous and repetitive material has impeded rather than assisted this court. They shall exchange case conference briefs of no longer than five pages limited to procedural matters.

[76] In the event that Mr. Driesman intends to proceed with a motion for leave, consistent with previous orders of this court, he shall first pay all outstanding cost orders.

Nishikawa J. Released: June 10, 2020

[1] Mr. Driesman initially sought to reduce child support to $466 per month based on his annual income of $29,100 from employment insurance, starting May 1, 2019. This was later changed to $953 per month based on income of $62,520, starting on Aug. 1, 2019.

[2] The parties have differing views as to whether Mr. Driesman has fully substantiated the deposits, as required by previous court orders. Mr. Driesman claims that he has provided documents supporting all but a couple of the deposits to the Applicant and that she has failed to cross-reference them. The Applicant maintains that the supporting documents have not been received. In his affidavits, Mr. Driesman cross-references earlier financial statements, case conference briefs or correspondence with the Applicant’s counsel. However, many of the documents referred to are not attached to affidavits on this motion and do not form part of the record before me. As a result, I make no finding as to whether the disclosure relating to the deposits is complete.