ORILLIA COURT FILE NO.: FC-18-155-00

DATE: 20200910

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Barbara Joan Ryckman, Applicant

AND:

Leslie Lyle Camick, Respondent

BEFORE: McDermot J.

COUNSEL: Applicant Self Represented

Respondent Self Represented

Matthew Ng for the Director, Family Responsibility Office and as agent for Daniela Bertossi, counsel for the Ministry of Children, Community and Social Services

HEARD: August 20, 2020

ENDORSEMENT

[1] Mr. Camick has dug himself into a hole. He owes substantial arrears of support under a final order made July 24, 2000, wherein he was ordered to pay child support of $888 per month. That order went into arrears and the Respondent owed, at one point in time, more than $260,000 under the order.

[2] In 2018, Mr. Camick began to dig himself out of his hole and began a Motion to Change. On January 30, 2019, he agreed that he owed arrears of child support of $24,481.33 to the Ministry of Children, Community and Social Services and $50,700 to the Applicant, Barbara Ryckman. Child support was terminated in the consent order as the children had aged out, but Mr. Camick agreed to pay $500 per month towards the arrears.

[3] These are not the only arrears that Respondent owes. He also owes arrears under an order made for child support dated April 7, 1995 in favour of Annette Margaret Camick (File no. FC 19-198). In his Motion to Change in that matter, Mr. Camick says that he owes arrears of $34,000 to the recipient, and another $74,000 to the Ministry. In that matter, he seeks to reduce arrears to nothing and says in his Motion to Change, “Can we end this now? Without money?”

[4] In respect of this matter, Mr. Camick brings another motion to change the payment on arrears under the consent order arrived at on January 30, 2019. He says that he has no income because he now has been diagnosed with prostrate cancer, and will have to undergo surgery. He says that he will have permanent incontinence. He is now of retirement age, but he also lost his business income renovating houses because of COVID and no longer has income other than CERB. He uses much of the same wording in this Motion to Change as in file no. 19-198: he also seeks to end this “without money”.

[5] In this motion, Mr. Camick seeks a stay of enforcement by the Director of the Family Responsibility Office. He also seeks the removal of the letter of denial filed with the Canadian Department of Justice which restricts the issuance of government documents including his passport. He finally seeks the removal of credit reporting by the Director. This was essentially an argument between the Director and Mr. Camick, although Ms. Ryckman attended in person to express her opposition to the order requested by Mr. Camick.

[6] It is to be noted that Mr. Camick scheduled a motion on January 8, 2020 requesting similar relief on his claim against Annette Camick in file no. 19-198-00. Wood J. dismissed the motion, determining that “the Court lacks jurisdiction to re-instate the passport or to prevent the reporting to the credit bureau.” He also stated that “there was no reason to deny enforcement at this time pending the outcome of the payors’ motion to change.”

[7] At present, that is not the case on this file. When scheduling this motion, Healey J. determined on July 7, 2020 that a without prejudice stay would issue pending argument of this motion.

[8] The director has argued the following:

a. The moving party, Mr. Camick, is prevented from obtaining an order respecting the filing of the letter of denial and credit reporting by the doctrine of res judicata based on the decision of Wood J. made on January 8, 2020;

b. If not, there is no jurisdiction for the court to make an order that the Director cease those enforcement options;

c. There is no basis for a stay of enforcement because the Respondent has not made a prima facie case for a change in the January 20, 2019 consent order.

Res Judicata

[9] This issue arises out of the decision of Wood J. to dismiss Mr. Camick’s claim for similar relief in File no. 19-198-00. As noted above, Wood J. determined that the court did not have jurisdiction to reinstate Mr. Camick’s passport (or other federal licences presumably) or to prevent the director’s reporting of arrears to the credit bureau.

[10] It is to be noted that although the nominal parties were different (that motion was brought in a proceeding between Mr. Camick and Annette Camick; this claim involves a different support recipient, Ms. Ryckman), the issues were the same insofar as Mr. Camick was arguing an inability to pay support, and that it was unjust for the Director to be taking the actions that it did in requesting a suspension of federal licenses and reporting the arrears to the credit bureau.

[11] There are two different grounds for relief under the doctrine of res judicata. Firstly, if an issue has been decided on a final basis involving the same cause of action and the same parties, it cannot be re-argued again under the doctrine of cause of action estoppel.

[12] That is not the case here, as the issue was resolved in a different proceeding although the argument was between the Director and Mr. Camick. Under that circumstances, the only doctrine of res judicata applicable is that of issue estoppel, described in in Toronto (City) v. CUPE, Local 79, 2003 SCC 63 at para 23:

Issue estoppel is a branch of res judicata (the other branch being cause of action estoppel), which precludes the relitigation of issues previously decided in court in another proceeding. For issue estoppel to be successfully invoked, three preconditions must be met: (1) the issue must be the same as the one decided in the prior decision; (2) the prior judicial decision must have been final; and (3) the parties to both proceedings must be the same, or their privies (Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, 2001 SCC 44, at para. 25, per Binnie J.).

[13] In the present case, the issues were similar (although the facts behind the motion were not because COVID had not occurred and Mr. Camick not diagnosed with prostate cancer in early January, 2020) and the Wood J. order was final. However, the nominal parties were different as the support recipients were different in each proceeding. That being said, the issue being argued was between the Director and Mr. Camick and the Director made the same jurisdictional arguments in file no. 19-198-00 in January 2020 as it makes in the present case.

[14] The law in Canada has generally required “mutuality of the parties” as set out in CUPE. There is, however, authority for the suggestion that final determinations involving different parties but the same issues should be dismissed by way of issue estoppel. In the United States, case law has developed which states that mutuality of parties is not necessary. In Canada, there only a few cases in which this has been discussed.

[15] In Holt v. Ashfield, [1986 N.B.J. No. 523 (Q.B.), the court considered a claim to a property that the Plaintiff said was contrary to an agreement between her and her mother. The issue had originally been litigated between herself and the original transferee of the property and the Plaintiff’s claim was dismissed. The Plaintiff then sought to relitigate the issue against a subsequent transferee of the property who the Plaintiff said had notice of the original agreement under which she had previously claimed an interest in the property.

[16] The subsequent claim was dismissed based upon res judicata. At para. 20, Jones J. stated:

These matters have been before courts in Canada in recent years. There is some divergence in rationale as between issue estoppel and abuse of process but the courts have found that in circumstances where an issue has been fully canvassed in one litigation that a party against whom an issue has been determined in the initial litigation should not be allowed to relitigate the issue simply because there are other parties involved in subsequent litigation. Nigro v. Agnew Surpass Shoe Stores Ltd. (1977), 1977 3406 (ON SC), 82 D.L.R. (3d) 302; Bank of Montreal v. Crosson (1979), 1979 1833 (ON SC), 96 D.L.R. (3d) 765; Rosenbaum v. Law Society of Manitoba (1983), 1983 2972 (MB KB), 5 W.W.R. 752; Demeter v. British Pacific Life Insurance Company (1983), 1983 1838 (ON SC), 150 D.L.R. (3d) 249.

[17] A similar rationale would appear to apply to the issues between Mr. Camick and the Director argued in this matter. On January 8, 2020, the Director argued jurisdiction in support of a dismissal of a motion by Mr. Camick to set aside the suspension of federal licenses and credit reporting by the Director under the provisions of the Family Responsibility and Support Arrears Enforcement Act, 1996[^1] (FRSAEA) and the provisions of the Federal Family Orders and Agreements Enforcement Assistance Act[^2] (FOAEA). Although the parties to the different Motions to Change were different, they were not the parties joining issue concerning the jurisdictional issues. Those parties were the Director on one hand, and the support payor on the other.

[18] That only makes sense. Absent a withdrawal from enforcement, only the Director can enforce support orders and the payor in this matter was making the same request concerning the enforcement of arrears in two different proceedings. It would be undesirable, and perhaps an abuse of process to have inconsistent findings concerning the same support payor; why should one support creditor have an advantage over a second support payor concerning Mr. Camick? The issues cited by him concerning enforcement are the same and the wording in the Change Information Form for both motions to change are similar.

[19] Therefore, although there is an issue of mutuality of parties, it appears that the parties to this particular issue and the facts and law surrounding the jurisdictional issues are the same. Mr. Camick’s claim regarding the federal licences and the credit reporting are subject to the doctrine of issue estoppel and in the normal course could not be relitigated in this matter.

[20] However, I am concerned about the state of the record. I have none of the material that was placed before Justice Wood. His reasons were brief and recite none of the facts and law that he was relying on. As well, Mr. Camick says that he arrived in court late on January 8, 2020[^3] after Wood J. had already made his decision. He says that he was able to make brief submissions which made no difference to the decision. It is difficult to determine whether the matter was determined in default (in which case it was not litigated on its merits, necessary for a res judicata determination) or the basis upon which the decision was made. I am not willing to make a determination of issue estoppel on such a limited record and considering the fact that Mr. Camick says that he was only given a very brief opportunity to argue the issue.

[21] Moreover, it is unclear what Motion to Change was before the court when the matter (file no. 19-198 was argued in January 2020. That issue arises because Mr. Camick filed two motions to change when he appeared in court before me on August 20, 2020 including a motion to change in File no. 19-198 It is unclear as to whether this was a subsequent and new Motion to Change or whether there was another similar motion before the court when the jurisdictional issue was argued before Wood J. in January.

[22] Therefore, I do not find that the jurisdictional issue regarding federal licenses and credit reporting is res judicata or that Mr. Camick’s motion is barred based upon that doctrine.

[23] The stay issue is certainly not res judicata. There are new facts which have arisen since the matter was argued before Wood J. in January, 2020, including the cancer diagnosis (which appears to have been “recently diagnosed” as of June 11, 2020[^4]) and the income loss as a result of COVID.

Jurisdiction

[24] If the federal licence suspension and credit reporting are not res judicata, then the Director argues that the court does not have jurisdiction to set those actions aside as requested by Mr. Camick.

Federal License Suspension

[25] The director originally requested Mr. Camick’s federal license suspension in 2004 when the arrears in this matter exceeded $120,000. That suspension remained in effect when the arrears were reduced in January, 2019 and there was apparently no agreement that the federal licenses (in this case, Mr. Camick’s passport) be reinstated.

[26] In its factum, the Director says that there is no jurisdiction in the court to order that the Director withdraw its federal license suspension. That is not, strictly speaking, clear. There is jurisdiction but only to prevent the license suspension (as opposed to reinstatement of the license) and then only within the limited scope of the statutory scheme that permits the Director to suspend federal licenses.

[27] The jurisdiction for the director to suspend federal licenses arises from Federal Legislation namely the FOAEA. Section 67(1) permits the director (or any provincial support enforcement agency) to request that federal licenses be suspended, not issued or not renewed where “a debtor is in persistent arrears”. Section 71 states that there is “no appeal” from a decision of the director to request a federal license suspension. Finally, in s. 72(1), there is an obligation on the provincial enforcement agency to “immediately request that all actions taken under this part… be suspended” where the agency is satisfied that the support payor is no longer in arrears, is complying with a payment plan that the agency considers reasonable or that the debtor is unable to pay the arrears and the suspension is “not reasonable in the circumstances.”

[28] In fact, there is considerable case law that suggests that there is jurisdiction to issue a refraining order preventing the suspension of a federal license or passport. In Horner v. Benisasia, 2013 ONSC 5831, I.W. Andre J. determined that the court had jurisdiction to order the Director from suspending a federal license, including a passport, stating at para. 65 that:

I disagree with counsel for the FRO that I lack jurisdiction to order the FRO to withdraw any federal licence denial application. Section 71 of the federal legislation merely prohibits an appeal "from any action taken under this part;" (re. Licence Denial) the provision does not apply to a motion. McLarty v. Ontario (Family Responsibility Office) [2001 CarswellOnt 539 (Ont. C.A.)], 240, 29 para. 28. However, while I conclude that I have the discretion to order the FRO to refrain from asking the Federal Government to suspend and or refuse to renew Mr. Benisasia's passport, I refrain to do so for the reasons noted above.

[29] However, in McLarty v. Ontario (Family Responsibility Office), 2001 24029 (ON CA), [2001] O.J. No. 707 (C.A.) Laskin J.A. considered the jurisdictional issue regarding the suspension of federal licenses. Although he also confirmed that a motion such as in the present case is not an appeal within the meaning of s. 71 of the FOAEA and the court retains jurisdiction to make an order concerning federal licenses, the right to interfere with the Director’s discretion is narrow at best. At para. 29, Laskin J.A. stated:

However, even assuming that the motions judge had jurisdiction to make an order that the FRO withdraw any federal licence denial application, he had no grounds to make that order. The notice required by s.67(3)(c) of the statute was properly served. If Mr. McLarty wanted to prevent the application from being made under s.67(3)(c)(iv), either he had to enter into an acceptable payment plan or he had to satisfy the FRO that he could not pay the arrears and that the licence denial application would not be reasonable. He did neither. Therefore, the motions judge erred in ordering the FRO to withdraw any federal licence denial application.

[30] In other words, once the notice was served, the court only had discretion to make an order if the support payor complied with the FOAEA and entered into an acceptable payment plan or satisfied the Director that he was unable to pay the arrears and that the license suspension was unreasonable.

[31] In the present case, the notice was sent in 2004. Mr. Camick has been presumably without a passport since then. There is no issue that the notice required under s. 67(3)(c) was properly served and the director’s evidence was that it was so served. The Director’s agent has deposed that neither an acceptable payment plan was entered into and there is no evidence that the payor attempted to demonstrate to FRO that he could not pay the arrears and that the denial of the passport was unreasonable. Under McLarty, there must be evidence of either of those issues prior to the court acting and in the absence of this, the court cannot. In other words, the jurisdiction of the court to issue an order setting aside the passport suspension is limited by the provisions of the FOAEA, and compliance with those provisions has not been demonstrated in the present case.

[32] The two cases which I have reviewed which confirm the jurisdiction of the court to make an order refraining the director from requesting a denial of a passport are Horner v. Benisasia, supra and Lewis v. Ontario (Family Responsibility Office), 2015 ONSC 510. However, both those cases were situations where the Director had served notice of its intention to request denial of the federal licenses, which in each case was a passport. The suspension had not yet occurred in either case. That is distinguishable from the present case where the passport is long gone, and the support payor seeks to set the suspension aside and force a return of the passport. That is effectively an appeal of actions of the director which were taken long ago, and forbidden under s. 71 of the FOAEA. I have no jurisdiction to order a return of Mr. Camick’s passport, or that the Director’s actions from 2004 be reversed; that is entirely different from the refraining motions brought in either Horner or Lewis.

[33] Finally, in the one case where relief was granted, being the Lewis case, there was substantial evidence that it was in the interests of justice that the refraining order go. In that case, the payor required his passport to travel for work, evidence that is absent in this case.[^5] Further, the payor made out a prima facie case for the reduction of support that the Director was seeking to enforce. Although this will be further addressed in the section entitled “stay application”, I note the following:

a. Mr. Camick says in his financial statement that his net taxable income in 2019 from his home renovation business was $5,218 and he managed to pay the $500 per month ordered in January, 2019 throughout that year from that very limited income. He now says that he will make at least $12,000 this year from CERB but cannot make the $500 payments.

b. Although Mr. Camick has filed evidence of his diagnosis for prostate cancer, he has not filed any medical evidence indicating when his surgery will take place or that he cannot work thereafter and for how long.

c. Although Mr. Camick speaks of retiring, that will permit him CPP payments of $389 per month plus OAS payments which are generally in the range of between $600 and $700 per month for a total of about $1,000 per month. That is more than the income that he declared from 2019 from which he was able to make the payments. Moreover, the arrears fixed in January, 2020 (which cannot be changed in this motion to change and child support is no longer payable and had come to an end prior to the order Mr. Camick seeks to change) were about $75,000: at $500 per month, those payments would have gone well into Mr. Camick’s retirement years and his retirement was therefore a foreseeable change in circumstances, generally not a factor to be taken into account in any variation proceeding.

[34] Therefore, it can be seen that there is no prima facie case made out for a refraining order if that was what I was asked to do. In any event, Wood J. was correct on January 8, 2020 when he said that there is no jurisdiction in the court to order that the Director cause the federal authorities to return the payor’s passport or to set aside actions taken by the Director in issuing the suspension notice more than 16 years ago.

[35] What about s. 72(1) of the FOAEA which obliges the Director to suspend the federal license removal where the payor has entered into a payment plan “acceptable” to the Director, and where the Director determines that the continued suspension would be unreasonable? This issue was not raised before me by Mr. Camick or the Director in argument. I note that between January 2019 until April 2020, Mr. Camick continued to maintain the $500 per month arrears payments ordered in this matter and there appear to have been grounds for the director to remove the federal license suspensions assuming Mr. Camick continued to make the arrears payments in this matter.

[36] Apart from the fact that this section is discretionary and no evidence was provided by any party as to whether the issue of the suspension was raised when the arrears were reduced, it is obvious that the Director decided not to remove the federal license suspension under s. 72(1) when the arrears were reduced. The failure of the Director to do so was, in effect, an “action” by the Director not subject to appeal under s. 71 of the FOAEA. I note that there may have been good reason for the Director to refuse to remove the passport suspension, considering that there was evidence that Mr. Camick went to the United States from 2004 through to 2016 during which time he made no support payments under the order whatsoever and the arrears increased from $126,324 to $264,364.

[37] Mr. Camick’s motion at para. 3 of his 14B motion is therefore dismissed.

Credit Reporting

[38] In para. 4 of his 14B motion, Mr. Camick requests an “prohibiting FRO from making any credit reporting… until a date 6 months post pandemic.” However, as set out below, the credit reporting has already been made initially in 2004, and was corrected when arrears were reduced in 2019. Therefore, as with the request for withdrawal of the federal license suspensions addressed above, I am treating this part of the motion as a request that the credit reporting be withdrawn.

[39] Section 47 of the FRSAEA permits the Director to make certain information available to credit reporting agencies such as Equifax. Included in this information is the amount of arrears owing by the support payor: see s. 47.2 of the FRSAEA.

[40] In 2004, when Mr. Camick was seriously in arrears under the original support order, the Director advised the consumer reporting agencies that he owed arrears of $128,988. After the arrears were reduced in January, 2019, the Director advised the consumer reporting agencies that arrears had been reduced to $67,853.28.

[41] So long as the information provided was accurate and reportable under s. 47.2 of the FRSAEA, the provision of that information to a consumer reporting agency is within the discretion of the Director and cannot be questioned. Only if the arrears are further reduced or eliminated, would the Director have an obligation to make a further report to the agencies in question.

[42] In Anderson v. Sitch, [2004] O.J. No. 4582 (S.C.J.), the court considered a motion for an injunction under s. 101 of the Courts of Justice Act[^6] to prevent the Director from reporting arrears to a credit reporting agency. It is to be noted that, in Anderson, the injunction was being requested prior to the Director reporting to the agency rather than after the fact as in the present case. In any event, the motion was dismissed because, in the words of Pierce J. [at para. 28] “there is no evidence… that the Director has exceeded his jurisdiction under the section or exercised his discretion in an improper way”.

[43] That is similar to the present case. When the original report was made to the consumer credit agencies, Mr. Camick was seriously in arrears well in excess of $120,000. When he had the good fortune to have those arrears substantially reduced, the credit agencies were advised of this reduction, and Mr. Camick can hardly complain about that. Moreover, there was no change in the status of what was owed when the last report was made in July, 2019; under para. 3 and 4 of the order of January 30, 2019, “arrears of child support” are set in the amount of $24,481.33 and $50,700 owing to the Ministry of Children, Community and Social Services and Barbara Ryckman respectively. Although the amount owing was reduced substantially, those amounts, however, are still “arrears” owing by Mr. Camick within the meaning of s. 47.2 of the FRSAEA and reportable under that statute. The director has done nothing improper in the exercise of its discretion.

[44] Finally, similarly to the issue of Federal license suspensions, although Anderson confirms that there is jurisdiction to prevent a prospective credit reporting under certain circumstances, there is no jurisdiction either under the Courts of Justice Act or the FRSAEA to order a withdrawal of credit reporting assuming the arrears remain outstanding.

[45] This request for relief set out in para. 4 of Mr. Camick’s 14B motion found at tab 18 of the Continuing Record is therefore dismissed.

Stay of Enforcement

[46] Finally, at paragraph 2 of his motion, Mr. Camick requests a stay of enforcement; he seeks “an order to suspend enforcement, by FRO, of the final order of January 30, 2019 as related to case no FC 18-155 terms of monthly payments of $500 toward the arrears owing to the Ministry and arrears owing to applicant Ms. Ryckman”.

[47] In Yip v. Yip, 1988 4472 (ON SC), [1988] O.J. No. 2784 (H.C.), MacFarland J. determined that mere inability to pay was not sufficient to obtain a stay of proceedings. At para. 14, MacFarland J. stated that it cannot “have been the intention of the legislature to have the mere bringing of application to vary suspend the powers of the director under the S.C.O.E. Act.”[^7] The payor has to at least make out a prima facie case for a variation in the order which was being called into issue.

[48] In the present case, notwithstanding the request of Mr. Camick to “end this now? Without money?”, that would appear to be impossible. The January, 2019 reduction in arrears was based, presumably, on support coming to an end for the children in 2011 and 2014 as provided for in the order. Those facts pre-dated the consent, and there is no basis for going behind an order to further reduce the arrears: see s. 17(4) of the Divorce Act which requires for a variation of a child support order a “change of circumstances… since the making of the child support order or the last variation order in respect of that order.” It is obvious that there is no basis for reducing any arrears as there are no facts affecting those arrears which have occurred since the making of the order as all child support ended in 2014, five years prior to the order.

[49] If Mr. Camick seeks to reduce his payments because of his inability to pay, I have already addressed these issues above. His income has not decreased and in fact, according to his income tax returns had actually increased from a net income of just over $5,000 in 2019 to $12,000 in 2020. He now collects CPP and OAS which will provide him with even more income. He has provided no medical reports stating that he will be unable to work because of the prostate cancer surgery that he says that he will have to undergo. And his retirement was something that was foreseen by the order which was made in 2019 when Mr. Camick was 63 years of age: at the repayment schedule under the order, Mr. Camick will not have paid off the arrears for more than 10 years, well after his anticipated retirement date.

[50] In short, Mr. Camick has not satisfied me that he has a prima facie case for a reduction in the payments to be made under the order. Because of this the request for the stay of proceedings is dismissed.

Order

[51] Mr. Camick’s motion at tab 18 of the Continuing Record is therefore dismissed in its entirety. The interim interim stay issued by Healey J. on July 7, 2020 shall be forthwith lifted and shall have no further force and effect.

[52] There shall be no order as to costs.

McDermot J.

Date: September 10, 2020

[^1]: S.O. 1996, c. 31 [^2]: R.S.C. 1985, c. 4 [^3]: Mr. Camick has not changed his ways. He arrived around 11:00 a.m. on the date this motion was being heard and filed motions to change in both matters when he arrived. [^4]: See Mr. Camick’s affidavit sworn June 11, 2020, Ex. H [^5]: Although Mr. Camick states in the 2018 motion to change in this matter (which resulted in the order reducing arrears which he seeks to change in the most recent motion to change) that he lived and worked in the United States from 2004 to 2016, and it appears he was able to do without an issued passport. [^6]: R.S.O. 1990, c. C.43 [^7]: Now the FRSAEA.