COURT FILE NO.: FS-08-339461-0004
DATE: 20201215
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Mariette Matos, Applicant
AND:
David Driesman, Respondent
BEFORE: Kiteley J.
COUNSEL: Michael J. Polisuk, counsel for the Applicant
Respondent, in person
HEARD: September 11, 2020
ENDORSEMENT ARISING FROM CASE CONFERENCE
[1] The Applicant and Respondent were married in 1997 and separated in 2007. Their children were born in July 1999 and in March 2003. The original Application was issued on June 5, 2008. This case conference addressed financial issues arising from the final order dated April 12, 2020 by Mesbur J. and, specifically, Mr. Driesman’s request for leave to bring motions.
[2] The most recent step was the hearing of the Respondent’s Motion to Change the final order of Mesbur J. dated April 12, 2010. As indicated below, the Respondent was given leave by Shore J. to bring his interim motion to change the child support and s. 7 expenses based on his loss of employment effective March 29, 2019. On March 10, 2020, Nishikawa J. heard submissions and, in a decision dated June 10, 2020, she dismissed his interim motion to change. 2020 ONSC 3621. In an endorsement dated September 4, 2020, Nishikawa J. made an order requiring the Respondent to pay costs in the amount of $8,000.
[3] In her reasons for decision, Nishikawa J. provided an overview of the proceedings, much of which is relevant in this case conference and to which I refer below.
Final Consent Order by Mesbur J. dated April 12, 2010: financial issues
[4] On April 12, 2010, Mesbur J. made a final financial order on consent. Pursuant to paragraph 2(a), out of the Respondent’s one-half share of the proceeds of sale of the home, he paid to the Applicant $110,000 in complete satisfaction of the equalization payment, arrears of child support up to April 30, 2010 and costs ordered by Greer J.
[5] Pursuant to paragraph 3(a), Mr. Driesman was ordered to pay table child support of $1,600 per month based on deemed income of $120,000 per year.
[6] Pursuant to paragraph 3(b) Mr. Driesman was required to pay $12000 per year for the years from and including 2010 to 2014 as his total contribution to the children’s private tuition schooling, Kumon and music lessons. Pursuant to paragraph 3(h), the parties acknowledged that Mr. Driesman’s payment under paragraph 3(b) for the period 2010 to 2014 was made out of capital and that Mr. Driesman’s liability and the parties proportionate contributions, if any, to the paragraph 3(b) expenses would be determined by agreement or court order after May 1, 2015.
[7] Pursuant to paragraph 3(e), Mr. Driesman was required to pay 35% of any medical or dental expense for the children not covered by a plan of insurance and pay $1000 yearly on or before May 15th of each year, as his total contribution towards the costs of the children’s summer day camp and the children’s therapist.
[8] Pursuant to paragraph 3(g) of the final order, the order was not variable before May 1, 2015 except for “a catastrophic and unforeseen change in the parties respective circumstances”. Pursuant to paragraph 3(g)(i), during the non-variable period, the table child support was to be adjusted annually in proportion to the change in the CPI. The order also provided that the Respondent was required to pay child support until varied by agreement or court order. That consent order also addressed property issues.
Final consent order by Jarvis J. dated May 13, 2010: Parenting
[9] On May 13, 2010 Jarvis J. made a final parenting order on consent by which the children were placed in the sole legal custody of the Applicant with a detailed parenting plan. The children were then 11 and 7.
Subsequent proceedings
[10] As a result of filing of a notice of motion by the Respondent in which he asked for a refraining order, the related file, referred to with the file extension 0001 was issued in May, 2012. It appears that Jarvis J. made the order dated May 22, 2012 refraining the Family Responsibility Office from suspending the Respondent’s driver’s licence.
[11] As a result of a Motion to Change Final Order by the Respondent, the related file, referred to with the file extension 0002 was issued in July 2013. Aside from the filing of the motion to change, there are no other entries in the Case History Report.
[12] As indicated above, pursuant to paragraph 3(g) of the consent order of Mesbur J., the amount of the Respondent’s table support and the parties’ proportionate contribution to the children’s section 7 expenses was not variable prior to May 1, 2015 except for a catastrophic and unforeseen change in the parties’ respective circumstances.
[13] After the non-variable period, the Respondent stopped paying the yearly amount for s. 7 expenses which was required pursuant to paragraph 3(e) for summer day camp and the children’s therapist.
[14] In September 2015, Ms. Matos brought a Motion to Change Final Order, referred to with the file extension 0003 in which she sought continued contribution 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. Between November 2015 and June 2017, Mr. Driesman brought nine motions seeking various relief. As indicated in paragraph 16(d) below, that Motion to Change has yet to be heard. In the context of that Motion to Change Final Order the following orders have been made:
(a) In an order dated October 7, 2016, Harvison Young J. (as she then was) granted Ms. Matos’ motion for a temporary order requiring Mr. Driesman to 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. As indicated in paragraph 29 of Ms. Matos’ affidavit sworn September 8, 2020, Harvison Young J. stated: “I emphasize that there can be no determination of Mr. Driesman’s actual income on the basis of the current record before the court”.
(b) In an order dated June 22, 2017, Paisley J. dismissed Mr. Driesman’s motions on the basis that they had been dealt with by Harvison Young J. or Mr. Driesman had failed to comply with the order of Ferguson J. dated April 20, 2017. Paisley J. made an order that Mr. Driesman was prohibited from bringing motions without prior leave of a judge and he directed Mr. Driesman to pay all outstanding costs before applying for leave.
(c) In an order dated September 22, 2017, Paisley J. struck Mr. Driesman’s response to Ms. Matos’ Motion to Change due to his failure to comply with undertakings, in particular, for failing to provide proof of the source of deposits totalling $1.169 million. The decision of Paisley J. was upheld by the Court of Appeal: Matos v. Driesman, 2018 ONCA 660.
[15] As a result of the orders by Paisley J., Mr. Driesman requires leave of a judge to initiate any motions. Furthermore, he has been prohibited from responding to Ms. Matos’ Motion to Change final order.
[16] Based on the Case History Report provided by court staff, it appears that, notwithstanding the order of Paisley J. that he was prohibited from doing so without leave from a judge, on May 1, 2019, Mr. Driesman issued a Motion to Change Final Order of Mesbur J. referred to with the file extension 0004. On May 31, 2019, Ms. Matos filed a response to motion to change. The following orders have been made:
(a) In her endorsement dated May 29, 2019, Kristjanson J. granted 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 providing (i) proof that all outstanding costs orders have been paid and (ii) an updated FRO statement of arrears or statement of payments.
(b) At a case conference held on July 31, 2019, McWatt J. ordered both parties to disclose a lengthy list of financial and other documents.
(c) 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) he provide an authorization permitting Ms. Matos’ counsel to speak to named companies with respect to his involvement with them and (ii) 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 a breakdown of how certain RESP funds were used.
(d) At a settlement conference before Goodman J. on January 27, 2020, the parties agreed that at the hearing of the interim motion to change the final order, 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 2015 Motion to Change (with file extension 0003) provided that Mr. Driesman proceeded in accordance with the process set out for the leave motion. Mr. Driesman provided the authorizations and further affidavit and paid $13,000 in costs, as required by Shore J.
Motion by Mr. Driesman to change the final order dated April 12, 2010 on an interim basis
[17] On March 10, 2020, Nishikawa J. heard Mr. Driesman’s motion to change, on an interim basis, the final order of Mesbur J. dated April 12, 2010. At paragraph 21 and 22, Nishikawa J. listed the orders that he sought and at paragraph 22, she listed the additional issues that he raised in his affidavit. As indicated in paragraph 24, the only issue was whether he had experienced a material change in his income after March 29, 2019. Her reasons for decision were released June 10, 2020 [2020 ONSC 3621]. She dismissed Mr. Driesman’s Motion to Change the final order on an interim basis.
[18] In paragraphs 32 to 43 Nishikawa J. reviewed the evidence on his allegation of reduction in income due to loss of employment on March 29, 2019. At paragraph 41, Nishikawa J. held that Mr. Driesman had not established that he had experienced a material change in circumstance. She concluded that the evidence showed only a temporary change in circumstances. At paragraph 43 she held as follows:
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”.
[19] At paragraph 42, Nishikawa J. also referred to the evidence before her and in paragraphs 44 to 68, she outlined in detail the basis upon which she concluded in paragraph 68 as follows:
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.
[20] In paragraph 69 Nishikawa J. made an order dismissing Mr. Driesman’s motion to vary child support and s. 7 expenses on an interim basis. At paragraph 70, she did vary the final order in one respect, namely by specifying that the table support for Victoria would be paid only for the four months of the year that she was home from university.
[21] In paragraphs 73 to 76, Nishikawa J. established the procedure for next steps.
[As contemplated by Goodman J. in her endorsement referred to in paragraph 16(d) above] 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.
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 competed so that any motions that proceed are on a complete record.
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.
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.
[22] In an endorsement dated September 4, 2020, Nishikawa J. made an order requiring Mr. Driesman to pay partial indemnity costs in the amount of $8,000 including disbursements and HST. At the case conference on September 11, 2020, Mr. Driesman had not made the payment.
Events after the decision of Nishikawa dated June 10, 2020
[23] Mr. Driesman served a form 17 notice for the case conference scheduled for September 11, 2020. He indicated that the conference would deal with the following issues: “review disclosure of both parties, as described in Justice Nishikawa’s June 10, 2020 endorsement”.
[24] On September 1, 2020 at 3:44 p.m. (the day that service was required pursuant to paragraph 75 of the decision of Nishikawa J.) Mr. Driesman served by email the following: a “summary of outstanding disclosure”, a form 14B motion; a form 14A affidavit, a form 15 Motion to Change Final Order, a form 13 financial statement, and a form 17 case conference brief.
[25] In his form 14B motion, Mr. Driesman asked for the following:
- leave of the Court for the Court to hear this motion:
An order that the Applicant/Mother provides the budget of the post secondary education cost of Daughter, Victoria for the 2020/2021 school year;
An order that the Applicant/Mother discloses the actual costs of post secondary Education for Daughter, Victoria for the 2017/2018 , 2018/2019 and 2019/2020 school year;
An Order the Applicant/Mother discloses all RESPs, trust funds, investments, bank accounts, saving accounts joint or otherwise in the name of [either child] from January 2016 to August 2020;
An Order for disclosure of all bursaries, scholarships, loans and tuition fees, residence fees, rent, utilities etc received and paid by Victoria or for Victoria;
An Order which terminates any child support for Victoria, at the end of her 4 year post secondary school education April 2021;
An Order that the Respondent/Father pay to the Applicant/Mother the support amount of $473.50/monthly for Devin only and in summer months $947.00 including Victoria Driesman born on 1 July 1999 and Devin Driesman born on 8 March 2003;
An Order terminating the section 7 expenses for Victoria Driesman born on 1 July, 1999 as of September 1, 2017 and Devin Driesman born on 8 March 2003 as of April 1, 2019;
An Order that the Applicant/Mother return the overpayment of child support and tuition she received while Victoria did not reside at home and the overpayment of s. 8 expenses she received for Vitoria while simultaneously having the tuition and living expenses for Victoria paid via RESP, Trust funds, bursaries and scholarships; assumed to be $23,842.03;
An order that the children, Victoria Driesman born on 1 July 1999 and Devin Driesman born on 8 March 2003 be declared over the legal age to participate in Camps and/or Therapy;
An Order that payments to Camp or Therapy be terminated immediately as the children do not attend Therapy and are over the age to attend camp;
An Order that the Applicant/Mother provide the Respondent/Father copies of Devin’s Social Insurance card and health card;
An Order restraining the Applicant/Mother from withdrawing or changing any or all financial accounts held in trust for the children, Victoria Driesman and Devin Driesman;
An Order that the Applicant/Mother comply with the final orders of The Honorable Justice Jarvis dated May 13, 2020 and The Honorable Madam Justice Mesbur dated April 12, 2010;
An order finding the Applicant/Mother not complying with the court orders on access;
An order that the Applicant/Mother discloses all accounts for the children, Victoria Driesman and Devin Driesman and the Notice of Assessments for both children from 2016 to date;
An order the balance of the matrimonial home trust fund be divided equally between the Applicant and Respondent, and paid to each forthwith;
Costs on a substantial indemnity basis;
Such further and other relief as the Honorable Court may deem just.
[26] In that form 14B notice of motion, Mr. Driesman indicates that he is relying on his affidavit sworn September 1, 2020. The affidavit he served is dated on page 1 as August 24, 2020 but it was sworn September 1, 2020. It consists of 12 pages and 69 paragraphs and covers these topics: Background, Child Support, Funding Post Secondary Education – Victoria, Change to Lower cost Private and then to Public (for Devin), Over payment of Child support and Section 7 Expenses, Child Support Arrears, Disclosure issue, Accusation of $1,169,147.24 in deposits bank account “not explained” or “un-reported” income, Respondents Work History and Income, Building as income, Other Claims and accusations, Trust fund – Matrimonial Home.
[27] Mr. Driesman served a form 13 financial statement sworn September 1, 2020 in which he indicates that he is paying “$1686.64 per month in child support” and “$1000 in unreasonable s.7 expense”. In part 4, he shows as a debt “unpaid support” in the amount of $27051.60.
[28] Mr. Driesman served a six page case conference brief dated September 1, 2020 in which he indicates that the issues that have not yet been settled are: “payments for post secondary education for estranged daughter, Victoria Driesman, overpayment child support from 2017 to date”. In paragraph 11 he listed the following issues:
Reduction of child support, the respondent lost his job in March 2019 (closure of NA Facility), and has obtained employment at a lower rate.
Termination of s.7 expenses as neither children attend camp, Kumon and therapy.
University education payments, Respondent was never consulted, about affordability, nor provided a budget and ability or willingness to support payments beyond a “Canadian 4 year university” and beyond the funds available from the RESP and Trust funds available.
Return of the overpayment in child support, from 2017-current as Daughter does not reside at home, and Applicant continued to collect child support. RESP, trusts, bursaries and scholarships, were used to pay for school and residence, but the Respondent still paid Applicant.
Full accounting of costs University, scholarships, bursaries, etc, Tuition, Soccer.
Compliance with Access, Applicant does not follow agreement, interferes with access, and books her own holidays on Respondents access time without consulting, agreement or compensating Respondent.
Applicant leaves country without consent, interferes with access, lies to Parenting co-ordinator, produces fraudulent documents to support her lies.
Applicant/Mother to comply with Court orders, Specifically: Access, consultations about financials and School Choices.
Disclosure of RESPs, trust funds etc by Applicant for children’s education.
[29] In paragraph 12 of the case conference brief, Mr. Driesman listed his proposal to resolve the issues as follows:
Define child support payable by Respondent based on current income.
Refund the overpayment of child support for times daughter or son does not reside with Mother, defined by Justice Nishikawa as 8/12 of the year for years 2017 – current $23,842.03. How much is owed.
Termination of child support for Daughter, Victoria at the end of 4 years university April 2021.
[30] In paragraph 13 of the case conference brief, he asked the court to make a temporary or final order with respect to the list in his form 14B notice of motion and he repeated the list found in paragraph 25 above.
[31] In paragraph 20 of the case conference brief, he indicated that “other issues” that should be reviewed at the case conference are as follows:
Affordability of “out of Country University”, was it reasonable and affordable to the Respondent. Why did the Applicant not respond to her undertaking in this matter? Why did the Applicant not consult with the Respondent regarding school, considering it is part of the Justice Jarvis order. Similarly why the Respondent was not consulted prior to the withdrawal of the RESP as per Justice Mesbur order.
Soccer trips out of country not reasonable s.7 expenses.
[32] Mr. Driesman served a Motion to Change dated September 1, 2020 in which he seeks to change the final order of Mesbur dated April 12, 2016. This document does not have a file extension to indicate whether it is 0004 which he initiated in 2019 and for which he now seeks leave to continue, or an attempt to issue a fresh Motion to Change without seeking leave pursuant to the order dated June 22, 2017. Based on the Case History Report, it appears that he did not have this Motion to Change issued which means it is not operative as a Motion to Change.
[33] On page 3 of this “Motion to Change”, he indicated that he was asking for an order that he have access to Devin on the basis that the Applicant/Mother comply with the Court Order of Justice Jarvis dated May 13, 2020. And he asked that the final order dated April 12, 2020 for child support for Victoria be terminated effective April 30, 2021. Mr. Driesman asked for an order varying the April 12, 2010 order so that, based on his annual income of $62,124 he would pay $947/473.50 per month for Devin and for Victoria when residing in the summer only and that those payments start on October 1, 2020.
[34] In paragraph 9 of this “Motion to Change”, Mr. Driesman asked that the orders of Mesbur J. and Nishikawa J. be changed as follows:
An order that the Respondent/Father pay to the Applicant/Mother the support amount of $473 per month for Devin and $947 per month when Victoria resides with the mother in the summer months.
An order that the Respondent/Father not paying the Applicant/Mother support for Victoria for the period she does not reside at home be retroactive from September 2017.
An order that the Respondent/Father not pay the Applicant/Mother child support and s7 expenses for Victoria when she has finished 4 years of University in April 2021.
[35] In paragraph 10 of this Motion to Change, Mr. Driesman asked the court to make the same orders as he listed in his form 14B motion and in his case conference brief, referred to in paragraph 25 above.
[36] As indicated above, Nishikawa J. was specific about what the parties were to file, namely a summary of outstanding disclosure and a case conference brief not exceeding 5 pages. Mr. Driesman did serve and file both of those but he served many other documents, on the 10th day before the case conference.
[37] At the outset of the remote hearing on September 11, 2020, I reviewed with the parties what documents I had received and I was advised that Ms. Matos had served an affidavit sworn September 8, 2020 and a case conference brief. Neither was available in the digital file. At my request, during the case conference, Mr. Driesman forwarded by email to my Registrar Ms. Matos’ affidavit without 17 attachments. In reviewing the electronic court file after the conclusion of the case conference, I could not locate Ms. Matos’ affidavit sworn September 8, 2020 or her case conference brief. At the request of my assistant, Mr. Polisuk provided both along with an email he had sent to court staff on September 14 requesting that they be inserted into the electronic file.
[38] In Ms. Matos’ case conference brief, as directed by Nishikawa J. she provided at Schedule A the list of Mr. Driesman’s outstanding disclosure and at Schedule B, her response to Mr. Driesman’s disclosure request. Ms. Matos asked that the court make a temporary order that Mr. Driesman provide the disclosure listed in Schedule A. Between her affidavit and her case conference brief, she takes the position that the court should not grant leave to Mr. Driesman to bring any motions.
[39] Mr. Driesman had served an affidavit dated September 9, 2020 (although there is no signature) in response to the affidavit of Ms. Matos.
[40] At the conclusion of the case conference on September 11, 2020 I indicated that I was unable to advise immediately as to the nature of the orders I intended to make. As I said, I was unable to identify how I could assist the parties in creating order out of chaos. I suggested to the parties that they might find a way to put aside their disclosure differences and try to settle all outstanding matters. Mr. Polisuk agreed to take instructions from his client. I indicated to Mr. Driesman that if he received a settlement proposal from Mr. Polisuk, he should respond within 7 days or so, and that it was important for the parties to have a dialogue.
[41] In an email to court staff on October 5, 2020, Mr. Driesman took the position that I had given a direction to the Applicant to make an offer to settle to resolve all issues and he had not received it. I had not “given a direction”. I had made a suggestion that Ms. Matos do so. I did not establish a time limit within which it might be done. I instructed staff that a response was not required to Mr. Driesman’s email.
Analysis: Mr. Driesman’s request for leave to bring motions
[42] To summarize:
(a) pursuant to the order dated June 22, 2017, Mr. Driesman was prohibited from bringing motions without prior leave of a judge;
(b) pursuant to the order dated September 22, 2017, Mr. Driesman’s response to Ms. Matos’ Motion to Change (file extension 0003) was struck. That decision was upheld by the Court of Appeal. Mr. Driesman has no right to participate in Ms. Matos’ Motion to Change;
(c) pursuant to the order dated October 18, 2019, Mr. Driesman was given leave to bring his interim Motion to Change paragraph 3(a) of the final order, on the basis of his loss of employment effective March 29, 2019;
(d) pursuant to the order dated June 10, 2020, Mr. Driesman’s motion for an interim order changing paragraph 3(a) of the final order dated April 12, 2010 on the basis of loss of employment in March 2019 and reduced income was dismissed;
(e) pursuant to the order dated September 4, 2020, Mr. Driesman was ordered to pay costs of the hearing in the amount of $8,000.
[43] At this case conference, the key issue is whether to grant leave to Mr. Driesman to take any further steps in his Motion to Change (file extension 0004).
A. Jurisdiction
[44] Pursuant to rule 1(7.2) of the Family Law Rules, this court has jurisdiction to make procedural orders such as granting leave. Pursuant to rule 2(2), the primary objective of the rules is to enable the court to deal with cases justly. Pursuant to rule 2(3), dealing with a case justly includes ensuring that the procedure is fair to all parties, saving expense and time, dealing with the case in ways that are appropriate to its importance and complexity and giving appropriate court resources to the case while taking account of the need to give resources to other cases.
B. Circumstances of the children
[45] Victoria is in her fourth year of medical school at Rochester University. As indicated in paragraph 19 of the decision of Nishikawa J., 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 $27,486 USD. Nishikawa J. indicated that it was not clear whether Victoria receives a scholarship and financial aid every year. She noted that Ms. Matos advised that $44,825.20 in an 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.
[46] Victoria does not have a relationship with her father. She is 21 years old.
[47] As indicated in paragraph 20 of the decision of Nishikawa J., Devin then attended Toronto Prep School where the tuition was $27,250 CAD per year. At that time, Devin participated in competitive soccer, which costs approximately $15,000 per year. Devin is almost 18 years old. He is in grade 12.
C. Factors relevant to whether leave is granted to Mr. Driesman to bring motions
[48] The following factors bear on the decision whether to grant leave.
[49] First, as indicated above, there are two prior orders: the order requiring Mr. Driesman to seek leave before bringing a motion and the order depriving him of the right to respond to Ms. Matos’ Motion to Change (file extension 0003). In his proliferation of unauthorized motions (the form 14B and form 15 Motion to Change) Mr. Driesman made no attempt to identify which order he requested fell into which category but I must do so because he has no status to bring any motions or otherwise respond to Ms. Matos’ Motion to Change. As indicated below, I have categorized them so as to determine which, if any requests, might be permitted.
[50] Furthermore, he seems to disregard the observation of Nishikawa J. in paragraph 73 that “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”. He made no attempt to provide clarity to assist the court in deciding whether leave should be granted. He disregarded the direction by Nishikawa J. in paragraph 74 and filed additional material with impunity.
[51] Second, Mr. Driesman seems to disregard the decision of Nishikawa J. that his motion to vary the final order on an interim basis was dismissed. He has not provided any evidence on which this court could conclude that the record on which he would rely to prove that he had experienced a material change in circumstances as a result of his loss of employment in March 2019 can be proven if he was given leave to bring the Motion to Change paragraph 3(a) of the final order of Mesbur J.
[52] Third, based on the record available to me, I do not know whether Mr. Driesman is complying with paragraph 3(a) of the final order dated April 12, 2010. On page 3 of his form 13 financial statement sworn September 1, 2020, in his list of expenses, he indicates that he is paying “$1686.64 per month in child support” and “$1000 in unreasonable s.7 expense”. On page 5 he shows a debt of “unpaid support” in the amount of $27051.60”. Yet, in paragraph 12 of his affidavit dated September 9, 2020, he says the following:
I am paying child support at my current level of income. I have made overpayment in the previous years which I believe are due to me, but because the Applicant has not completed her disclosure, I cannot proceed with that motion for repayment, she is delaying the process.
[53] In paragraph 40 of Ms. Matos’ affidavit, she says the following;
The Respondent states that Victoria is at University in the United States and he shouldn’t have to pay support for her. He is, however, in my view, required to contribute to her schooling even if considered at a rate of $22,000 for Canadian University tuition and related living expenses and not U.S. tuition. For over a year now the Respondent has either paid $0 many months or more recently started paying $600 per month which is well below what he is required to pay; when he avoids his responsibility for payment of child support he places me in a financially precarious situation.
[54] It appears that Mr. Driesman has taken matters into his own hands by unilaterally reducing his child support payments. Having been unsuccessful in his motion before Nishikawa J., Mr. Driesman is required to pay pursuant to paragraph 3(a) of the final order which provides for table child support based on deemed income of $120,000 in the amount of $1686.64 (with the cost of living adjustment in paragraph 3(g)(i)) and required by the order by Harvison Young J. to continue to pay $1000 per month in s.7 expenses. Instead, he acts with impunity.
[55] It is not fair to Ms. Matos if the court exercised its discretion in favour of a litigant who flouts his legal obligation to pay child support.
[56] In many requests referred to above, Mr. Driesman has the following themes:
(a) paragraph 3(a) of the final order of Mesbur J. should be varied effective March 2019 to be based on what he continues to insist is his income of $62,124;
(b) the support for Victoria must end in April 2021 when she completes her four year degree;
(c) he is entitled to a refund for an overpayment he insists he has been compelled to make.
[57] As indicated above, Mr. Driesman has served a form 14B motion, a case conference brief and a form 15 motion to change final order. In each of those, he provides the same list of orders he wants to pursue. I will not address any of the other lists he has provided in any of those documents. I intend to deal with those requests listed in paragraph 25 by grouping in categories.
GROUP A: Parenting
[58] The orders Mr. Driesman seeks in this category are these:
#10 An Order that the children be declared over the legal age to participate in camps and/or therapy.
#11 An order that payments to camp or therapy be terminated immediately as the children do not attend therapy and are over the age to attend camp.
#15 An order finding the Applicant/Mother not complying with the court orders on access.
[59] For the first time, Mr. Driesman has indicated a desire to bring a motion to change the final order of Jarvis J. The children are 21 and almost 18. This court will not grant leave to allow Mr. Driesman to bring any such motions.
GROUP B: Mr. Driesman’s request to pursue his Motion to Change (file extension 0004) the final order arising from the allegation of a material change caused by his loss of employment in March 2019 and reduced income
[60] The only order the Mr. Driesman lists in this category is as follows:
#7 an order that the Respondent/Father pay to the Applicant/Mother the support amount of $473.50 monthly for Devin only and in summer months $947 including Victoria.
[61] However, that is one of his three themes, namely the variation of paragraph 3(a) of the final order based on his loss of employment in March, 2019 and reduced income.
[62] In this request, Mr. Driesman is, in effect, asking that his Motion to Change Final Order be heard and granted.
[63] Based on the content of the proliferation of material for this case conference, Mr. Driesman does not understand that his motion to change on an interim basis was dismissed. He has not provided any evidence on which this court could conclude that the record on which he would rely to prove that he had experienced a material change in circumstances as a result of his loss of employment in March 2019 can be proven if he was given leave to bring the motion to change the final order of Mesbur J.
[64] As indicated above, in an order dated June 22, 2017, Paisley J. required Mr. Driesman to seek leave before bringing any motions. On the record in this case conference, Mr. Driesman has provided no explanation as to why he ought to be granted leave and why, if granted leave, his motion to change final order on a final basis would be more successful than it was before Nishikawa J. on an interim basis. As noted by Nishikawa J. in paragraph 30 of her decision, Mr. Driesman failed to meet the “urgent or pressing” standard required in an interim motion. The standard is less onerous if he were granted leave to make a further attempt in the context of changing a final order on a final, not interim, basis. However, other than denials, Mr. Driesman has failed to provide a response to the observations by Nishikawa J. in paragraphs 44 to 68 as to the inadequate record.
[65] This court will not grant leave to pursue the claim to vary paragraph 3(a) of the final order based on his loss of employment in March 2019 and his reduced income. In view of his approach to this request for leave, particularly referenced in paragraphs 52 to 54 and in paragraphs 63 and 64 above, the outcome must be made clear to him. Mr. Driesman has lost the opportunity to seek a variation based on his loss of employment in 2019 and his reduced income. The process of seeking variations to final orders must be fair to both parties. It would be unfair to Ms. Matos to leave any possibility that Mr. Driesman could pursue that claim.
GROUP C: Mr. Driesman’s requests in response to Ms. Matos’ Motion to Change Final Order
[66] I do not have a copy of the Motion to Change Final Order issued by Ms. Matos in September, 2015 (file extension 0003). However, it is clear from the reasons for decision by Harvison Young J. that the focus was on continued contributions from Mr. Driesman toward s. 7 expenses. As indicated in paragraphs 15 and 73 of the decision of Nishikawa J. (and as mentioned in paragraph 16(d) above) Ms. Matos had agreed not to pursue her Motion to Change as long as Mr. Driesman proceeded in accordance with the process set out for the leave motion. She has deferred for what has turned out to be 5 years from the issuance of her Motion to Change Final Order. It is in that context that one of his three themes emerges, namely that he has overpaid and is entitled to a refund.
[67] In my view, the orders Mr. Driesman seeks in this category are as follows:
#2 An order that the Applicant/Mother provides the budget of the post secondary education costs of Daughter, Victoria for the 2020/2021 school year;
#3 An order that the Applicant/Mother discloses the actual costs of post secondary education for Victoria for the 2017/2018, 2018/2019 and 2019/2020 school years;
#4 an order that the Applicant/Mother discloses all RESPs, trust funds, investments, bank accounts, saving accounts joint or otherwise in the name of either child from January 2016 to August 2020;
#5 an order for disclosure of all bursaries, scholarships, loans and tuition fees, residence fees, rent, utilities etc received and paid by Victoria or for Victoria;
#8 an order terminating the section 7 expenses for Victoria as of September 1, 2017 and for Devin as of April 1, 2019;
#9 an order that the Applicant/Mother return the overpayment of child support and tuition she received while Victoria did not reside at home and the overpayment of s. 7 expenses she received for Victoria while simultaneously having the tuition and living expense for Victoria paid via RESP, Trust funds, bursaries and scholarships, assumed to be $23,842.02.
[68] Pursuant to the order dated September 22, 2017, Mr. Driesman’s response to Ms. Matos Motion to Change (file extension 0003) was struck. That decision was upheld by the Court of Appeal. This court does not have jurisdiction to grant leave. Mr. Driesman has no right to pursue any of those requests. Mr. Driesman has no right to request or to otherwise respond to Ms. Matos’ Motion to Change (with file extension 0003) by seeking a refund for alleged overpayment.
GROUP D: Miscellaneous orders
[69] The orders Mr. Driesman requests in this category are as follows:
#12 an order that the Applicant/Mother provide the Respondent/Father copies of Devin’s social insurance card and health card;
#13 an order restraining the Applicant/Mother from withdrawing or changing any or all financial accounts held in trust for the children;
#14 an order that the Applicant/Mother comply with the final orders of Jarvis J. dated May 13, 2020 and Mesbur J. dated April 12, 2010;
#16 an order that the Applicant/Mother disclose all accounts for the children and the notices of assessments for both children from 2016 to date;
#17 an order that the balance of the matrimonial home trust fund be divided equally between the Applicant and Respondent and paid to each forthwith.
[70] None of those requests can be pursued. Those aspects of the orders are final and cannot be the subject of a Motion to Change final order.
[71] This court will not grant leave for any of those requests.
GROUP E: Support for Victoria
[72] The order Mr. Driesman seeks in this category is as follows:
#6 An order that terminates any child support for Victoria, at the end of her four year post secondary education April 2021.
[73] Mr. Driesman asserts that Victoria will finish her four year university program in April 2021 and at that point child support ends. In her case conference brief, Ms. Matos did not confirm that she was graduating and did not agree that child support ended. In the final order dated April 12, 2010, the child support does not end at an age or an event. As a result, whether child support continues after graduation from a post-secondary institution depends on whether the child is “a child of the marriage within the meaning of the Divorce Act.” If Ms. Matos does agree that child support ends, she can inform the Director, Family Responsibility Office and an order is not required. If she does not agree that child support ends for Victoria, then the final order dated April 12, 2010 will continue.
[74] Even if child support for Victoria ends, table child support and s. 7 expenses for Devin will continue although they may require adjustment depending on his post-secondary plans.
GROUP F: Any other requests made by Mr. Driesman
[75] As indicated above, Mr. Driesman used the same list of 19 requests in his form 14B motion, his case conference brief and his form 15 Motion to Change. I have categorized each of them and included the three themes he has been pursuing. His material included many other issues. It is not necessary for me to consider any of the other points he raised or orders he requested at the case conference because they overlap with one or more of the 19 requests. As indicated in paragraph 84, there are no requests for leave that this court will allow.
Disclosure by Mr. Driesman
[76] The court is not granting leave to Mr. Driesman to take any proceedings. For that reason, it is not necessary to make an order requiring him to provide further disclosure. However, because it has been such a controversial subject, it is reasonable to make findings as to where disclosure stands. As indicated below, I accept the submissions by Ms. Matos as to the state of disclosure.
Costs
[77] Mr. Driesman was not successful in obtaining leave. In her case conference brief, Ms. Matos asked for costs and pursuant to rule 24(1), she is presumed to be entitled to costs. In keeping with the primary objective, I intend to fix modest costs without requiring written submissions.
ORDER TO GO AS FOLLOWS:
[78] The motion by Mr. Driesman for leave to bring his Motion to Change final order (file extension 0004) on the basis of loss of employment in March 2019 and reduced income is dismissed.
[79] Mr. Driesman is prohibited from bringing any future Motion to Change final order on the basis of loss of employment in March 2019 and reduced income.
[80] The order made by Harvison Young J. dated October 7, 2016 continues to apply.
[81] The order made by Paisley J. dated June 22, 2017 continues to apply, namely that Mr. Driesman is prohibited from bringing any motions (form 14B motions and form 15 Motion to Change Final Order) without prior leave of a judge and he must pay all outstanding costs before applying for leave.
[82] The order made by Paisley J. dated September 22, 2017 (as confirmed by the Court of Appeal in an order dated July 24, 2018) continues to apply, namely that Mr. Driesman’s response to Ms. Matos’ motion to Change Final Order is struck.
[83] Ms. Matos does not need leave to continue the Motion to Change Final Order that she commenced in September 2015 (file extension 0003). Mr. Driesman has no right to respond to that Motion to Change Final Order and no right to participate in the proceeding.
[84] The motion by Mr. Driesman for leave to bring the motions listed in paragraph 25 above, and any and all requests reflected in his form 14B motion, his case conference brief and his “Motion to Change” are dismissed.
[85] Mr. Driesman has failed to provide disclosure as listed in Schedule A.
[86] Ms. Matos has provided disclosure as listed in Schedule B.
[87] By February 1, 2021, Mr. Driesman shall pay to Ms. Matos costs of this case conference fixed in the amount of $1000.00.
[88] This order takes effect without being formally signed and entered.
[89] Ms. Matos may forward to my attention an unapproved draft order incorporating paragraphs 78 to 87 attached to which are Schedule A and Schedule B in her case conference brief.
Kiteley J.
Date: December 15, 2020