Berta v. Berta, 2021 ONSC 2823

COURT FILE NO.: F-68/20

DATE: 2021-04-12

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Family Responsibility Office for the Benefit of Delia Berta v. Raymond Berta

BEFORE: The Honourable Madam Justice L. Bale

COUNSEL: E. Francescutti for the Applicant

P. Callahan for the Respondent payor, with the Respondent attending

M. Zalev and A. Franks for the support recipient, present but not participating

HEARD: March 8, 2021 – via Zoom (video)

ENDORSEMENT

OVERVIEW

[1] The Respondent payor, Mr. Berta, seeks to change, set aside, vary or amend the Final Default Order of Lafrenière J. dated December 11, 2020, wherein:

1. The payor’s arrears of support were fixed at $480,169.96;

2. The payor was ordered to pay:

a. Ongoing support of $13,759.00 per month;

b. Arrears of support at a rate of $6,374.00 per month;

c. Lump sum payments towards arrears of support of $147,497.37 by March 1, 2021, and $103,088.55 by May 1, 2021;

3. In default of any payment ordered, the payor to be incarcerated for a period of three days for each and every default and the FRO to be at liberty to bring a motion for a warrant of committal on notice to the payor.

[2] The payor relies upon Rule 25(19) of the Family Law Rules, as the basis for his request to set aside the Final Default Order. The Director of the Family Responsibility Office (“FRO”) is opposed to the relief sought.

THE FACTS

[3] The issue of entitlement, quantum and enforcement of spousal support has been a hotly contested topic between the support recipient and support payor for many years. Some of the more major events, relevant to the subject-matter of this motion, include the following steps and hearings:

a. In January 2011 a Temporary Order for the payment of interim spousal support by the payor, Mr. Berta, to the recipient, Ms. Berta, was made in the Superior Court of Justice in Milton, Ontario: Berta v. Berta, 2011 ONSC 42;

b. A nine-day trial was completed in 2013 and spousal support was ordered on a Final basis: Berta v. Berta, 2014 ONSC 3919;

c. The issue of spousal support was successfully appealed to the Ontario Court of Appeal in 2015: Berta v. Berta, 2015 ONCA 918;

d. A reconsideration of the issue of spousal support was heard by the Superior Court of Justice in 2016 and a Final Order for the payment of spousal support was made: Berta v. Berta, 2016 ONSC 5723;

e. The matter was again appealed to the Ontario Court of Appeal in 2017: Berta v. Berta, 2017 ONCA 874. The Court of Appeal allowed the appeal as to quantum of spousal support and a new Final Order was made for indefinite spousal support payable by the payor to the recipient in the amount of $13,759.00 per month;

f. The Respondent commenced Motion to Change proceedings in Milton, Ontario;

g. On July 17, 2018 the court ordered a set-off of costs previously ordered payable by the recipient to the payor as against the spousal support arrears owing. The resulting set-off amount owing by the payor to the recipient after adjustment was $147,597.37 at the time;

h. On January 8, 2019 the payor brought a motion for an interim reduction/stay in the quantum of spousal support payable: Berta v. Berta, 2019 ONSC 505. The motion was unsuccessful. The court concluded that (1) the payor had not presented a strong prima facie case, and (2) the payor had not demonstrated hardship;

i. On March 26, 2019 the payor husband withdrew his Motion to Change. The issues raised in response by the recipient wife remained outstanding;

j. On May 15, 2019 the court ordered costs against the payor relating to his unsuccessful interim support motion, fixed in the sum of $65,288.55: Berta v. Berta, 2019 ONSC 2632. On April 26, 2019 those costs were ordered to be enforceable as support by the FRO;

k. In March 2019 the Ontario Court of Appeal upheld the decision of the court to set-off the costs award owing by the recipient as against spousal support owing to her by the payor: Berta v. Berta, 2019 ONCA 218. Costs were ordered against the payor;

l. On October 17, 2019 a further costs order was made against the payor resulting, in part, from the withdrawal of his Motion to Change: Berta v. Berta, 2019 ONSC 5987. Costs were fixed in the sum of $37,800.00. On October 25, 2019 these costs were also thereafter ordered enforceable as support by the FRO;

m. In November 2020 the payor commenced another Motion to Change – this time in the Superior Court of Justice, Family Court Branch in Hamilton;

n. In January 2021 the Hamilton Family Court transferred the Respondent’s motion to Change from Hamilton to Milton to “re”-join the existing related case in that jurisdiction: Berta v. Berta, 2021 ONSC 605.

[4] The FRO has been involved in enforcement of spousal support for this family since the interim order for spousal support commencing on January 1, 2011.

[5] At present, the Director of the FRO is enforcing:

1. The monthly spousal support obligation of the payor of $13,759.00 as per the decision of the Ontario Court of Appeal dated November 16, 2017;

2. Two costs awards (enforceable as support) of Kurz J.:

i. $65,288.55 (May 15, 2019); and

ii. $37,800.00 (October 17, 2019).

[6] The Respondent payor has made no voluntary payment towards his support obligation since April 1, 2019.

[7] In January 2020 the payor’s total support arrears totaled close to $500,000.00. The FRO has taken enforcement action, the relevant history of which is summarized as follows:

a. On January 20, 2020 the Director of the FRO commenced a Default Hearing against the support payor;

b. The Notice of Default Hearing, including a Default Dispute form and blank Financial Statement were served personally upon the payor on February 7, 2020, as per the FRO Affidavit of Service filed[^1];

c. The Notice of Default Hearing advised, inter alia, that:

1. The payor must attend court on March 25, 2020 at 1:00 p.m.;

2. The payor must fill out, serve, and file the attached Financial Statement and Default Dispute Forms within 10 days;

3. The payor may bring a lawyer to court;

4. If the paperwork is not served and filed or if the payor does not attend court as required, a warrant may be issued for his arrest; and

5. At the default hearing the court may make an order against the payor, including an order for imprisonment of up to 180 days.

d. The payor did not serve and file a Financial Statement or Default Dispute within 10 days (i.e. by February 17, 2020)[^2];

e. On March 15, 2020 the Chief Justice of the Superior Court of Justice issued a Notice to the Profession suspending all regular court operations effective March 17, 2020, and adjourning all scheduled court appearances.

f. The payor advises the court that upon the suspension of court operations he contacted his counsel, Mr. Callahan. He was advised by Mr. Callahan that his office contacted the Hamilton Family Court and was advised that every case scheduled for a hearing in March 2020 was being administratively adjourned to June 9, 2020 ‘to be spoken to’.

g. Shortly thereafter the payor advises that he received mailed correspondence by mail from the FRO dated March 26, 2020 confirming that his court date was being administratively adjourned, that he need not attend the previously scheduled date, and that the FRO would send him written notice of his new court date.

h. In May 2020 the payor was advised his counsel that a Notice to the Profession had been circulated indicating that matters previously adjourned to June 9, 2020, were now administratively adjourned to July 14, 2020 at 10:00 a.m. On June 24, 2020 the FRO sent correspondence to the payor by regular mail advising that his new court date was scheduled for July 14, 2020 at 10:00 a.m.

i. On July 7, 2020 the FRO sent correspondence to the payor by regular mail advising that the court date was being rescheduled to a later date, that he need not attend his scheduled court date, and that the FRO would advise of the new date and time. The payor was directed to the Superior Court of Justice website and the applicable FRO telephone numbers for further information.

j. On September 18, 2020 the FRO sent further correspondence to the payor by regular mail. That correspondence:

1. advised the payor that his court date was adjourned to October 14, 2020 at 2:00 p.m.;

2. advised the payor that the court matter would be heard by telephone or video rather than in-person at the courthouse; and

3. provided the log-in details (i.e. zoom link and telephone information) for the remote attendance.

k. On October 14, 2020 the matter came before this judge on the FRO list, as scheduled. The Respondent did not attend. On that occasion the FRO sought a Default Order against the payor. Out of an abundance of caution and the unique circumstances arising from the COVID-19 court shutdown, this court declined to grant an order against the payor in his absence. Instead, the court ordered as follows:

1. This matter is adjourned to December 11, 2020 at 2:00 p.m. for a ½ hour default hearing. A Final Default Order may be granted if the Respondent payor does not attend court on that date.

2. The FRO shall serve a copy of this endorsement and the video (zoom) log-in details upon the Respondent payor by regular mail to his last known address.

3. The FRO shall file an Affidavit of Service in relation to the above prior to the return date.

l. On November 10, 2020 the FRO sent further correspondence to the payor (dated November 6, 2020) by regular mail. That correspondence:

1. advised the payor that his court date was adjourned to December 11, 2020 at 2:00 p.m.;

2. provided the log-in details (i.e. zoom link and telephone information) for the remote attendance;

3. advised “You must attend the hearing on December 11, 2020 at 2pm”.

m. On November 10, 2020 an FRO caseworker swore an Affidavit of Service regarding service of the above letter upon the payor be regular mail. The evidence is unclear as to whether the Affidavit was filed in advance of the December 11, 2020 court date. However, it is understood that a copy of the court’s endorsement dated October 14, 2020 was not included in the package.

n. On November 12, 2020 the payor commenced his Motion to Change in the Hamilton jurisdiction.

o. The FRO became aware that the payor had counsel in the related Motion to Change proceeding through discussions with the recipient’s counsel. On November 19, 2020 counsel for the FRO emailed the payor’s counsel, advising him of the default hearing date of December 11, 2020 at 1:00 p.m. A copy of the correspondence dated November 6, 2020 was attached to the e-mail. Counsel responded via e-mail on the same day advising that he would be attending the hearing on behalf of the payor.

p. On December 10, 2020 counsel for the payor, Mr. Callahan, sent an email to FRO counsel advising that he did not have any court documents regarding the default proceeding, and requesting copies of same so that he could ‘properly represent’ the payor in the proceeding. Mr. Callahan also advised the FRO that the payor had commenced a Motion to Change and attached copies of those documents. Counsel for the FRO provided Mr. Callahan with the court documentation shortly after this request was made and also provided an updated Director’s Statement of Arrears.

q. On December 11, 2020 the default hearing proceeded before Justice C. Lafrenière.

r. On January 8, 2021 the payor filed a Notice of Appeal of the decision of Justice Lafrenière to the Ontario Court of Appeal.

s. On January 19, 2021 the payor commenced this motion.

t. The appeal of this action is in the early stages and has not yet been listed for hearing. Counsel agreed to “de-list” that action if it was scheduled prior to the release of this decision.

[8] The above facts are not disputed by the payor, however he adds that:

1. He received the three mailed letters from the FRO dated March 26, 2020, June 24, 2020 and July 7, 2020.

2. He did not receive the two mailed letters from the FRO dated September 18, 2020 and November 6, 2020. As a result, he was unaware that a hearing would be proceeding on December 11, 2020 and did not provide an Affidavit nor properly instruct his counsel as to how to proceed on his behalf.

3. He is 76 years of age, vulnerable to the COVID-19 virus, and is self-isolating in his home.

4. He has been represented by the same family law counsel since 2011. Mr. Callahan “is intimately familiar with [his] financial position”, and accurately argued before Justice Lafrenière on December 11, 2020 that the payor was not in a financial position to agree to a temporary payment order because he “did not have the money to do so.”

[9] The payor’s address has not changed since the commencement of this enforcement action.

[10] The payor has not filed a Default Dispute or Financial Statement in the FRO proceedings to date. He has however attached a sworn Financial Statement to his Affidavit, as served and filed in support of his Motion to Change.

LAW AND ANALYSIS

Jurisdiction of Court under Rule 25(19) of the Family Law Rules

[11] The primary objective of the Family Law Rules, O. Reg. 114/99, as outlined in r. 2(2), is to deal with cases justly. Rule 2(3) prescribes that dealing with a case justly includes ensuring that the procedure is fair to all parties; saving time and expense; 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.

[12] The Family Law Rules are intended to be a complete procedural code. As the Court of Appeal stated in Frick v. Frick, 2016 ONCA 799, 132 O.R. (3d) 321, at para. 11:

The Family Law Rules were enacted to reflect the fact that litigation in family law matters is different from civil litigation. The family rules provide for active judicial case management, early, complete and ongoing financial disclosure, and an emphasis on resolution, mediation and ways to save time and expense in proportion to the complexity of the issues. They embody a philosophy peculiar to a lawsuit that involves a family.

[13] Rule 25(1) of the Family Law Rules provides as follows:

CHANGING ORDER — FRAUD, MISTAKE, LACK OF NOTICE

(19) The court may, on motion, change an order that,

(a) was obtained by fraud;

(b) contains a mistake;

(c) needs to be changed to deal with a matter that was before the court but that it did not decide;

(d) was made without notice; or

(e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.

[14] The remedies available to the court under r. 25(19) of the Family Law Rules are broad, including jurisdiction to set aside the whole of the Final Order, set aside part of the Final Order, change, vary, suspend, correct or add to the Final Order: Gray v. Gray, 2017 ONCA 100, 137 O.R. (3d) 65 at paras. 26-27, Benarroch v. Abitbol et al, 2018 ONSC 5964 at paras. 28-20.

Appeal v. Rule 25(19) Motion

[15] It is important to clarify at the outset that there is an important distinction between the jurisdiction of the court to remedy a mistake in a Final Order and the jurisdiction of the court to remedy an error in judgment. In my view, Rule 25(19)(b) of the Family Law Rules is intended to permit the court to address inaccuracies in a result in the most streamlined, efficient and cost-effective manner – that is, by simple return to the same level of court, preferably before the same judge, to address the issue. One could easily contemplate this jurisdiction to include amending typographical errors which impact a result (i.e. reversing the terminology of “Applicant” v. “Respondent”), correcting errors in mathematical calculations, etc. However, such jurisdiction to remedy a mistake does not include the authority to consider whether a judge sitting at the same level of court made an analytical error in deciding a case. That is the subject-matter of an appeal.

[16] The distinction is relevant to the circumstances of this motion. Some of the relief sought by the payor in his Notice of Motion, and as raised in oral argument, does not fall within the purview of this level of court. For example, this court cannot be asked to determine (i) whether the December 11, 2020 decision of Justice Lafrenière was made on the basis of facts not in evidence, (ii) whether Justice Lafrenière erred in finding that there was purposeful non-compliance by the payor with the support order, or (iii) whether Justice Lafrenière should have granted the request made by payor’s counsel to adjourn the hearing. These questions must be decided by an appellate court. As such, the only issue for determination raised on this motion that this court may consider is whether the Final Default Order dated December 11, 2020 should be set aside or otherwise modified on the basis that it was made without notice to the payor, or was made with notice and the payor was not present when the order was made because the notice was inadequate, or the payor was unable, for a reason satisfactory to the court, to be present.

Setting Aside a “Default Order”

[17] In the context of this case, the terminology “default order” has two applicable meanings:

a. Under the Family Responsibility and Support Arrears Enforcement Act, (“FRSAEA”) the term default order refers to an order of the court made after a default hearing: FRSAEA, 1996, S.O. 1996, c. 31, s. 41, Family Law Rules, O.Reg. 114/99, rule 2. The December 11, 2020 Order of Justice Lafrenière is a Final Default Order made under these legislative provisions.

b. In circumstances wherein a responding party fails to deliver materials within the time prescribed by the Rules, and a judgment is rendered in his or her absence, this too is frequently referred to a default order or judgment. The Order of Justice Lafrenière could also be considered a default order in the sense that it was made in the absence of a Financial Statement (Form 13) and Default Dispute (Form 30B), required to be filed within 10 days of being served with a Notice of Default Hearing, and in the absence of the payor himself.

[18] The Family Law Rules do not contain parallel rules relating to default proceedings, as found in Rule 19 of the Rules of Civil Procedure, however the leading caselaw in Ontario under Rule 19 has repeatedly been endorsed as applicable to motions to set aside orders made in family court as obtained without the participation of a responding party.

[19] Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, 119 O.R. (3d) 561, at paras. 48-49, sets out the following factors for the Court to consider when determining whether to set aside an order obtained in circumstance of default:

1. Whether the motion to set aside the default judgment was brought promptly following the moving party’s discovery of the default judgment;

2. Whether the moving party has established that there exists a plausible excuse or explanation for the default;

3. Whether the moving party has set forth sufficient evidence to establish that there is an arguable case to present on the merits;

4. The potential prejudice to the moving party should the motion be dismissed, and the potential prejudice to the Respondent should the motion be allowed;

5. The effect of any order the motion judge may make on the overall integrity of the administration of justice.

[20] In Mountain View Farms, the Ontario Court of Appeal explained at para. 50 that “these are not to be treated as rigid rules; the court must consider the particular circumstances of each case to decide whether it is just to relieve the defendant from the consequences of his or her default”.

[21] In assessing whether there is an arguable case on the merits, the motion judge must take a “good hard look at the merits” and analyze whether the moving party has established an arguable case. It is not an error to assess credibility at this stage; more is required than self-serving statements devoid of detailed evidence supporting key assertions: “a self-serving affidavit does not create a triable issue in the absence of detailed facts and supporting evidence”: HSBC Securities (Canada) Inc. v. Firestar Capital Management Corporation, 2008 ONCA 894 at para. 28.

[22] While there is broad discretion and flexibility under the Family Law Rules, and under r. 25(19) in particular, at least one of the five preconditions outlined in Mountain View Farms must be engaged before the broad judicial discretion under r. 25(19) of the Family Law Rules can be invoked: E.S.R. v. R.S.C., 2019 ONCJ 381, at para. 70.

1. Prompt Action

[23] The payor commenced this motion within approximately one month of the December 11, 2020 decision of the court. I accept without issue that the payor moved swiftly in commencing his motion to set aside/vary the Final Default Order.

2. Plausible Excuse or Explanation for the Default

[24] The arguments/explanations of the payor made under this part can be summarized as follows:

a. The payor did not attend the December 11, 2020 hearing because he did not know about it. The FRO failed in its obligation to ensure the payor received proper notice - service by mail was not good enough;

b. The payor did not understand the consequences of not attending;

c. The age, health and circumstances of COVID-19 made it unrealistic for the payor to attend court.

A. Notice

[25] A Notice of Default Hearing under the FRSAEA, is a court document that requires special service, as it is a hearing in which the payor faces an order for possible imprisonment: Family Law Rules, Rule 6(4)3, and 30(2). The payor was served personally with the materials of the FRO in February 2020. He did not file the requisite responding materials within the timelines provided under the Rules.

[26] In rejecting the payor’s request for an adjournment of the hearing (made through his counsel), Justice Lafrenière made a specific finding that “the payor has simply chosen to ignore this default proceeding”. In the Affidavit materials filed by the payor in support of this motion, he challenges this finding by explaining that he did not receive the two letters mailed to him by the FRO sent in September and November 2020.

[27] I do not accept the payor’s position that he did not receive notice, or alternatively that the notice was inadequate for the reasons that follow.

[28] First, the payor’s address did not change. I find it suspect that he received the three letters from the FRO that advised him he need not attend court, but did not receive the two letters from the FRO which advised him that he must attend court. Previous endorsements of this court have noted questionable litigation tactics on the part of the payor, including such findings as “a long-standing pattern of engaging in oppressive and evasive litigation tactics”, “wanton disregard” for “rules, orders and deadlines”, “economic warfare with his ex-spouse”, and the payor’s “willingness to force her to continuously spend money to enforce her rights under the guise of an unproven inability to comply: see for example Berta v. Berta, 2021 ONSC 605 at paras. 26-28, and Berta v. Berta, 2019 ONSC 5987 at para. 23. I note that attached to the payor’s Motion to Change materials (an Exhibit to his Affidavit) is a FRO statement of money owed dated August 26, 2020. He does not explain how he came into possession of a document from the FRO during a period of time that he claims not to have been in communication with them. On a balance of probabilities, in the circumstances of this case, I do not accept the payor’s evidence that he did not receive the mailed notices of the FRO as to upcoming court attendances.

[29] Second, other than one phone call to the courthouse in March 2020 by his counsel, there is no indication in the Affidavit materials filed that the payor made any effort on his own behalf to remain apprised of the status of his litigation. He did not telephone the courthouse, nor did he telephone his FRO caseworker to request any updating information. This laissez faire attitude is further demonstrated by his failure to serve or file a financial statement and default dispute form as required by the Rules at any time following the service of court materials upon him in February 2020.

[30] Third, I do not accept that the COVID-19 health pandemic imposed a new or additional obligation upon the FRO to re-serve their originating process or notice of next steps by special service upon responding parties. I note that the province-wide temporary suspension of limitation periods had no impact upon the circumstances of this case. On the first scheduled hearing date following the suspension of regular court operations, I adjourned the proceedings and directed that the payor be provided with additional notice of the default hearing by regular mail. While it is unfortunate that the FRO did not strictly comply with the terms of my endorsement of October 14, 2020 by enclosing a copy of my endorsement in the materials mailed to the payor, I do not believe this would have had a substantive impact upon the events that followed. The correspondence dated November 6, 2020 accurately advised the payor of the next hearing date and emphasized the mandatory nature of his attendance, Further, the payor claims not to have received the correspondence of the FRO in any event – the content of the envelope was therefore rendered rather moot. I find that the FRO made reasonable efforts to keep the payor informed of the steps of this action. This included not only the written correspondence of the FRO to the payor, but also FRO counsel reaching out to Mr. Callahan when she became aware that he represented the payor in Motion to Change proceedings. Correspondence between counsel confirms that Mr. Callahan was aware of the hearing date by November 19, 2020.

[31] I conclude that the payor received adequate notice of the default hearing.

B. Consequences

[32] The payor advises that he would have attended the default hearing had he understood the potential consequences of the hearing. I do not accept this position.

[33] The Notice of Default served upon the payor included clear and cautionary language advising of the possibility of arrest and imprisonment for a failure to address the alleged default. The payor is no stranger to litigation in the family court – he has been navigating the system almost continuously for a period of ten years. He has had the benefit of the same trusted legal counsel in his family litigation for the entire time period. His counsel was aware of the commencement of default proceedings against the payor as the payor confirmed a discussion with him in March 2020 regarding the administrative adjournment of the first scheduled hearing date due to the COVID-19 health crisis. If the payor was unaware of the ramifications of failing to file materials and of failing to attend court, it was as a result of his own failure to inform himself.

C. Age/Health

[34] I do not accept that the payor’s age or health impacted his ability to attend court. The hearing on December 11, 2020 was held remotely. Both the payor and his counsel were advised of the zoom log-in details. Counsel attended. The payor did not. I note that the payor has subsequently attended two remote court attendances by zoom since that time without difficulty. I am not satisfied that the payor’s age or health contributed to his failure to attend the hearing.

[35] In summary, I do not believe that the Affidavit material filed by the payor on this motion has provided any new plausible information which explains his failure to participate in the proceedings. Rather, the information seems to support Justice Lafrenière’s finding that the payor simply chose to ignore the default proceeding.

3. Arguable Case on the Merits

[36] The arguments advanced by the payor regarding the merits of his claim can be summarized as follows:

1. He believed an agreement in principle had been reached with the recipient which would have reduced the support owing;

2. He has no ability to pay;

3. He is not willfully disregarding the court orders and therefore the term that could potentially result in his imprisonment is inappropriate.

[37] The endorsement of Justice Lafrenière dated December 11, 2020 outlines the applicable presumptions, considerations, and powers of the court pertaining to default hearings as codified under s. 41 of the FRSAEA and Rule 30 of the Family Law Rules. The court found that the arrears of support owing as at November 30, 2020 were $480,169.96, and that the payor had the ability to pay the ongoing support and arrears. Justice Lafrenière accepted the FRO’s request for a period of incarceration of three days for each and every default as appropriate.

[38] The FRO filed an updated statement of money owed at the hearing as per the Rules. The payor has not filed a default dispute on this motion which asserts that those calculations were incorrect. The statement of money owed was presumptively correct when assessed at the default hearing. There is no new or other information available today which provides otherwise – the suggestion that the payor believed an agreement had been reached with the recipient, in the absence of formal documentation of same, is insufficient. There does not appear to be any basis upon which to set aside or vary the finding at the default hearing that the total arrears owing by the payor were $480,159.96 at the time.

[39] With respect to the payor’s ability to pay, he advises that his company’s income has declined and, as a result, his personal income has declined. He has filed a Motion to Change seeking a retroactive reduction of spousal support commencing January 1, 2017. He has attached an expert report which purports to demonstrate far lower levels of income available for support purposes for the 2017, 2018 and 2019 calendar years. It is important to recall that the payor’s support obligation is based upon an imputed income and that he has previously advanced and withdrawn a similar Motion to Change. Further, this court has the benefit of the thorough reasons for decision of the Honourable Mr. Justice M. Kurz dated January 1, 2019 in which the payor’s request for an interim reduction of the spousal support was denied. On that relatively recent motion, Justice Kurz conducted a critical review of expert reports filed in support of the payor’s claim of a reduced income and concluded that he did not raise a prima facie case for reduction of support, and that there would be no hardship to the payor in denying his motion pending trial. The payor thereafter withdrew his claim. The arguments raised by the payor within his second Motion to Change filed appear to be the same, albeit for a slightly modified time period. It is also important to note that following the release of Justice Kurz’ decision, a further $103,088.55 in costs were ordered enforceable as support against the payor. There has been no contribution by the payor towards this amount, despite that this amount is non-variable.

[40] I am not convinced that the payor’s Affidavit as filed, including his Motion to Change materials, supporting Financial Statement, and expert reports, demonstrate that he has an arguable case on the merits – that is, that he has demonstrated an inability to pay for valid reasons. The payor’s Financial Statement, sworn October 28, 2020, is not overly helpful in assessing his financial situation: it includes corporate debt, but “unknown” values for his corporate assets. Overall, the court is left with the impression that this payor is a man of significant net worth who has chosen not to make a single voluntary payment of spousal support since April 1, 2019. Had these materials been before the court on December 11, 2020, it is not likely that the court’s conclusion that the payor had the ability to pay both ongoing support and arrears would have been any different.

[41] Finally, there is no new information contained within the payor’s materials that causes the court to believe that he has made any good faith efforts towards payment. At the default hearing he was offered the opportunity to negotiate a temporary payment arrangement. His counsel declined. When invited on this motion to make submissions as to how this court could vary the terms of payment to make the amounts more manageable to the payor, he declined to offer any alternative. He simply asserted that the Final Default Order of Justice Lafrenière must be set aside in its entirety and a new hearing ordered. This position simply reaffirms the belief that this payor’s intention is to delay any payment of any kind to the recipient for as long as he is permitted to do so. It is unlikely that any court will accept that his argument that he is not willfully disregarding the spousal support order and set aside the order for possible incarceration in the event of future default.

[42] I find that the payor has not set forth sufficient evidence to establish that there is an arguable case to present on the merits.

4. Prejudice

[43] Consideration of prejudice requires the court to balance the interests of the support payor against the interests of the support recipient.

[44] The potential prejudice to the payor in not setting aside the Final Default Order is the risk that he will be incarcerated in the event of future default. As the payor has been found to have an ability to pay, any harm resulting from incarceration would be his own doing - resulting from a refusal to pay rather than an inability to pay: McMurter v. Ontario (Director, Family Responsibility Office), 2017 ONSC 3662 at para. 36. A committal order is intended to induce compliance with the payment terms of an order, and “the prospect of imprisonment hopefully focuses the payor’s mind on the importance of making the required payments: Fisher v. The Director of the Family Responsibility Office, [2008] O.R. (3d) 721 at para. 25. A review of the lengthy court record, including consideration of the significant costs awards which form a portion of the arrears owing, suggests that it is unlikely that enforcement of the Final Default Order will result in an overpayment of support to the recipient that could not be recovered.

[45] The potential prejudice to the recipient if the court’s order is set aside is further delay in enforcement of an order where the payor has not made a single voluntary payment of support in almost two years. The recipient’s need for spousal support was considered in the making of the support award. One can only assume that the payor’s non-payment of support would have a significant impact upon this recipient spouse, especially in the face of yet another round of litigation (motion to change) commenced by the payor and outstanding costs awards of over $100,000.00 owing to her.

[46] I find that a greater prejudice would befall the support recipient than the payor if the Final Default Order were to be set aside and a new hearing ordered, as requested.

5. Administration of Justice

[47] Support orders have special status in law. Strong public policy grounds exist for the enforcement of support orders given the legislative and jurisprudential recognition of the need to ensure payment of support: Taylor v. Taylor, 2002 44981 (ONCA) at paras. 26, 31, and 40. At minimum the effective administration of justice requires the court to promote compliance with its own orders. Permitting further delay in the enforcement of our appellate court’s 2017 order for payment of spousal support in this action would have a negative impact upon the effective administration of justice to these parties, and on public perception as to the importance of respecting the rules and procedures of the court, participating fully in court proceedings, supporting dependent family members, and complying with orders of the court. The integrity of the administration of justice weighs in favour of leaving the terms of the Final Default Order undisturbed.

CONCLUSION

[48] On the basis of the above, there shall be an order to go as follows:

1. The payor’s request to set aside, vary or amend the Final Default Order of the Justice C. Lafrenière dated December 11, 2020 is dismissed.

2. If costs are in issue, the party claiming costs shall serve and file written submissions not exceeding three pages in length on or before May 10, 2021, and the responding party shall serve and file a written response not exceeding three pages in length on or before May 31, 2021. No reply submissions shall be filed unless requested by the court. If no cost submissions are filed on or before May 10, 2021 there shall be no costs payable.

Bale J.

Date: April 12, 2021

[^1]: The payor asserts that he was personally served on February 20, 2020. Nothing significant turns on this issue.

[^2]: Alternatively, if the Respondent were served on February 20, 2020, it is also apparent that the documents were not filed on or before March 2, 2020.