COURT FILE NO.: 5152/16-1

DATE: 2021 01 12

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

JENNIFER SINCLAIR

Applicant

• and -

JOHN SINCLAIR

Respondent

Elli M. Cohen, for the Applicant

Self-Represented

HEARD: July 17, 2019

MOTION TO CHANGE REASONS

SHAW J.

1The applicant commenced a Motion to Change the final order of Justice Conlon dated October 17, 2017 to include payment for retroactive child support.

2On January 24, 2020 Doi J. scheduled the matter to be heard on April 16, 2020. Due to COVID-19 and the suspension of the Superior Court of Justice’s regular operations, the matter did not proceed, and it was scheduled for a hearing on August 27, 2020. The matter did not proceed on that day as Kumaranayake J. was to hear the matter and she had conducted the settlement conference. Accordingly, the matter was adjourned to December 3, 2020.

3The respondent was before Kumaranayake J. on August 27, 2020. Pursuant to her endorsement, the hearing was peremptory on the parties and she confirmed that the respondent understood that the matter would be proceeding on December 3, 2020. She ordered the respondent to serve and file a factum and book of authorities by November 12, 2020. He failed to do so.

4The respondent did not appear before me on December 3, 2020. The hearing was conducted by zoom and he was provided with the information for the zoom hearing at the email address he provided to the court; johnwsinclaircon@outlook.com.

5The respondent opposes the relief sought by the applicant. In addition, in his Response to Motion to Change, he seeks an order for sole custody of the children and changes to the parenting schedule. He also seeks an order to vary the final property settlement which included his release of his interest in the former matrimonial home to the applicant.

6As the respondent did not appear today, his motion to change is dismissed. Furthermore, I am unaware of any authority for the court to overturn a property settlement by way of a motion to change.

7The final order was based on terms of an agreement reached by the parties. Both were represented by counsel. It was a comprehensive settlement dealing with parenting, support and equalization of net family property.

8At the time of the negotiated settlement, the respondent was in arrears of child support he owed to the applicant. As part of the settlement, the applicant purchased the respondent’s interest in the matrimonial home. According to the settlement, the amount of child support the respondent owed, was offset by the amount the applicant owed to him to purchase his interest in the home.

9The parties relied on the financial disclosure they provided to the other. In that disclosure, the respondent failed to disclose a debt he owed to Watson’s Home Hardware store in the sum of $29,908.40. The applicant was aware that the respondent owed the store a debt of $14,437.00 as at June 7, 2017. It was not listed in his financial statement that he swore on October 5, 2017 so she concluded the debt had been paid. In fact, the debt was not paid, and Watson Home Hardware obtained a judgement from Small Claims Court and then registered a lien on title to the matrimonial home for the debt. The applicant was not informed of this by the respondent and he never disclosed the judgement to her. It can be inferred that the respondent would have been aware of the judgment and that a writ of execution had been issued in connection with the judgment.

10According to the order, the arrears of child support owing to the applicant by the respondent was $36,493.89 and the equalization payment the applicant owed to the respondent was $35,249.39. These amounts were offset against the other.

11The payment the applicant owed to the respondent for the home was based on the fair market value of the home, less the outstanding mortgage, lines of credits and debts registered on title and dividing that in half. This did not include the debt of $29,908.40 that the applicant became aware of only after final agreement was reached and during the process of transferring title to the property into her name alone.

12In order to complete the transfer of title, the applicant had to pay the debt in full. She did this by securing a loan. The interest paid on that loan was $2,915.62. Accordingly, the total amount the applicant paid for the respondent’s debt was $32,824.02.

13Despite requests, the respondent refused to pay the debt or reimburse the applicant for this loan.

14Had the applicant been aware of this debt, the payment she owed to the respondent for his interest in the home would have been reduced by that amount. As a result, the amount owing by the respondent for the arrears of child support would not have been offset against the amount the applicant owed for the equalization payment. In essence, the applicant received less child support for the children when she agreed to offset the two amounts.

15Section 17 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) sets out the court’s authority to vary a final order for support. The court must be satisfied that a change of circumstances has occurred since the making of the order. When making a variation in child support, the court shall do so in accordance with the applicable child support guidelines.

16Section 14 of the Federal Child Support Guidelines, SOR/97-175 identifies what constitutes a change of circumstances for the purpose of the Divorce Act. One of these factors is whether the change in circumstances would result in a different child support order.

17In my view, had the respondent disclosed the debt, he would have been ordered to pay the bulk of the child support of arrears he owed. Had the applicant been aware of the debt and the lien on title, she would not have agreed that the arrears of child support were not owing to her.

18In addition to the debt and the interest the applicant paid on the loan to pay that debt, there are also arrears of s. 7 expenses owing by the respondent in the sum of $1,603.39. These sums total $34,454.41.

19Accordingly, the final order is varied such that the respondent owes to the applicant arrears of child support of $34,454.41. These arrears shall be paid by the respondent at the rate of $250.00 per month until such time as all arrears are extinguished. This monthly payment is in addition the respondent’s ongoing child support owing to the applicant in the sum of $959.00 per month which is based on the respondent earning $50,000 per annum.

20The applicant is entitled to her costs of this application. She served an offer to settle at the commencement of the application. That offer was to settle as per the terms set out herein. The applicant has incurred costs of $19,539 which is inclusive of disbursements. The costs incurred also included the fees incurred by the applicant in responding to the respondent’s motion to change. Given the applicant’s offer to settle made at the outset of her application and the factors set out in Rules 18 and 24 of the Family Law Rules, I fix the costs payable to the applicant by the respondent at $15,000, inclusive of disbursements and HST. This amount shall be collected by the Family Responsibility Office.

L. Shaw J.