COURT FILE NO.: FS-13-360-01
DATE: 2021 07 28
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: RICHARD NEIL MEREDITH
- and - JULIE LOUISE MEREDITH
BEFORE: TRIMBLE J.
COUNSEL: M. Purves-Smith for the Moving Party/Respondent, michael@purvessmithlaw.com Self-Represented Applicant/Responding party
HEARD: July 19, 2021, via Zoom Video-conference
ENDORSEMENT
The Motion
[1] The respondent mother brought a motion to change the final order of Herold J., dated 31 May 2016 in which the applicant father was ordered to pay her child support for two children at $680.00 a month and spousal support of $610.00 a month.
[2] Mother now moves for summary judgement fixing child and spousal support arrears, ongoing child and spousal support, and section 7 expenses to date. As part of her submission for fixing past and future support, mother asked that I impute income to father. Father opposes.
Result
[3] The motion for summary judgement is dismissed. It would involve granting partial summary judgement only. Granting partial summary judgement would leave the risk open of inconsistent findings between findings made on this motion and at the trial of the remaining issues that require a trial.
[4] I have resolved some issues, below, and identified issues to be tried and set a procedure for that trial.
The Position of The Parties
[5] The moving respondent says that this is a perfect case for summary judgement. Between father’s failure to provide financial disclosure and what little he has produced, it is proper and fitting that father’s obligation to pay past and future child and spousal support and Section 7 expenses should be determined by way of summary judgement. All the evidence is before the court. Father has no further evidence to adduce, a fact he confirmed in submissions. The court has all it needs to know to render summary judgement.
[6] Father is self represented. I have given his pleadings, his affidavit, and is submissions the widest possible latitude. In summary, while he wants to resolve matters as quickly as possible so that everybody can move on with their lives, he does want the matter to be tried.
The Law
[7] Rule 16 of the Family Law Rules governs motions for summary judgment for a final order on all or part of any claim or defence presented in a case, without need of a trial. Under subrules 16(4) and (6), the onus is on the moving party to set out the specific facts to prove that there is no genuine issue requiring a trial and only then, if there is no genuine issue requiring a trial, must the court grant summary judgment.
[8] In the leading case of Hryniak v. Maudlin, 2014 SCC 7, beginning at para. 49, the Supreme Court of Canada said there will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[9] As the Supreme Court said in Hryniak v. Mauldin, “the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the Court confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.” However, a process that does not give the judge confidence in conclusions to be drawn can never be a proportionate way to resolve the dispute (see: Hryniak v. Mauldin, para. 50).
[10] Once the moving party has met its burden to show that there is no genuine issue requiring a trial, the onus shifts to responding party who must do more than rest on mere allegations or denials. He or she must set out in his or her evidence specific facts showing that there is a genuine issue requiring a trial. In short, each party must put his and her best foot forward regarding the existence or non-existence of material facts that must be tried (see: Karlovic v. Karlovic, 2018 ONSC 4233, para. 39).
[11] The absence or deficiency of responding material is not sufficient to grant summary judgment by default. The court must still ensure that the evidence submitted by the party seeking summary judgment is sufficiently comprehensive and persuasive to ensure that the court can do justice to the resolution of the issue (see: Simpson v. Cuff, 2019 ONSC 2856, at para. 22, citing Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316).
[12] It is not an answer to a motion for summary judgment to say that further evidence may be available at trial, either. The court is entitled to assume that all available evidence has been put before the court in some form. The responding party must put his or her best foot forward (“lead trump”) on a motion for summary judgment, and cannot rest on allegations that he hopes to prove later, at trial (see: Simcoe Muskoka Child, Youth and Family Services v. L.V., 2019 ONSC 1208 at para 11; Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200; aff’d 2014 ONSC 878; leave to appeal denied 2015 CanLII 39803 (SCC)).
[13] Courts must be wary of granting partial summary judgement, granting it only in rare circumstances where the court is satisfied that a) there is no possibility of inconsistent findings being made between that part of the action decided by way of summary judgement and the other parts of the action decided through trial, and b) that partial summary judgement would, in fact, lead to a fair, faster and more proportional resolution of the dispute. Too often, summary judgement is brought as a tactic to increase cost and delay matters (see: Butera v. Chown, Cairns LLP, 2017 ONCA 783 at para. 30 ff; and Canadian Imperial Bank of Commerce v. Deloitte & Touche, (2016 ONCA 922)).
[14] I must consider the principles of summary judgment in the context of paragraphs 11 through 16 of the Court of Appeal’s decision in Roberts v. Roberts, 2015 ONCA 450 in which the Court of Appeal said that the most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing. The failure to make complete and early disclosure impedes the progress of the action, causes delay, and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time is spent, and the final adjudication is stalled. Financial disclosure is automatic. It should not require court orders – let alone two – to obtain only part production.
Analysis
[15] What follows are the facts in this matter, my findings of fact where I could make them, and my analysis of what issues must continue to trial.
1. The Marriage
[16] The parties were married on 14 September 2002, separated on 1 June 2012. They have two children: Evan Thomas Meredith (DOB 1 September 2007 – 13 years old) and Tia Louise Meredith (DOB September 20, 2009 – 11 years).
2. The Final Order
[17] On 31 May 2016, Herold J., made a final order on consent that father pay mother child support of $680.00 a month and spousal support of $610.00 per month, both effective 1 June 2016.
[18] The support ordered at the time was below what father would have paid based on the parties’ 2016 incomes ($79,084.00 for father and $7,865.67 for mother). Mother says this is because they had an arrangement whereby she accepted less in support provided she could take the whole of the child tax benefit, as evidenced by a 27 June 2013 letter between counsel.
3. The Child Tax Benefits
[19] By letter dated 20 June 2019, Canada Revenue Agency (CRA) wrote and advised that it had reassessed mother’s entitlement to the Canada and the Ontario child benefits. The CRA determined that the child tax benefit should be shared between the parties. It reduced the monthly ongoing child tax benefit to mother. Further, it ordered mother to repay $19,254.24 in child tax benefits. Father’s bank statements indicate that on 20 May 2020, he received from the Government of Canada a lump sum payment of $11,077.47 which mother believes (and I find) is a payment to him of the child tax benefit from date of separation to June 2019.
[20] Father says that the agreement with respect to his paying less in support in exchange for giving mother the complete benefit of the child tax benefit was only an agreement with respect to an interim support order in 2013. It was not part of the 2016 consent final order. He has no documents to support this. However, he does not deny that until the CRA reassessed the child tax benefits, mother claimed and received 100% of the child tax benefits.
[21] On the evidence before me, I cannot determine whether, when Herold J., signed the final consent order in 2016, there was an agreement between the parties whereby father would pay mother less than table child support and lower spousal support in exchange for mother taking the full child tax benefit.
[22] There was an issue at the motion that father intentionally changed the information he reported to the government in order to deprive mother of the child tax benefit. Ultimately, this is of no moment. The parties agree that the change by the CRA would have happened in any event had the CRA reviewed the situation.
[23] There is no doubt that father paid less in spousal and child support than he ought to have based on the couples’ 2016 incomes ($74,084.00 for father and $7,865.57 for mother). However, since I cannot determine whether there was an agreement between the parties as to who took the child tax benefit, I cannot make any decision regarding what support ought to have been paid from the date of separation to the date that the CRA reassessed the child tax benefit payments.
4. Disclosure
[24] Paragraph 12 of Harold J.’s, 2016 final order provided that father would make disclosure of updated income information within 30 days of the anniversary of the order. He did not do so despite requests.
[25] In February 2019, mother retained a lawyer. In response to the lawyer’s request for full disclosure since the order, father provided only his 2017 CRA Notice of Assessment. It indicated that he was working at GN Johnson Equipment, his employer during the marriage. Father also conducted a scrap metal side business on a cash basis.
[26] On 31 August 2020, the parties appeared before McGee J., at a case conference. She ordered as follows:
(a) Father was given leave to late file his Response to the Motion to Change to 21 September 2020 along with a current financial statement including Notices of Assessment for 2016, 2017, 2018, and 2019.
(b) He was ordered to provide with his financial statement a list of all his bank accounts, credit cards, lines of credit, RRSPs, operating since June 1, 2016, and related statements.
(c) He was to serve by 21 September 2020 all his full T1 income tax returns for the same years and any other disclosure he was to rely on.
(d) If father did not serve and file his response to the motion to change as ordered, then mother could proceed to obtain an order for an uncontested trial without further notice to father.
(e) If he did serve his response to the motion to change as ordered, father was required to obtain from his employer a statement of remuneration for calendar year 2019 and 2020.
[27] Father did not comply with the order.
[28] Mother brought a motion to place father in default. Father agreed to comply with the order and pay $1,000.00 in costs. Shaw J. signed that order on 1 December 2020.
[29] In early 2021, father provided an incomplete financial statement in which he failed to list all the accounts ordered. Mother brought another motion. By order of 16 February 2021, Peterson J. ordered father to provide all bank statements, credit card information, and up-to-date summary of accounts from CIBC and his income and LTD benefits beginning 1 January 2017 to present.
[30] Father produced a sworn Financial Statement dated 21 September 2020 wherein he stated his only income was $2,165.00 per month in CERB payments. He did not mention the scrap metal business. He did not fully comply with the production orders in most respects.
[31] At a case conference on 6 April 2021 McGee J. noted that production was not complete notwithstanding two motions and orders and ordered as follows:
(a) Father may late file his Response to Motion to Change, an up-to-date Financial Statement, and his last three years of notices of assessment by 9 April 2021.
(b) If father complied with these filing deadlines the parties could have a long motion to vary child support from 2016 to the present and spousal support based on the new child tax benefit situation.
(c) If father did not comply with these filing deadlines, mother may file, to McGee J.’s attention, a 14B in-writing motion for an uncontested trial in this matter. Father is not entitled to notice of that motion nor may he participate although he remained obliged to comply with the disclosure order of Peterson J.
(d) If father filed his Response and financial statement but continued in breach of the disclosure order, then adverse inferences may be drawn with respect to his income by the judge hearing the motion.
(e) Costs of the conference before McGee J. were reserved to the judge hearing the motion.
[32] Father did not comply with McGee J.’s order. On 11 April 2021, two days past the deadline set by McGee J., he served and un-signed financial statement indicating that while he was employed with GN Johnston Co. Limited, he was on long-term disability of $3,896.00 per month, and did not mention his scrap metal business.
[33] Mother did not move for an uncontested trial as she could have done given father’s failure to file in accordance with McGee J.’s endorsement.
[34] At some point shortly after 16 April 2021, father filed his response and sworn financial statement, although it did not comply with outstanding orders.
[35] Father has had ample time to make full production. His failure to make the production required is inexcusable and contumelious.
[36] He said at the motion that all his records were surrendered to the Trustee in Bankruptcy in 2018 when he declared personal bankruptcy. This may be. His records ought to have been returned to him when he was discharged from bankruptcy.
[37] Further, father has produced no evidence that he attempted to obtain any financial records from the Trustee or the CRA. He has not explained his failure to make disclosure notwithstanding orders to do so by Justice Herold, Shaw, Petersen, and two by Justice McGee.
[38] There is a time to say “enough is enough”. With respect to father’s disclosure, that time has come. He shall not be able to make further disclosure without leave of the Court.
5. Income
[39] The evidence on this motion indicates that the incomes that the parties declared are as follows:
| Year | Applicant | Respondent |
|---|---|---|
| 2017 | $79,084.00 | $14,275.00 |
| 2018 | $75,556.73[^1] | $19,907.00 |
| 2019 | $83,877.95 | $15,845.00 |
| 2020 | $64,961.00 | $24,809.00 |
| 2021 | $49,792.56[^2] |
6. Imputed income to Father
[41] Mother asks that I impute to father in 2018 and 2020 the same amounts as his income in 2017 ($79,084.00) and 2019 ($83,856.57) respectively. She says this because:
(a) I should draw this inference from his failure to make disclosure as he was ordered to make.
(b) He is able to work and has no justification for reduced work and income.
[42] Given my ruling about father’s disclosure, I am in a position to impute income, but only in part.
[43] Father’s employer’s Long Term Disability insurer has declared him disabled from his own job effective 22 January 2021. There is no evidence as to the cause of the disability or whether it was physical or psychological. There is no evidence as to what father or his doctor reported to the insurer about the disability or what father was doing to earn income. For instance, did father report to the insurer that he carried on a scrap metal business in addition to his job at Johnson?
[44] Based on the absence of evidence from father, and the fact that he admits he still carries on his scrap metal business, I impute to father total income of $79,084.00 for 2018 and $83,856.57 in total income for 2020. He continued to work for GN Johnson and to do his scrap metal business. He produced no evidence of change in either of his two jobs.
[45] I cannot impute income to father since 22 January 2021. His disability appears too recent. It was only confirmed this calendar year. What he reported to the insurer regarding his disability and his employment is uncertain.
[46] This issue requires a trial.
[47] Earlier disclosure orders did not address the issue of father’s disability. Therefore, by 31 August 2021, father will write to a) his employer and b) the disability insurer (copying both letters to mother’s counsel) and request a full copy of a file concerning father’s current alleged disability. He will also write to Canada Pension Plan (copying the letter to mother’s counsel) and obtain a complete copy of its file related to father’s application for CPP Disability Benefits arising from his current disability. He will pay any fees relevant to that request, and provide a full copy to mother of what he receives in response from CPP, the employer, and the insurer.
[48] Father, both in his Answer and in his affidavit filed on this motion asks the Court to impute $35,000.00 in income to mother. He did not file a notice of Cross-Motion, however.
[49] This issue also requires a trial.
7. Parenting time
[50] Herold J.’s order provides for parenting time as follows:
Week One: The Children shall be with mother, Julie Louise Meredith, until Wednesday at 5:00 p.m., when father, Richard Neil Meredith, shall pick the Children up from her residence. The Children shall be with Applicant, Richard Neil Meredith, from Wednesday at 5:00 p.m. until Monday morning of the following week (Week Two) at 7:30 a.m., when father, Richard Neil Meredith, shall deliver the children to the home of mother, Julie Louise Meredith.
(b) Week Two: The Children shall be with mother, Julie Louise Meredith, from Monday at 7:30 a.m. until Wednesday at 5:00 p.m., when father, Richard Neil Meredith, shall pick the Children up from her residence. The Children shall be with Applicant, Richard Neil Meredith, from Wednesday at 5:00 p.m. until Friday at 7:30 a.m., when father, Richard Neil Meredith, shall deliver the children to the home of mother, Julie Louise Meredith. Thereafter, the Children shall be with mother, Julie Louise Meredith, until the following (Week One) Wednesday at 5:00 p.m.
[51] In his Answer, father seeks week about time with the children.
[52] This issue also requires a trial.
Order
[53] I cannot grant summary judgment in this matter at this time. I am able to make certain findings of fact based on rulings I made with respect to father’s history of non disclosure and impute income to father from 2017 to 2020. I find that father’s annual income for support purposes are:
2017 $79,084.00 2018 $79,084.00 2019 $83,856.57 2020 $83,856.57
[54] Under Rule 20.04 (2.1 and 2.2) I have ordered, above, that father make production of certain records pertaining to his disability.
[55] The following issues require a trial:
(a) Was there an agreement that spousal and child support father paid to mother would be reduced in Herold J.’s final order in exchange for mother receiving the complete Child Tax Credit. If so, what is the retroactive support that ought to have been paid between Herold J.’s order and the date that CRA recalculated the Child Tax Benefit on the basis of shared custody of the children?
(b) Ought the Court to impute income to father since 22 January 2021, and if so, in what amount?
(c) Ought the Court to impute income to mother, and if so, in what amount and over what period.
(d) Based on the indecisions with respect to imputation of income, what is the distribution of s. 7 expenses between the parties?
(e) Ought there to be change in residential time with the children to week about time?
The Trial of the Remaining Issues.
[56] Under Rule 20.04 (2.1-2.2) I order that the five issues I identified above shall be subject of a trial. It should take no more than three days. That trial is to be set by the Trial Coordinator in Guelph. I remain seized. Those three trial days shall take place not earlier than 1 December 2021 to permit father to obtain the records he is ordered herein to obtain.
[57] Mother’s solicitor may convene a case conference after 1 December 2021 to determine the trial procedure.
Costs
[58] If the parties cannot agree as to who pays whom costs and in what amount for this motion, I will decide the issues on written submissions which are limited to 3 double-spaced, typed pages, excluding offers to settle and bills of costs. Father’s are to be served and filed by 4 pm, 6 August 2021 and mother’s by 4 pm, 20 August 2021. There will be no right of reply.
TRIMBLE J.
Date: July 28, 2021
COURT FILE NO.: FS-13-360-01
DATE: 2021 07 28
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
RICHARD NEIL MEREDITH
- and - JULIE LOUISE MEREDITH
ENDORSEMENT
Trimble J.
Date: July 28, 2021
[^1]: this amount comes from father. His CRA assessment for 2018 sent to the trustee in bankruptcy indicates the total income, line 150, $54,381. [^2]: this is based on monthly LTD income of $3,896 and child tax benefits of $253.38.