Court File and Parties

COURT FILE NO.: Guelph FS-16-198-0001 DATE: 2021-10-27 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Joan Thomson, Applicant AND: Thomas Victor Delmoro, Respondent

BEFORE: Conlan J.

COUNSEL: Gerald Punnett, for the Applicant Colin Thurston, for the Respondent

ENDORSEMENT ON MOTION FOR SUMMARY JUDGMENT

I. Introduction

[1] The Respondent father moves to dismiss, summarily, the Applicant mother’s Motion to Change the Final Order of Justice Lemon, made after trial, dated March 12, 2019. At the trial, the mother failed to attend and presented no evidence, though she had her counsel present to make submissions.

[2] The said Final Order required the mother to pay child support (for one child) of $556.00 monthly based on an imputed income of $60,000.00.

[3] The Motion to Change initiated by the mother requests that the child support “be adjusted retroactively in accordance with the Applicant’s income beginning March 1, 2018”, and that “[a]ll arrears shall be rescinded”.

[4] The Motion to Change is defective in that it refers to the wrong Order to be varied. It refers, at the top of page 3, to an interim without prejudice Order. It ought to have referred to the said Final Order, but that by itself is no reason to dismiss it. The Motion to Change should be amended, however. The Motion to Change is further defective in that it seeks to vary a Final Order on an effective date that precedes the date of the Final Order. That is a further reason for amendment to the originating process.

II. Decision

[5] In my view, the father’s motion must be dismissed. Despite Mr. Thurston’s able submissions, I am not satisfied on balance that there is no genuine issue requiring a trial – Rule 16(6) of the Family Law Rules.

[6] The mother is arguing that the $60,000.00 imputed income figure decided by Justice Lemon is no longer appropriate. She must, however, go beyond establishing that her subsequent declared income is other than $60,000.00. She must address why that figure had to be imputed in the first place. She must present evidence of changed circumstances which establish that either (i) her representations as to her income should now be accepted, even if they were not before, or (ii) even if income should still be imputed, changed circumstances suggest that a different amount is more appropriate than the $60,000.00 figure. Trang v. Trang, 2013 ONSC 1980, at paragraph 52.

[7] Lemon J. used the figure of $60,000.00 because the mother refused to “play ball”. She did not bother to show up for the trial. She presented no evidence. She “refused to provide any information to explain her financial circumstances” existing at the time of the trial. So, His Honour imputed to her an income that was commensurate with what she earned as an insurance broker between 2010 and 2013, the most recent period for which reliable records were available for review. Thomson v. Delmoro, 2019 ONSC 1267, at paragraphs 23 and 40.

[8] The mother is now “playing ball”. Maybe off the plate, but that’s for the trial umpire to decide. She has provided evidence about her unemployment and the loss of her insurance broker’s license. She has provided evidence about the loss of her Driver’s Licence. None of that evidence was before Justice Lemon. All of that evidence is relevant to the considerations outlined by the Justice in Trang, supra. All of that evidence is, at least, sufficient to give rise to a genuine issue requiring a trial.

[9] I simply disagree, with respect, that the mother’s pleading and evidence disclose no material change in circumstances that is capable of grounding her Motion to Change.

III. Costs

[10] Normally, as the successful party, the mother would be awarded some costs. Not here, though. I order no costs, in reliance upon 24(4) of the Family Law Rules. This mother was effectively a delinquent in the former proceeding. A wrongdoer in terms of supporting (not supporting) the child financially. An errant litigant in terms of respect (disrespect) for the trial process. Her own conduct gave rise to the within motion, and although successful in fending it off she will not be rewarded with any costs.

(Original signed by)

Conlan J.

Date: October 27, 2021