COURT FILE NO.: FS-14-79976
DATE: 2021 12 20
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Tracey Elaine Field v Adrian Colin Charles Field
BEFORE: FOWLER BYRNE J.
COUNSEL: Shana Maiato, for the Applicant Carol Struthers, for the Respondent Michelle Douglas-Cummings, for the Family Responsibility Office
HEARD: October 6, 2021, by video-conference
E N D O R S E M E N T
[1] There are two motions before me. The first motion is brought by the Respondent Father, Adrian Colin Charles Field (“the Father”), wherein he seeks the following:
a) An order staying a previous child support and spousal support order of December 15, 2011 and staying the enforcement of same; and,
b) A new child support order based on his annual income of $185,000.
[2] The Applicant Mother, Tracey Elaine Field, seeks the following:
a) An order that the Father comply with paragraph 10 the order dated December 15, 2011, which directs financial disclosure for 2011 to 2019;
b) Proof of prior disclosure;
c) Disclosure of 2020 income;
d) Production of last Record of Employment;
e) An order prohibiting the Father from bringing any further motions in the litigation until which time he complies with the December 15, 2011, order;
f) A non-depletion order of the Father’s RRSP with Manulife; and,
g) Child support from 2017, based on the Father’s disclosed income for those years.
I. Background
[3] The parties commenced cohabiting in September 2001. They married on September 7, 2002, and separated in 2009 or 2010, depending on which party’s evidence is accepted. There are two children of the marriage, R.F. who is now 19 years old and is pursuing post-secondary education, and A.F. who is now 16 years old and in high school.
[4] This Application was started in 2010 in Barrie, Ontario. It is agreed that the children always resided primarily with the Mother following the separation. Prior to 2020, the only order in place was the temporary Order of Justice Eberhard dated December 15, 2011, wherein parenting time was set out and various other orders were made which included:
a) Commencing December 8, 2011, the Father was to pay child support for two children in the sum of $1,737 per month (or $401.15 per week);
b) Commencing December 8, 2021, the Father was to pay spousal support of $1,645 per month (or $380 per week);
c) The support payable was based on the Father’s declared annual income of $128,000, and support payments could be reviewed upon the request of either party after the Father provided proof of his current employment and income; and,
d) There was to be a yearly exchange of income information within 30 days of the anniversary of the Order, in accordance with s. 24.1 of the Child Support Guidelines.
(“Eberhard Order”)
[5] On April 13, 2021, Justice Andre made several orders, pending the return of these motions, which include:
a) Commencing May 1, 2021, on a without prejudice basis, the Father was to pay child support to the Mother for two children in the sum of $2,572 per month, based on his income of $185,000;
b) Commencing May 1, 2021, on a without prejudice basis, the Father was to pay spousal support to the Mother in the weekly sum of $380, based on his income of $185,000;
c) The Father’s RRSP with Manulife Financial was to be preserved pending adjudication of these issues; and,
d) The Eberhard Order and enforcement of ongoing support or arrears as per the Eberhard Order is otherwise stayed pending the adjudication of this motion.
(“Andre Order”)
II. Issues
[6] The issues of disclosure were resolved prior to the hearing of this matter. The Father also agrees that he has ongoing child support obligations, but the parties dispute the arrears. Accordingly, the following issues are to be determined on these motions:
a) What ongoing child support should the Father be paying pending trial?
b) Is the Father entitled to a stay of his child and spousal support obligations under the Eberhard Order or a stay of the enforcement of these obligations under the Eberhard Order pending trial?
c) If the stay is lifted, should there be any retroactive adjustment of prior child support or spousal support?
d) Is the Mother entitled to a preservation order?
III. Ongoing Child Support
[7] Since these motions were brought, the Father has provided disclosure of his income back to 2012. Accordingly, the Mother has a right to an adjustment with respect to ongoing child support based on the Father’s most recent income.
[8] As of April 13, 2021, the Father was to pay, on a without prejudice basis, child support in the sum of $2,572 per month, based on his estimated annual salary of $185,000 as shown in an employment contract. Upon further disclosure, it appears the Father actually earned $194,100 in 2020 as evidenced by his Notice of Assessment for 2020. Accordingly, his child support obligations should increase to $2,606 per month, commencing January 1, 2021.
IV. Stay of the Eberhard Order
[9] The Eberhard Order remains in place and was enforceable until which time the Andre Order was made staying the order and its enforcement, pending the return of this motion.
[10] Generally, when a party is seeking a variation or stay of their support obligations, it is usually a final order they seek to vary and that is usually done by way of a Motion to Change. Then, within that proceeding, a motion can be brought for an interim variation or stay pending the final determination of the issue.
[11] This situation is a bit different in that the Father is seeking a stay of an interim order, not a final order, that was obtained in an Application that was started over 10 years ago. In his Answer dated May 18, 2010, the Father disputes the Mother’s entitlement to support. After the exchange of pleadings, the interim Eberhard Order was made, which was the result of the Minutes of Settlement. There was no indication that this order was made without prejudice.
[12] Fast forward ten years. Nothing has been done by either party to advance this litigation and determine the issues of spousal support and child support on a final basis.
[13] The Eberhard Order remained in place though. The Father followed it with respect to spousal support until he unilaterally decided to cease all spousal support payments on February 2014, for reasons discussed below. The Father also complied with his child support obligations pursuant to the Eberhard Order until the eldest child of the marriage R.F., turned eighteen in August 2020, at which time he unilaterally reduced his payments to what he thought was appropriate for the other remaining child, J.F. Once the Father received verification of R.F.’s enrollment in post-secondary education, his recommenced paying for two children.
[14] After a long period of approximately six years of no communication between the Mother and the Father, between 2014 and 2020, the Mother now knows where the Father works and wants to collect her arrears of spousal support. She also seeks a retroactive adjustment of her child support based on the income disclosure from 2012 which has been provided by the Father during this litigation.
[15] Originally, the Mother sought child and spousal support under both the Divorce Act and the Family Law Act. It is not specified what statute was relied on in the Eberhard Order.
[16] The authority of this court to vary or suspend a support order made under Part III of the Family Law Act, can be found in s. 37(1). In the case of child support, the court must be satisfied that there has been a change in circumstances as defined by the Child Support Guidelines: s. 37(2.1). In the case of a spousal support order, the court must be satisfied of a material change in circumstances for either party: s. 37(2). This applies to both final and temporary orders.
[17] The authority to vary or suspend the Eberhard Order under the Divorce Act can be found in s. 17(1), which applies to both temporary and final orders. Again, for variation or suspension of child support orders, the court must look for a change in circumstances as provided for in the Child Support Guidelines: s. 17(4). If a party seeks to vary or suspend a spousal support order, the court must be satisfied that a change in the condition, means, needs, or other circumstances of either spouse has occurred since the last support order: s. 17(4.1).
[18] When a party seeks a stay of an order or its enforcement, the order should only be granted if the support payor has demonstrated a prima facie case on the merits of the variation application and has come to court with “clean hands:” Garneau v. Director, Family Responsibility Office, et al, 2010 ONSC 2804, at para. 37; Brown v Brown, 2020 ONSC 7085, at para. 24. Justice Kurz has interpreted this to mean that a strong prima facie case is required and has added the additional requirements that the paying party demonstrate a clear case of hardship and urgency: Berta v Berta, 2019 ONSC 505, at para. 39-40.
[19] Given that we are not seeking to stay a final order, but rather an interim order, it would be appropriate to consider the law related to the interim variation of interim orders. In essence, the stay sought by the Father is an interim variation of an interim order, before a trial of the spousal support issue.
[20] In general, the courts are reluctant to vary an interim spousal support order. As indicated by Justice Chappel in Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689, at para. 20:
The test that applies on a Motion to vary a temporary spousal support order has evolved within the parameters of the general principle that parties in matrimonial proceedings should be encouraged to advance their case to trial as soon as possible. Using this foundational principle, the Ontario Court of Appeal determined in Lipson v. Lipson [1972] 470 (ON CA), [1972] 3 O.R. 403-404] that proceedings to vary interim support orders should not be encouraged. It held that in order to succeed on a Motion to change a temporary spousal support order, a party must establish that there has been a substantial change in circumstances since the previous temporary order was made. Variation proceedings relating to temporary orders should not become the focus of the parties' litigation. The onus on a party who seeks to vary a temporary spousal support order rather than waiting until trial is a heavy one. [Footnotes omitted]
[21] As indicated by Justice Boswell in Oxley v Oxley, 2010 ONSC 1609, at para. 26, the variation of temporary orders is not to be encouraged. There is a heavy onus on the party seeking to vary a temporary order – essentially, replacing one imperfect solution with another imperfect solution.
[22] The Eberhard Order is not a final order. Accordingly, if the Father believed that the Mother was not be entitled to spousal support after February 2014, the proper course would have been to list the matter for trial, not to unilaterally seize her court ordered payments. The proper termination date for child support could have been determined at trial as well, and direction provided as to the circumstances in which child support should continue after the age of 18 years. He did not do so.
[23] Accordingly, in these circumstances it is appropriate that I apply the test as annunciated in Damaschin-Zamfirescu and Berta. Accordingly, in order to implement a stay or variation of an interim order, pending trial, I must satisfy that the Father has shown a strong prima facie case for the relief sought, that he has shown a clear case of hardship, that there is some urgency, and that he has come to court with “clean hands.”
A. Strong Prime Facie case
[24] The Father has made several arguments as to why the Eberhard Order should no longer be binding or enforced. I do not find that any of these arguments make out a strong prima facie case.
i. Agreement to Terminate
[25] The Father maintains that he and the Mother agreed to terminate spousal support in February 2014. In support of this alleged agreement, he relies on correspondence between him and the Mother, and from the Family Responsibility Office (“FRO”) dated September 25, 2020, that states that there are no arrears owing by the Father.
[26] I have reviewed the correspondence on which the Father relies to show that the parties agreed that spousal support could be terminated. Nowhere in that communication is there any clear indication that the Mother agreed to the termination of her spousal support.
[27] I also put no weight behind the correspondence from the FRO dated September 25, 2020, indicating there were no arrears owing by him. The Father says that he assumes this letter was the result of the Mother swearing a statement of arrears stating nothing was owing. This position is only an assumption and is not supported by the evidence. The FRO advised the Father that the Mother was seeking to enforce her support orders. At that time, the FRO was not aware of what arrears were owing. The FRO then asked the Mother to prepare a Statement of Arrears, which she did, which showed arrears of spousal support exceeding $138,000. The Father was advised of these arrears accordingly. Also, even if I did accept that this correspondence as a prima facie indication of there being no arrears, the letter was dated September 2020, six years after he unilaterally terminated his spousal support payments. At most, he could argue that he relied on the letter for the last year.
ii. Material Change in Circumstances
[28] The Father has also deposed that his son advised him that the Mother was in a new relationship. He then made the unilateral determination that there was material change in circumstances and stopped paying.
[29] Clearly, the Father did nothing to verify that himself. Also, the Mother has provided evidence that at no time has she commenced cohabitation with a new partner. Accordingly, the Father has not shown a strong prima facie case that the Mother has re-partnered.
iii. Ongoing Entitlement to Spousal Support
[30] The Mother’s ongoing entitlement to spousal support will no doubt be the focus of the trial. In the meantime, I must determine if the Father has made out a strong prima facie case that the Mother is no longer entitled to spousal support until that issue is fully adjudicated. To borrow the wording from Damaschin-Zamfirescu, for the purposes of this motion, I must determine whether the Father made out a strong prima facie case that either party has experienced a substantial change in circumstances since 2010, sufficient to result in a variation or termination of spousal support.
[31] Since the Father has provided disclosure, we know that his income has increased. This is not the type of substantial change that would assist his request that spousal support be terminated.
[32] The Mother claimed to be unable to work at the time of the Eberhard Order and maintains that claim. She has provided her own evidence of the impact her health has had on her ability to work outside of the home and has provided a letter from her doctor. The Mother is also in receipt of disability benefits from C.P.P. which is, at minimum, recognition by the federal government that she is unable to work. Her income disclosure reflects that she has received disability income since the separation. Accordingly, the Mother maintains there is no substantial change in her circumstances.
[33] It does appear that the Mother has furthered her education, receiving a B.A. at Laurentian University in 2016, presumably on a part time basis given that it took 7 years. On social media, she identifies herself as an advocate in accessibility, disability, and special needs.
[34] I am not convinced though, that this education is strong prima facie proof of a substantial change in circumstances. It may be that her entitlement to spousal support should be at an end, but it may not be as well, and if her disability is proven at trial, her entitlement to ongoing support may be indefinite. The Mother has attached a DivorceMate calculation which utilizes the Father’s underestimated income in 2010 of $128,000 and imputed income to the Mother of $30,000. Even if she is not deemed to be disabled, the duration of her entitlement ranges from 4.25 years to 14 years. Also, if the trial judge reviews the Eberhard Order in light of the Father’s true income in those years, they may determine that the Mother’s entitlement is greater. We are still within that range.
[35] At trial, on a full evidentiary record, the trial judge may determine that spousal support should end or that it should have ended earlier. At this stage though, the Father has not shown the necessary strong prima facie case.
iv. Unreasonable Delay
[36] It is agreed that the Mother did not initiate any enforce proceedings until 2020.
[37] The Mother argues that it was not for a lack of trying. The evidence is clear that up to 2014, there was an exchange of communication regarding financial disclosure. The Mother received whatever the Father would send, which was not always complete. When she attempted to start enforcement proceedings with FRO at that time, she was advised that she needed to know where the Father worked. While she did know the Father’s email address, he claimed to be homeless and living in a R.V., she had no knowledge of his whereabouts or where and how he was employed. Despite this, the Father did still pay his child support. The Mother states that she did not take any action because she believed it would be fruitless and cost her unnecessary legal fees.
[38] That changed when their daughter R.F. turned 18 years old in the summer of 2020 and the Father unilaterally elected to stop child support for her. On August 12, 2020, the Mother contacted the Father and reminded him of both his child support obligations and his spousal support obligations which were outstanding since 2013. She indicated that matters would be escalated. She also requested income disclosure from the Father.
[39] It was always within the power of the Father to bring this litigation to a conclusion and seek a final order to terminate or limit spousal support. While the Mother commenced the Application, the Father filed an Answer and made his own claims. Both parties have an obligation to move it forward. Instead, the Father chose self-help and unilaterally halted his support payments, without the court authority to do so. It takes a certain level of audacity to consciously defy a court order for six years and then take the position you should not be bound by it because no one chased you hard or fast enough.
v. Doctrine of Laches
[40] At this interim stage, the doctrine of laches cannot prevent the Mother from enforcing her spousal support rights.
[41] As indicated by Justice Doyle in Cohen v Estate of Cohen, 2021 ONSC 2463:
[57] Laches is a defence that bars recovery by the Applicant because of the Applicant's undue delay in seeking relief. Laches has been found to be a defence to a proceeding in which an Applicant seeks equitable relief. This means that it is an unreasonable delay that can be viewed as prejudicing the opposing party.
[58] The person invoking laches is asserting that an opposing party has done nothing with respect to their rights, and that, as a result of this delay, circumstances have changed, witnesses or evidence may have been lost or no longer available, etc., such that it is no longer a just resolution to grant the Applicant’s claim. Failure to assert one's rights in a timely manner can result in a claim being barred by laches.
[42] First, spousal support obligations are not equitable relief, it is a right protected by statute. Also, there is no prejudice to the Father in seeking a final order at trial that spousal support be terminated. Financial disclosure was available. Medical evidence for both parties can be obtained. No circumstances have changed for the Father, in fact, his circumstances have improved. His prejudice has been created by himself, by not paying what was owed. There is no prejudice to his ability to seek the termination of spousal support at trial.
B. Hardship and Urgency
[43] Nowhere has urgency been shown by the Father, unless one could rely on the urgency that he created himself. He waited ten years after the Eberhard Order to try to vary or cease his obligations. Granted, the Mother took no steps as well, but she was the recipient of an enforceable and ongoing order. The Father recognized this Order by continuing to pay both spousal support and then child support during some or all of those 10 years. There is no reason for her to believe that being unable or unwilling to collect under the Eberhard Order would render it unenforceable. To reach that conclusion would cause many a judgment creditor to question why they bothered at all.
[44] Also, I see no hardship suffered by the Father, except what he has imposed upon himself. His income continues to increase, despite suffering from a heart condition and type II diabetes. From 2011 to today, he had the ability to make a substantial income.
[45] Nonetheless, he decided to stop paying his spousal support, absent any written agreement or court order. He took the risk that the Mother would forget about his obligations. She did not.
C. Clean Hands
[46] I also find that the Father has not come to court with clean hands. First, he ceased paying spousal support and then child support in the absence of a written agreement or a court order.
[47] Also, he did not provide income disclosure for over six years. Even if the Mother did not do so, that does not excuse the Father’s obligation. The Mother had to start these proceedings and obtain a court order for the Father to provide the disclosure he was required to provide.
D. Conclusion
[48] Accordingly, at this interim stage, the Father has failed to show that he had a strong prima facie case for the immediate termination of spousal support, that he is suffering from hardship, or that this is a situation of urgency. He has also not come to court with clean hands. The stay put in place by the Andre Order will be lifted such that the support provisions will stand pending trial and the provisions therein are enforceable.
V. Retroactive Adjustment of Child and Spousal Support
[49] As indicated, the issue of whether spousal support should be retroactively varied is an issue best left for trial.
[50] Child support is different. That is the right of the child and is clearly reviewable on a yearly basis. Section 14 of the Guidelines states that any change that would result in a different child support order is a sufficient enough change in circumstances to warrant a variation.
[51] The case of Michel v Graydon, 2020 SCC 24, [2019] S.C.J. No. 102, has made it clear that child support is the right of a child and the court is not eager to excuse those parties who fail to fulfil their obligations. Retroactive child support is a debt, by default, there is no reason why it should be not awarded unless there are strong reasons for not doing so: at para. 132. Retroactive child support simply holds payors to their existing, and unfulfilled support obligations. Modifying a previous court order to reflect the proper measure of support is an appropriate exercise and not arbitrary for a paying parent: at para. 25.
[52] In this motion, the Mother only seeks a retroactive adjustment commencing January 1, 2017. I see no reason not to make that order. The Father has provided disclosure for his income for the years in question, and his obligation is easy to calculate. Support payable in 2017 is divided given the change in the Guidelines tables as of November 22, 2017:
| Year | Father’s Income | CS payable for 2 children |
|---|---|---|
| 2017 (up to November) | $180,234 | $2,357 per month |
| 2017 (December only) | $180,234 | $2,440 per month |
| 2018 | $178,940 | $2,424 per month |
| 2019 | $225,520 | $2,983 per month |
VI. Preservation Order
[53] A preservation order is already in place. It was made on consent, but not “without prejudice.” Accordingly, this order remains binding on the parties. In the event though, that it was only to last until the return of this motion, I will consider the relief again.
[54] This court has the authority, pursuant to s. 40 of the Family Law Act, to restrain a party from depleting their assets that would impair or defeat a claim under this part.
[55] Before such an order is granted, I must determine if there is a real risk that the Mother’s claim for retroactive support could be defeated if the preservation order is not continued: Taus v Harry, 2016 ONSC 219, at para. 35.
[56] On the facts before me, I believe there is such a risk. While the Father is working now, he had indicated that he is suffering from poor health and needs to reduce his stress. He may have to stop working. Also, while he has title to a property in Sardis, B.C., he claims to have no equitable interest in that property. The Father has also claimed in the past to not have any fixed address and that his employment situation was tenuous. We now know that he has earned substantial income in the past.
[57] Finally, the Father has shown his propensity for not following court orders, with respect to payment of his support obligations and his disclosure obligations. The Father’s only substantial asset is his RRSP with Manulife.
[58] Accordingly, the preservation order put in place by the Andre Order shall remain in place pending trial.
VII. Conclusion
[59] For the foregoing reasons, I make the following orders:
a) The Father shall pay child support to the Mother for R.F., born August 2, 2002 and J. F., born June 5, 2005, in the amount of $2,357 per month, in accordance with the Tables under the Child Support Guidelines based on the Father’s 2017 annual income of $180,234, commencing January 1, 2017 and continuing on the first day of each month that follows, to and including November 1, 2017;
b) The Father shall pay child support to the Mother for R.F., born August 2, 2002 and J. F., born June 5, 2005, in the amount of $2,440, in accordance with the Tables under the Child Support Guidelines based on the Father’s 2017 annual income of $180,234, on December 1, 2017;
c) The Father shall pay child support to the Mother for R.F., born August 2, 2002 and J. F., born June 5, 2005, in the amount of $2,424 per month, in accordance with the Tables under the Child Support Guidelines based on the Father’s 2018 annual income of $178,940, commencing January 1, 2018 and continuing on the 1st day of each month that follows to and including December 1, 2018;
d) The Father shall pay child support to the Mother for R.F., born August 2, 2002 and J. F., born June 5, 2005, in the amount of $2,983 per month, in accordance with the Tables under the Child Support Guidelines based on the Father’s 2019 annual income of $225,520, commencing January 1, 2019 and continuing on the 1st day of each month that follows to and including December 1, 2019;
e) The Father shall pay child support to the Mother for R.F., born August 2, 2002 and J. F., born June 5, 2005, in the amount of $2,606 per month, in accordance with the Tables under the Child Support Guidelines based on the Father’s 2020 annual income of $194,100, commencing January 1, 2020 and continuing on the 1st day of each month that follows.
f) The stay of the Father’s child support and spousal support obligations, put in place by paragraph 5 of the order of Justice Andre dated April 13, 2021, shall be lifted immediately, subject only to the variations in subparagraphs (a) to (e) herein;
g) The stay of enforcement of the Father’s child support and spousal support obligations, put in place by paragraph 6 of the order of Justice Andre, dated April 13, 2021, shall be lifted immediately;
h) The Father is restrained from depleting his R.R.S.P. with Manulife Financial;
i) The parties are encouraged to resolve the issue of costs themselves; if they are unable, the Mother shall serve and file her written costs submissions, limited to 2 pages, double spaced and single sided, exclusive of Costs Outline, on or before January 14, 2022; the Father shall serve and file his written costs submissions, with the same size restrictions, on or before January 28, 2022; reply submissions, if necessary, must be served and filed by February 4, 2022; and,
j) All remaining claims are dismissed.
Fowler Byrne J.
DATE: December 20, 2021
COURT FILE NO.: FS-14-79976
DATE: 2021 12 20
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Tracey Elaine Field v Adrian Colin Charles Field
COUNSEL: Shana Maiato, for the Applicant Carol Struthers, for the Respondent Michelle Douglas-Cummings, for the Family Responsibility Office
ENDORSEMENT
Fowler Byrne J.
DATE: December 20, 2021