COURT FILE NO.: FS-20-15974
DATE: 20221101
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Regina Maria Fernandes
Applicant
– and –
Murray James Clark
Respondent
Stephen Eaton, for the Applicant
Scott Byers, for the Respondent
HEARD: October 27, 2022
PINTO J.
REASONS FOR DECISION
[1] On October 27, 2022, I heard the respondent's motion via Zoom to enforce the Order of Steele J. dated April 4, 2022 in respect of adjusting child support each year.
[2] The parties, an unmarried couple, were together for 16 years. The parties separated in June 2015.
[3] The parties have 3 children, now aged 21, 19, and 16.
[4] The applicant retained counsel on the eve of the within motion and requested that the motion be adjourned. I denied the adjournment request and noted that the motion had been adjourned on September 29, 2022 with the next attendance being peremptory on the applicant. In any event, I permitted the applicant to late file her responding affidavit which contained a substantive response to the respondent's motion. I also permitted the respondent to late file a brief reply affidavit.
[5] On March 5, 2020, the respondent commenced a Motion to Change the May 10, 2016 final order of Gibson J. (the "2016 Order"). The respondent sought to align Table child support with his obligations under the Child Support Guidelines, and establish a pathway to end support as the parties' three daughters transitioned to adulthood.
[6] The parties were represented by counsel on the Motion to Change. A Case Conference and Settlement Conference were held and a contested motion before Sharma J. took place on February 17, 2022. Ultimately, the parties resolved their differences by way of a final Consent Order that was signed by Steele J. on April 4, 2022 (the "Consent Order").
[7] Under the Consent Order, the respondent pays child support one year in arrears.
[8] Paragraph 13 of the Consent Order states:
On or before June 1 each year, commencing in 2022, the parties shall exchange Income Tax Returns and Notices of Assessment (and any Notice of Re-assessment) for the prior taxation year using the protocol in paragraph 22. The parties shall adjust the support payable for [one or both children as applicable] based on the Respondent's Line 15000 income as set out in his Notice of Assessment (or Re-assessment, as the case may be). Any change in support shall take effect on July 1. The parties shall cooperate and promptly sign whatever documents may be necessary to adjust the amount of monthly Table support collected by the Family Responsibility Office in accordance with this paragraph (including, if required, a Form 15C Consent to Motion to Change).
[9] The respondent was off work for most of 2021 recuperating from a serious cardiac procedure. His Line 150 income in his Notice of Assessment was $28,502. The respondent notes that this is far lower than the $67,544 Table child support in the 2016 Order.
[10] The moving respondent's position is that:
(a) He produced his 2021 Income Tax Return to the applicant before the terms of the Consent Order were finalized so the decrease in his income in 2021, could not have been a surprise to her.
(b) He also produced voluminous medical and financial disclosure regarding the status of his recovery following surgery, the income support he was receiving, and his return-to-work plan.
(c) The parties arrived at the Consent Order after hard-fought litigation and the Order should be complied with.
(d) The applicant has chosen to disregard the clear process for the annual adjustment of child support as set out in the Consent order.
(e) The respondent's motion is being brought as a compliance motion under Rule 1(8) of the Family Law Rules, and the list of possible orders under that Rule is not exhaustive.
(f) The Court has a broad discretion to craft a remedy in response to a party's failure to adhere to an order. The respondent seeks an order on the motion permitting the respondent to move by way of a 14B motion supported by evidence to ensure that the annual review and adjustment of support is done in accordance with the Family Law Rules.
[11] The applicant's position on the motion is that:
(a) In reality, the respondent's income under the Child Support Guidelines for 2021 is $52,096 based on two components: his Line 150 employment income of $28,502.85, plus his non-taxable disability income of $16,742, grossed-up.
(b) The dispute should really be dealt with via a Motion to Change since there has been a material change in circumstance in the respondent's income in relation to the Consent Order.
(c) The respondent's entire income, including non-taxable benefits, should be incorporated into the child support payment.
(d) Child support is the right of the child. The court should exercise its supervisory jurisdiction in respect of ensuring that the right amount of child support is payable by the respondent.
Discussion
[12] I find that the key issue on the motion is whether there is scope within the Consent Order to incorporate income other than the respondent's Line 150 income when determining his income for 2021.
[13] I find that the wording of the Consent Order precludes the inclusion of income other than the respondent's Line 150 income.
[14] The applicant submits that the wording of the Consent Order impliedly permits the respondent's full income to be imputed which would include his disability income and not just his Line 15000 income. The applicant argues that this is because, in the Consent Order, the respondent's "agreed upon" income was $75,675 as of January 1, 2022 despite the exchange of the respondent's T1 General tax filing with the line 150 income being $28,502.85.
[15] I disagree with the interpretation of the Consent Order urged by the applicant. I find that, as a result of the parties' negotiations they "agreed upon" $75,675, and they agreed on the clear wording in paragraph 13 of the Consent Order that stipulates how the support payments would be determined from year to year and adjusted. Nowhere is there any reference to imputation of income in the Consent Order. Instead, "the parties shall adjust the support payable [for the children] based on the Respondent's Line 15000 income…" Further, the parties shall "cooperate and promptly sign" whatever documents may be necessary to adjust the amount of monthly Table support…"
[16] I find that the applicant's submission amounts to urging me to ignore the clear wording of the Consent Order and instead determine the respondent's 2021 income based on imputation of income when that was clearly not what the parties had in mind. I agree with the respondent that the Consent Order was a result of a negotiation between the parties following several years of litigation. Whatever supervisory jurisdiction the family law courts have in respect of child support, I disagree that it goes so far as to read words into a final agreement that do not belong.
[17] I further find that it is not for the respondent to bring a Motion to Change. He is not asking for a change in the Consent Order. Instead, he is asking the court to enforce it.
[18] I find, pursuant to Rule 1(8) of the Family Law Rules that the applicant is in breach of the Consent Order in that she did not promptly sign whatever documents may be necessary to adjust the amount of support in respect of the respondent's 2021 income.
[19] Notwithstanding that I find in favour of the respondent on the merits of his motion, I disagree with the specific order that he seeks in terms of relief. The respondent proposes that I sign an order that specifies that paragraph 2 of the Consent Order is varied to base his support payments commencing July 1, 2022 on his income of $28,502.85, and that a new paragraph 13.1 be inserted into the Consent Order.
[20] The new paragraph 13.1 states:
If the Applicant does not comply with her obligation to facilitate the annual adjustment of child support in accordance with paragraph 13 by signing a Form15C Consent to Motion to Change within 14 days of receiving a draft, the Respondent may make a motion in Form 14B for an order dispensing with the Applicant's consent to vary the amount of child support. The Respondent shall serve the motion on the Applicant using the protocol in paragraph 22, together with an affidavit to which complete copies of his Income Tax return and Notice of Assessment (and any Notices of Re-assessment) for the prior taxation year shall be attached as exhibits. The respondent shall be entitled to costs of any such motion fixed in the amount of $500, inclusive of HST and disbursements.
[21] I do not agree that varying the wording of the Consent Order is appropriate. Instead, I find that my order arising from this motion should declare, pursuant to Rule 1(8) that I find the applicant not in compliance with the Consent Order and direct that she come into compliance within 7 days of the release of these reasons by "promptly signing whatever documents may be necessary to adjust the amount of monthly Table support collected by the FRO in accordance with this paragraph (including, if required, a Form 15C Consent to Motion to Change)".
[22] I order that the respondent shall pay child support to the applicant for the child SJ, in the amount of $241 per month, in accordance with the Tables under the Child Support Guidelines based on the respondent’s 2021 Line 150 income of $28,502.85, commencing July 1, 2022 and continuing on the first day of each month that follows.
Costs
[23] The respondent's costs are $6,017.25 on a full-indemnity basis based on fees of $5,325 (14.20 hours of Mr. Byer's time at $375 per hour), no disbursements, and $692.25 in HST. Mr. Byers was called to the Bar in 2014.
[24] The applicant's Bill of Costs was $2,116.20, inclusive of fees, disbursements and HST.
[25] Given that applicant's counsel was retained on the eve of the hearing, and the applicant did not provide a factum on the motion, I do not consider the applicant's costs representative of the appropriate costs on the motion.
[26] Costs are in my discretion. The touchstones are proportionality and reasonableness. A successful party in a family law case is presumptively entitled to costs. An award of costs is subject to the factors listed in Rule 24(12) of the Family Law Rules, the directions set out under Rule 24(4) (Unreasonable Conduct), and Rule 24(8) (Bad Faith).
[27] I find that after the parties reached an agreement that resulted in the Consent Order in early April 2022, it was unreasonable for the applicant to not comply with the clear wording of paragraph 13 of the Consent Order. While I do not find that she did so in bad faith, the merits of her position were weak.
[28] I find that applying a higher partial indemnity scale of 66% to the respondent's full-indemnity costs is appropriate. Hence, $3,514.50 (66% of $5,325) plus HST of $456.88 = $3,971.38, which I would round to $4,000.
[29] I order that the applicant pay costs to the respondent fixed in the amount of $4,000 within 30 days of the release of these reasons.
Pinto J.
Released: November 1, 2022
COURT FILE NO.: FS-20-15974
DATE: 20221101
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Regina Maria Fernandes
Applicant
AND:
Murray James Clark
Respondent
REASONS FOR DECISION
Pinto J.
Released: November 1, 2022