Lassche v. Crow, 2022 ONSC 7168
COURT FILE NO.: FC-FS-154/18
DATE: 2022/12/19
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Charlene Lassche (aka Crow), Applicant
AND:
Matthew Crow, Respondent
AND:
Director, FRO, Agency with a Special Interest
BEFORE: T. PRICE J.
COUNSEL: Applicant, Unrepresented
Douglas J. Spiller - Counsel for the Respondent
David Pentz – Counsel for the Director, FRO
HEARD: November 25, 2022
ENDORSEMENT
[1] This Motion, brought by the Respondent (hereinafter, Mr. Crow), seeks relief by either of two alternate paths.
[2] Firstly, he seeks an order granting him judgment in accordance with Minutes of Settlement executed by the parties on October 14, 2022. The Minutes of Settlement encompass both parenting and child support issues.
[3] Secondly, and in the alternative, Mr. Crow seeks an interim order varying:
a. the child support which he was ordered to pay under the terms of an order dated October 28, 2019 by Justice S. Campbell, retroactive to March 1, 2020 or such other date as the court deems appropriate;
b. the amount that Justice Campbell ordered him to pay monthly in reduction of an undetermined amount of child support arrears which had arisen prior to October 1, 2019;
c. through its deletion, the date by which he is to pay costs to the Applicant (hereinafter, Ms. Lassche) under an order made by Justice Campbell on January 31, 2020 and setting a monthly amount to be paid toward those costs as of a new, later date.
[4] In the alternative to his motion for a final order based on the Minutes of Settlement, Mr. Crow also requested an order that he have parenting time with the parties’ child at Mr. Crow’s residence in Barrie, Ontario on alternating weekends from Friday at 6 PM to Sunday at 6 PM, with the parties to share the transportation between St. Thomas and Barrie, each party driving the child one way.
[5] Mr. Crow also requested an order staying enforcement proceedings brought against him by the Director of the Family Responsibly Office with respect to the amounts he had been ordered to pay under the orders of Justice Campbell.
[6] That request, however, was not proceeded with in light of submissions made by Mr. Pentz, counsel for the Director, in which he pointed out to the court that there exists both legislative and judicial authority which prevent a court from staying the enforcement of a support deduction order if there is not also an order also staying the support order. (See: Garneau v. Director, Family Responsibly Office, (2010) ONSC 2804; Yip v. Yip, (1988) 1988 4472 (ON SC), 15 R.F.L.(3d) 211; Family Responsibility and Support Arrears Enforcement Act, S.O. 1996, c. 31, s. 20(6), as amended).
[7] Mr. Crow did not seek an order staying the support order. Given this reality, Mr. Crow elected not to proceed with his request to stay the enforcement of whatever support order might emerge from his motion.
[8] The Applicant, Ms. Lassche, opposed the relief sought by Mr. Crow.
[9] During submissions, Mr. Spiller, counsel for Mr. Crow, also requested that I make an order for some parenting time for his client over the Christmas break. Such a request was not included in Mr. Crow’s Notice of Motion but it is addressed at the end of this endorsement.
Background
[10] The parties’ history and the events which led to this proceeding, and more particularly this motion, were more fully reviewed by Justice Campbell in his unreported reasons dated October 28, 2019, found at 2019 ONSC 5822.
[11] The parties began cohabiting in February 2009, were married on April 24, 2009 and separated on July 30, 2012. They have one child, who is now 13 years of age. He is referred to herein as M.
[12] The parties signed a separation agreement on October 30, 2012. That agreement appears to have been registered with the court for enforcement purposes.
[13] Under the terms of the agreement, Ms. Lassche was granted sole custody of M. Mr. Crow was to have regular access on alternate weekends and at such other times as may be agreed upon by the parties. Mr. Crow’s access was subject to certain terms set out in the agreement.
[14] Mr. Crow was to pay child support in the amount of $546.00 per month commencing November 1, 2012, based upon an income of $60,000.00 per year. He was also to pay spousal support in the amount of $600.00 per month commencing November 1, 2012 for a period of at least four years.[^1]
[15] While the parties initially followed the terms of the separation agreement, Mr. Crow unilaterally reduced the amount of support that he paid as of October 2013. He further reduced the support payments in September 2015 based upon an alleged oral agreement with Ms. Lassche, an agreement of which she denies the existence.
[16] Ms. Lassche commenced this proceeding on August 3, 2018. Although served on August 19, 2018, Mr. Crow did not file an Answer. As a result, the matter was set to an uncontested trial on March 11, 2019.
[17] On that date, Justice Aston made an order granting Ms. Lassche a divorce. The order included several heads of corollary relief, the most pertinent of which:
a. set child support in the amount of $556.00 per month, based upon Mr. Crow having an annual income of $60,000.00; and
b. fixed arrears of child and spousal support at $32,906.00, $12,300.00 of which was attributable to spousal support and, although not expressly stated, $20,606.00 of which had to be attributable to child support.
[18] Upon learning of the divorce order with its corollary relief, Mr. Crow brought a motion to set aside the default order of Justice Aston. Mr. Crow also sought certain corollary relief, including an extension to file his Answer, temporary unsupervised access to M., an order declaring the separation agreement between the parties to be null and void, and an order staying the enforcement of any arrears accrued pursuant to the order of Justice Aston.
[19] Ms. Lassche countered with her own motion, seeking an order dismissing Mr. Crow’s motion and, in the alternative, orders pertaining to the payment of arrears of child support and the posting of security for costs.
[20] It was those motions which came before Justice Campbell on October 28, 2019. Justice Campbell:
a. set aside the entirety of Justice Aston’s order but for the granting of the divorce;
b. extended the time for Mr. Crow to serve and file his Answer, financial statement and form 35.1 Affidavit;
c. ordered Mr. Crow to pay interim child support to Ms. Lassche commencing October 1, 2019 in the amount of $697.05 per month, based upon the $74,644.00 annual income that Mr. Crow claimed in his financial statement sworn July 26, 2019; and
d. ordered Mr. Crow to pay the sum of $400.00 per month, commencing October 1, 2019, “on account of the arrears of child support which are yet to be determined.”
[21] It is in respect of those financial provisions of Justice Campbell’s order of October 28, 2019 that Mr. Crow seeks relief on the motion before me.
[22] On January 31, 2020, Justice Campbell set the costs for the proceedings before both Justice Aston on March 11, 2019 and himself on October 28, 2019. Mr. Crow was ordered to pay those costs by May 1, 2021. It is in respect of the payment deadline and how the costs are paid that Mr. Crow also seeks relief on this motion.
Current Status of the Application
[23] All of the interim proceedings thus far, including this one, have been brought in the context of Ms. Lassche’s original application issued on August 3, 2018. When this motion was argued on November 25, 2022, the parties were uncertain whether they had yet had a settlement conference. On checking, I ascertained that one had been scheduled for December 21, 2022. I vacated that date and adjourned the matter to February 24, 2022 at 10 AM, to be spoken to.
Request for Enforcement of Settlement Agreement
[24] While Mr. Crow’s Amended Notice of Motion to did not indicate expressly that what was being sought was an order by way of summary judgment, that is how Mr. Spiller framed his argument in support of Mr. Crow’s request for an order incorporating the terms of the Minutes of Settlement. Since it was the primary relief sought by Mr. Crow, I will address it first.
[25] In his original Notice of Motion, which was returnable on October 24, 2019 and was supported by an affidavit sworn on September 22, 2022, Mr. Crow was seeking only what is now his alternate relief. He relied upon:
a. a change in his financial circumstances since October 28, 2019;
b. evidence that he had earned less in 2019 than he had projected when Justice Campbell heard the motion on October 1, 2019; and
c. financial hardship that he claimed had resulted from the onset of Covid-19 in March 2020,
as the bases for seeking the variations to the financial provisions of Justice Campbell’s orders of October 28, 2019 and January 31, 2020.
[26] However, in his Amended Notice of Motion dated November 15, 2022, Mr. Crow added the primary request for a final judgment in accordance with Minutes of Settlement executed by the parties on October 14, 2022.
Evidence of Mr. Crow
[27] In a supplementary affidavit sworn by Mr. Crow on November 16, 2022, the contents of which were not opposed by Ms. Lassche, despite her opposition to the outcome being sought by Mr. Crow, he deposed that, after Ms. Lassche had been served with the materials in support of his motion as it was originally constituted, she contacted him by text message, telling him that she was prepared “to get rid of” the involvement of the Family Responsibility Office to the benefit of Mr. Crow.
[28] When he spoke with Ms. Lassche, she proposed that the parties settle. She indicated that she was “prepared to cancel the arrears owing to FRO” if Mr. Crow would resume paying child support based upon his current, reduced income of $39,300.00 per annum, which would amount to $350.00 per month. She proposed to further reduce the payment to $200.00 per month if were to undertake the driving between Barrie and St. Thomas for parenting time with M.
[29] As to that, Ms. Lassche further indicated that she was prepared to agree to parenting time visits between Mr. Crow and M. on one weekend per month.
[30] As a result of these conversations and communications between Mr. Spiller and Ms. Lassche, Mr. Spiller sent Ms. Lassche an offer to settle by email. Also included were draft Minutes of Settlement, a draft Order and a consent with the draft order attached.
[31] The draft Minutes of Settlement addressed parenting issues as follows:
a. M.’s primary residence would continue to be with Ms. Lassche;
b. the parties would consult with respect to decision-making, with Ms. Lassche having the final say in the event the parties were unable to agree on a parenting issue;
c. Mr. Crow would have parenting time with M. on the second weekend of each month from Friday at 6 PM until Sunday at 6 PM, together with one week in the summer, and at such other times as the parties might agree;
d. Mr. Crow would have telephone access with M. “in a free and liberal manner;” and
e. Ms. Lassche would transport M. to Barrie on Friday evening and Mr. Crow would return him to St. Thomas on Sunday, with each party bearing the costs of their transportation of M.
[32] The draft Minutes of Settlement addressed child support issues as follows:
a. commencing November 1, 2022 and on the first day of each month thereafter, Mr. Crow was to pay child support to Ms. Lassche in the amount of $350.00 per month in accordance with the Federal Child Support Guidelines, based upon Mr. Crow having a gross annual income of $39,300.00 per annum;
b. each party would maintain M. as a beneficiary of any insurance policy available through their employment;
c. there would be no s. 7 extraordinary expenses for M. unless the parties agreed in writing;
d. any arrears of child support which might have accrued in the period between October 30, 2012 and November 1, 2022 would be set aside and set at nil dollars and all claims for retroactive child support back to the date of separation would be dismissed without costs;
e. the parties’ separation agreement dated October 30, 2012 would be declared void ab initio;
f. neither party would owe spousal support to the other; and
g. Ms. Lassche’s claim for child support was to otherwise be dismissed without costs, as were all other claims made by her in her application.
[33] The draft Minutes of Settlement further provided that:
a. the parties would agree to withdraw enforcement of the child support order from the Family Responsibility Office effective November 1, 2022, with Mr. Crow to pay Ms. Lassche directly; and
b. each party would bear their own costs.
[34] In her response to Mr. Spiller, Ms. Lassche informed him that she would agree with the terms set out in the Minutes of Settlement if the Family Responsibly Office would continue to be involved in the collection of child support and if Mr. Crow would provide his T4 form to her every year by April.
[35] Mr. Spiller amended the draft Minutes of Settlement and draft order and sent them to Ms. Lassche. She responded that she would sign the revised Minutes of Settlement and return them to Mr. Spiller but that it would take her a few days to do so as she did not have a computer.
[36] Since time was growing short between Ms. Lassche’s agreement to the terms of the revised Minutes of Settlement and the October 14, 2022 date scheduled for the motion, Mr. Spiller informed Ms. Lassche that she would still have to virtually attend the motion. He also informed her that he required that she return the executed Minutes of Settlement in sufficient time that they could be filed with the court for an order to be made on October 14, 2022.
[37] On October 13, 2022, Mr. Spiller requested that Ms. Lassche confirm, in writing, that she had reviewed and was consenting to the Minutes of Settlement, which she did via a return email sent to Mr. Spiller on October 13, 2022 at 3:52 PM.
[38] On October 14, 2022, both parties signed the Minutes of Settlement, each in the presence of a witness. Additionally, Ms. Lassche approved a draft order which mirrored the terms of the Minutes of Settlement. Ms. Lassche executed the Minutes around noon.
[39] The matter was spoken to before Justice Campbell at 2:15 PM on October 14, 2022.
[40] When presented with the executed Minutes of Settlement, Justice Campbell asked Ms. Lassche if she had received legal advice about the settlement. She indicated that she had not. Justice Campbell allowed Ms. Lassche to confer in a Zoom breakout room with Legal Aid Duty Counsel. After having done so, Ms. Lassche informed Justice Campbell that she did not wish to proceed with the settlement. She provided no reasons for taking that position.
[41] Justice Campbell adjourned the motion to November 25, 2022 for argument. He encouraged Ms. Lassche to either obtain legal advice or retain counsel. She apparently did neither.
Evidence of Ms. Lassche
[42] In the affidavit in which she filed an opposition to Mr. Crow’s motion, Ms. Lassche deposed that Mr. Crow had not paid child support consistently, whether under the separation agreement or the terms of Justice Campbell’s order. For that reason, she did not agree that he should be able to avoid paying proper child support.
[43] She also indicated that the Director should continue to be able to collect the child support arrears because the amount owed would be of benefit to M. and his future.
[44] She further deposed that she did not agree that M. should have parenting time with Mr. Crow every second weekend or that she should provide transportation. She suggested that M. visit with Mr. Crow in Barrie once per month, with Mr. Crow to be responsible for providing all transportation.
[45] Ms. Lassche appears to have misunderstood that the draft Minutes of Settlement would have Mr. Crow having regular parenting time M. only once per month, on the second weekend.
[46] Ms. Lassche did not deny any of Mr. Crow’s factual assertions as to how the Minutes of Settlement had come into existence.
Status of the Minutes of Settlement
[47] Mr. Spiller relied upon the decision of Justice G.M. Mulligan in Steine v. Steine, 2010 ONSC 4289, [2010] O.J. No. 3331, in support of his submission that the Minutes of Settlement executed by the parties met the definition of a domestic contract as set out in s. 51 of the Family Law Act, R.S.O. 1990, c. F. 3.
[48] In that case, both parties acknowledged that a settlement agreement reached following a case conference did constitute a domestic contract. As Justice Mulligan noted, it had been signed by both parties and was witnessed, thereby meeting the requirements of section 55(1) of the Family Law Act.
[49] I see no reason to disagree with the conclusion of Justice Mulligan in that regard.
[50] The issue then becomes whether or not the domestic contract between the parties should be respected and enforced.
Law
[51] Summary judgment motions are governed by Rule 16 of the Family Law Rules, which provide as follows:
RULE 16: SUMMARY JUDGMENT
WHEN AVAILABLE
- (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.
AVAILABLE IN ANY CASE EXCEPT DIVORCE
(2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim.
EVIDENCE REQUIRED
(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.
EVIDENCE OF RESPONDING PARTY
(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.
EVIDENCE NOT FROM PERSONAL KNOWLEDGE
(5) If a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.
NO GENUINE ISSUE FOR TRIAL
(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.
POWERS
(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
ORAL EVIDENCE (MINI-TRIAL)
(6.2) The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.
ORDER GIVING DIRECTIONS
(9) If the court does not make a final order, or makes an order for a trial of an issue, the court may, in addition to exercising a power listed in subrule 1 (7.2),
(a) specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial (in which case the order governs how the trial proceeds, unless the trial judge orders otherwise);
(b) give directions; and
(c) impose conditions (for example, require a party to pay money into court as security, or limit a party's pretrial disclosure).
[52] The leading case on summary judgment motions in the context of civil proceedings is Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. In its decision, the Supreme Court made the following pertinent statements:
4 …In my view, a trial is not required if a summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.
49 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.
50 These principles are interconnected and all speak to whether summary judgment will provide [page107] a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.
59 …What is fair and just turns on the nature of the issues, the nature and strength of the evidence and what is the proportional procedure.
60 The "interest of justice" inquiry goes further, and also considers the consequences of the motion in the context of the litigation as a whole. (underlining added)
Analysis
Parenting Issues
[53] I am satisfied that the parenting issues settled by the parties are entirely consistent with what they originally agreed upon when they separated in 2012, including that they would share the driving of M. for access with Mr. Crow. At that time, Ms. Lassche resided in St. Thomas and Mr. Crow resided in Orillia.
[54] M.’s primary residence continues to be with Ms. Lassche, as it has been since the date of separation. While the original agreement did not require her to consult with Mr. Crow, the settlement requires that she do so, while preserving to her the right to make a final decision with respect to significant issues pertaining to M. in the event that she and Mr. Crow cannot agree upon them.
[55] As I have already noted, Ms. Lassche, in her responding affidavit, indicated that she believed that parenting time occurring once per weekend per month was sufficient for Mr. Crow. That is what the settlement provides.
[56] The only other parenting issue raised by Ms. Lassche in her responding affidavit pertained to whether she should transport M. once per month to Barrie from St. Thomas in order that he can have parenting time with Mr. Crow. Ms. Lassche took the position that Mr. Crow should be responsible for all transportation of M. This would mean that he would, one weekend per month, be required to drive from Barrie to St. Thomas in order to retrieve M. after school on Friday, drive back with him to Barrie, and then drive him back to St. Thomas on Sunday, after which he would return to Barrie. He would be required to make four trips between the two cities in one weekend in order to have parenting time with M.
[57] I find that the position being taken by Ms. Lassche in respect of the transportation of M. is not only unreasonable, it is also inconsistent with the position she agreed to in the separation agreement, drafted by her former lawyer. She advances no rationale for taking her position. She mentions nothing about costs nor difficulties with transportation.
[58] I am satisfied that Ms. Lassche knew that the Minutes of Settlement that she executed required her to participate in M.’s transportation for parenting time with Mr. Crow.
[59] I find that the question of who will be driving the child for one of the two journeys required for Mr. Crow to exercise parenting time on one weekend of each month does not rise to being a genuine issue which requires a trial for resolution.
[60] I am, accordingly, prepared to make a final order with respect to parenting time in accordance with Paragraphs 1 through 9 of the Minutes of Settlement executed by the parties on October 14, 2022.
Child Support
[61] My willingness to endorse the agreement reached by the parties with respect to parenting issues does not extend, however, to the terms of their agreement respecting either ongoing child support or the elimination of child support arrears.
[62] When I raised with counsel for Mr. Crow whether the agreement should be adopted by the court as the basis for an order, having voiced some concern about the validity of the terms that eliminated the arrears of child support, counsel cited the decision of the Supreme Court of Canada in Richardson v. Richardson, [2021] S.C.J. No. 36 in support of his submission that the court should respect an agreement of the parties.
[63] That case is distinguishable for a number of reasons. Firstly, the proceeding involved a motion to change a final order. In this case, there is no prior final order. This is still the original proceeding between the parties, and Mr. Crow is seeking to nullify the only agreement that the parties have reached thus far.
[64] Secondly, the issue in Richardson concerned a proposed relocation of the parties’ children rather than child support.
[65] Thirdly, the facts are substantially different. The trial court in Richardson rejected a settlement reached by the parties in the course of a trial, completed the trial and made an order which was contrary to the settlement agreement. That decision was upheld by the Ontario Court of Appeal. When the matter was further appealed to the Supreme Court of Canada, by the time it was scheduled for argument, the parties had informed the court that they did not wish to proceed. The Supreme Court dismissed the appeal without commenting on the proceedings either at trial or in the Ontario Court of Appeal.
[66] There is, however, a more fundamental reason why I should not uphold the parties’ settlement regarding child support and the elimination of child support arrears at this time.
[67] Firstly, section 56(1.1) of the Family Law Act specifically provides that the court “may disregard any provision of a domestic contract pertaining to” the support of a child “where the provision is unreasonable having regard to the Child Support Guidelines as well as to any other provision relating to support of the child in the contract.”
[68] I was provided with absolutely no evidence as to why the cancellation of all child support arrears would be of any value to M. In my view, such a cancellation, unexplained, is, by its nature, unreasonable, especially since it completely ignores the Child Support Guidelines.
[69] When I asked Mr. Spiller what Ms. Lassche was receiving in consideration of the elimination of all child support arrears, he responded, “the end of this litigation.” That, in my view, is an insufficient reason to deprive a child of years of unpaid support, especially since there appears to be no defence to Ms. Lassche’s child support claim other than, perhaps, quantum based on Mr. Crow’s income over the years prior to 2022.
[70] Apart from that, it is now well established that child support is the right of the child, which cannot be bargained away by the parents. (D.B.S. v. S.R.G.; T.A.R. v. L.J.W.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, [2006] S.C.J. No. 37 at paragraph 38; Michel v. Graydon, 2020 SCC 24, [2019] S.C.J. No. 102; Colucci v. Colucci, 2021 SCC 24, [2021] S.C.J. No. 24)
[71] That the parents of a child entitled to child support cannot bargain away that right was made clear by the Ontario Court of Appeal in Gray v. Rizzi, 2016 ONCA 152, [2016] O.J. No. 958 at paragraph 58, where it called evidence that a support recipient agreed to non-payment of the support “irrelevant,” writing that, because child support is the right of the child, it “cannot be bargained away by the recipient parent.”
[72] I find that, as to child support, what the Minutes of Settlement signed by the parties does is precisely that which the Supreme Court of Canada and the Ontario Court of Appeal have said cannot be done by parents - the recipient parent in particular. They bargained away M.’s right to unpaid child support from the past.
[73] For these reasons, I find that the provisions of the agreement which eliminated all child support arrears are not reasonable, having regard to the Child Support Guidelines.
[74] Accordingly, I find that there are genuine issues requiring a trial on this issue. They are: on what basis should the court approve an agreement which negates a child’s right to unpaid child support and, if such a basis exists, to what extent should the unpaid child support arrears be eliminated, if at all?
[75] I also note that, while the agreement does provide for ongoing child support, the basis for that ongoing support is a claim to reduced income on the part of Mr. Crow, a claim that will be discussed later in this endorsement. As will be seen, there is a genuine issue, in my view, as to what Mr. Crow’s actual income is in 2022.
[76] As a result, I will be dismissing Mr. Crow’s request for summary judgment on the child support and child support arrears provisions of the Minutes of Settlement.
[77] This leads me to the alternate relief sought by Mr. Crow in his Amended Notice of Motion, which was the primary relief that he sought in the original Notice of Motion.
Alternate Claims for Financial Relief in the Amended Notice of Motion
[78] Given my conclusion that the parenting issues were resolved by the parties’ Minutes of Settlement, the only issues remaining unresolved, claimed in the alternative in Mr. Crow’s amended notice of motion, pertain to child support.
[79] In that regard, Mr. Crow has requested that:
a. effective November 1, 2022, his ongoing child support obligation set out in the October 28, 2019 order of Justice Campbell be reduced from $697.05 per month to $200.00 per month or such other amount as the court deems just, retroactive to March 1, 2020 or such other date as the court deems just;
b. the amount to be paid by him against arrears of child support accrued between October 1, 2019 and October 1, 2022 be set at $50.00 per month, effective November 1, 2022;
c. the amount to be paid by him in reduction of arrears of child support accumulated prior to October 1, 2019 be reduced from the $400.00 per month ordered by Justice Campbell in his order of October 28, 2019 to $50.00 per month, retroactive to March 1, 2020, effective as of November 1, 2022; and
d. the May 1, 2021 deadline for payment of costs to Ms. Lassche, as set by Justice Campbell in his order of January 31, 2020, be deleted, with Mr. Crow to pay $50 per month in reduction of costs commencing May 1, 2023 until paid in full.
Evidence of Mr. Crow
Income in 2019
[80] According to Mr. Crow, despite Justice Campbell having based child support as of October 1, 2019 on Mr. Crow having an estimated 2019 income of $74,644, which Justice Campbell took from Mr. Crow’s financial statement sworn July 26, 2019, his income for 2019 was actually $68,857.00.
[81] This evidence is supported by Mr. Crow’s 2019 notice of assessment which was appended to the financial statement sworn by him on September 20, 2022.
Income in 2020 and 2021
[82] According to the notice of assessment produced by Mr. Crow for 2020, his income that year was $75,622.00.
[83] Mr. Crow was terminated on June 9, 2021 from his employment as a mason, a position he had held since 2014. The T4 produced by the former employer indicates that Mr. Crow earned $90,780.40 for the first six months of 2021, an amount which Mr. Crow disputes. By his own estimate, he earned in 2021, from the original employer, a subsequent employer and employment insurance, a total of $66,611.18.
[84] Mr. Crow retained a bookkeeper to analyse his income from the original employer based upon his pay statements. An unsworn document attached to Mr. Crow’s September 20, 2022 financial statement indicates that the bookkeeper did undertake that analysis and that there is some reason to doubt the attributed earned income of $90,780.40 entered on Mr. Crow’s 2021 T4 from this employer. Mr. Crow also produced the first page of a 2021 income tax return summary on which the Line 15000 entry for his income was $66,611.18.
Income from Years Prior to 2019
[85] Fortuitously, the bookkeeper also set out in the report appended to Mr. Crow’s financial statement the amounts said to be on file with the Canada Revenue Agency evidencing Mr. Crow’s reported T4 income for the years between 2012 and 2020 from that same employer. Those amounts were:
| Year | Amount | Year | Amount | Year | Amount |
|---|---|---|---|---|---|
| 2012 | $47,267.00 | 2015 | $61,204.00 | 2018 | $74,644.00 |
| 2013 | $36,102.00 | 2016 | $73,607.00 | ||
| 2014 | $55,181.00 | 2017 | $84,455.00 |
Mr. Crow’s Request
[86] Mr. Crow asks that his ongoing child support obligation of $697.05 per month be reduced, retroactive to March 1, 2020.
Reasons Advanced to Reduce Child Support Payments
[87] While Mr. Crow estimates that his 2022 income is likely to be $39,300.00, that calculation was based upon a statement of earnings for the months of July and August 2022 only. An income of $39,300.00 would generate a child support payment of $351.00 per month.
[88] Mr. Crow, however, is requesting that ongoing support be further reduced to $200.00 per month for three reasons. They are:
a. that he accumulated debts during the pandemic;
b. that he has to pay the cost of travel between Barrie and St. Thomas for parenting time; and
c. “hardship.”
[89] For the same reasons, Mr. Crow is requesting that his payments on arrears of child support be reduced from the $400.00 per month set by Justice Campbell to $50.00 per month, retroactive to March 1, 2020, when the Covid-19 pandemic was declared.
[90] Mr. Crow’s reference to other debts, according to his affidavit, relates to:
a. rental arrears of $9,792.00 which, he agreed with his landlord in December 2021, would be paid at the rate of $831.50 per month. The agreement was the basis of an order made by the Landlord and Tenant board on December 29, 2021. When added to his regular monthly rent of $1,436.00, Mr. Crow’s total monthly rent payment, including arrears, is $2,269.00 until the arrears are paid;
b. utility bills for electricity, gas and water; and
c. vehicle repairs of costing $3,500.00 in July 2022.
[91] No proof was provided for either the utility bills or the vehicle repair. No evidence was tendered with regard to how Covid-19 impacted Mr. Crow financially.
[92] The general thrust of Mr. Crow’s position is that his debts, when added up and considered in the context of an annual income of $39,300.00, leave him with little money to pay the amounts that he has been ordered to pay for child support.
[93] According to his financial statement dated September 20, 2022, Mr. Crow’s spouse earns approximately $1,500.00 per month, all of which she contributes toward household expenses.
Analysis
[94] Mr. Crow raises several issues which require consideration. They include:
a. whether he is claiming or has established that he has a legitimate claim of undue hardship, thereby opening the door to an adjustment to child support under the Guidelines;
b. if the answer to the first issue is “no,” whether his ongoing child support obligation should be reduced given his estimated reduced income and accumulated debts; and
c. whether his payments on arrears of child support should be reduced given his estimated reduced income and accumulated debts.
Claim of Financial Hardship
[95] It is not clear to me if, in seeking relief on this basis, Mr. Crow was making a claim of undue hardship. He does not use the term “undue hardship” in his materials.
[96] In order for a court to determine whether or not a support payor can claim that paying the Guideline amount of child support might cause the support payor to suffer undue hardship, the support payor must fall within the parameters of s. 10(2) of the Guidelines.
[97] On the evidence, I find that Mr. Crow has not established any of the s. 10(2) parameters.
[98] Even if Mr. Crow had established, on a prima facie basis that he would suffer undue hardship if required to pay Guideline support, I would still be required, under s. 10(3) of the Guidelines, to deny his claim if, after paying the child support, his household standard of living would be higher than that of Ms. Lassche.
[99] Mr. Crow did not provide me with any evidence of the comparative household standards of living so as to enable me to consider whether or not I should deny what otherwise might be a prima facie claim of undue hardship under s. 10(3).
General Financial Hardship
[100] In his affidavit, sworn September 22, 2022, Mr. Crow estimates that, after expenses, his average income per month is $3,275.00. While his spouse is not required to pay his support payments, the fact that she contributes $1,500.00 per month to the household expenses does free up money that could go towards the payment of child support.
[101] According to his financial statement sworn September 22, 2022, Mr. Crow’s monthly expenses amounted to $8,153.00, an amount which far exceeds the total available from both him and his wife to pay their expenses.
[102] Included in Mr. Crow’s listed monthly expenses are debt payments of $975.00, repairs and maintenance on his rental residential unit in the amount of $200.00 per month, alcohol and tobacco the amount of $150.00 per month and meals outside the home in the amount of $100.00 per month. These all appear to be discretionary expenditures. They total $1,425.00 per month.
[103] Instead of prioritizing his obligation to pay child support (the total amount, including both ongoing support and arrears, as set by Justice Campbell, amounting to $1,097.00 per month, plus whatever he can contribute to the payment of his costs), Mr. Crow requests that his obligation to pay support for his child should be reduced to a mere $300.00 per month.
[104] This would increase to $350.00 per month as of May 1, 2023, when he would begin to pay an additional $50.00 per month in reduction of the costs award. At that rate, the costs award would not be paid in full until approximately November 2035 – a period of roughly 12.5 years.
[105] What Mr. Crow is asking me to do is to relieve him from his obligation to pay child support, both retroactively and on an ongoing basis, in order that he might share funds that would otherwise be directed to child support with his creditors.
[106] I would have thought that it is by now axiomatic that a child support payor’s obligation to support his or her children comes before any obligation respecting other creditors. (Makkinga and Makkinga (No.2) (1980), 1980 1909 (ON SC), 28 O.R. (2d) 249 (Ont. Dist. Ct.), applying Reichel v. Reichel (1974), 1974 2197 (SK KB), 15 R.F.L. 157 (Sask. Q.B.)
[107] Notwithstanding, what Mr. Crow seeks is a reduction in the amount that he must pay, given his current reduced income. I will consider that when looking at his claim for a reduction in ongoing support.
Reduction in Ongoing Child Support
[108] According to the original separation agreement signed by Mr. Crow and Ms. Lassche, he agreed to pay child support in the amount of $546.00 per month commencing November 1, 2012, based upon an annual income of $60,000.00.
[109] Mr. Crow seeks to set that agreement aside and have it declared invalid. That will be a matter for trial.
[110] The financial evidence establishes that, in some years following the separation, Mr. Crow earned less than $60,000.00 per annum while in other years he earned more.
[111] At this point, it is not clear from the evidence whether Mr. Crow had other income sources in the years prior to 2019 because he did not produce his income tax returns for the years between 2012 and 2018, inclusive.
[112] Justice Campbell set ongoing child support for Mr. Crow at $697.05 per month. That payment was based upon an estimated annual income of $74,644.00 for 2019.
[113] Mr. Crow has produced evidence that his income for 2021, the last full year for which he has provided income tax information, was $66,611.18. An annual income of $66,611.18 produces a child support payment for one child in the amount of $621.00 per month.
[114] According to the affidavit of Ms. Lassche, Mr. Crow has not consistently paid his ongoing child support payments since Justice Campbell made his order on October 28, 2019.
[115] Her evidence is borne out by the Director’s Statement of Arrears, provided by Mr. Pentz. According to the records of the Director, since October 28, 2019, Mr. Crow has paid, voluntarily, $6,038.20 against his child support obligation. The last voluntary payment was made, according to the Director’s Statement of Arrears, on May 17, 2021.
[116] At this point, the only evidence that I have about Mr. Crow’s income for 2022 is his estimate of a yearly income, extrapolated from a one-page document appended to his financial statement sworn September 22, 2022 showing a net income from self-employment for the months of July and August 2022 of $3,275 per month.
[117] In my view, a two-month, unaudited, undocumented, typed entry on a single sheet of paper, which is appended to a sworn financial statement, does not provide sufficient evidence to establish Mr. Crow’s income for 2022.
[118] According to his evidence, he was employed by a masonry contractor from “the end of August 2021” until he was “terminated from this job in or about July 2022.” He paid no child support in that period.
[119] Mr. Crow produced no evidence of his earnings from his employer in the period between January 1, 2022 and July 2022 when he was terminated. Surely, whatever he earned from that employer should also be included when determining his 2022 income for the purposes of paying support.
[120] Consequently, I am not satisfied that I have sufficient evidence at this time to enable me to determine whether there should be a meaningful reduction in the amount of ongoing monthly child support payable by Mr. Crow to Ms. Lassche, on an interim basis.
[121] Accordingly, while I will not provide the relief sought by Mr. Crow in the form sought by him in his Notice of Motion, I am prepared to grant him some relief with respect to ongoing child support commencing January 1, 2022, based on him having had a lower income in 2021 than Justice Campbell based his ongoing support payments on in October 2019.
[122] I will also provide him with leave to renew only this portion of his motion once he has in hand his full income information for 2022.
Relief Concerning the Payment Of Arrears
[123] According to Justice Campbell’s endorsement dated October 28, 2019, two distinct events which are legally unrelated, but which Mr. Crow tied together, occurred in the past and played a significant role in Mr. Crow failing to pay child support.
[124] The first was that, while there had been difficulty for Mr. Crow in exercising access with M. in the period following the parties’ separation, on April 14, 2018 Ms. Lassche’s former counsel wrote to Mr. Crow and informed him that his access was “suspended” because he had not complied with certain terms in the separation agreement.
[125] The second was that, after receiving the letter, Mr. Crow “stopped paying any amount of child support.” As Justice Campbell noted at paragraph 30 of his endorsement dated October 28, 2019, “apparently, his view was that if he was not having access, he was not required to pay support.”
[126] While Justice Campbell did not comment further, the reality is that there is no connection between receiving access and paying child support.
[127] The financial information provided by Mr. Crow in his affidavit, if utilized to determine child support in accordance with the Child Support Guidelines[^2], would have generated monthly child support in the following amounts:
| Year | Child Support | Year | Child Support | Year | Child Support |
|---|---|---|---|---|---|
| 2012[^3] | $430.00 | 2016 | $670.00 | 2019 | $633.00 |
| 2013 | $316.00 | 2017 | $758.00[^4] | 2020 | $705.00 |
| 2014 | $500.00 | 2017 | $787.00[^5] | 2021 | $621.00 |
| 2015 | $557.00 | 2018 | $697.00 |
[128] Using these monthly support payments, it appears that, between November 1, 2012 and December 31, 2021, Mr. Crow would have had to pay child support in the gross amount of $64,857.00.
[129] Of course, he would also have received credit for the amounts that he did pay, whether voluntarily or not, over that period. If the amount he paid was less than the amount that he ought to have paid, the difference would be the arrears owing at December 31, 2021, not including any interest that might have been accumulated. Further arrears have undoubtedly accumulated since December 31, 2021, against which no payments have been made.
[130] According to a statement of arrears filed by the Director of the Family Responsibility Office in response to Mr. Crow’s motion, the Director has determined that the arrears of support owed by Mr. Crow at November 22, 2022 amounted to $17,925.58.
[131] Whether or not that figure will need to be adjusted as a result of this endorsement is a task for the Director and his or her staff to determine.
[132] The only issue that would affect the amount of arrears thereafter would be whether or not the original agreement was valid, which would substitute for the monthly figures generated by tan application of the Guidelines the amount agreed upon for child support in the parties’ separation agreement.
[133] By whatever measure, separation agreement or Guidelines, the court ultimately determines the amount of child support that Mr. Crow ought to have paid to Ms. Lassche over the years, I am satisfied that, at this time, Mr. Crow continues to owe arrears of child support.
[134] According to the affidavit of Ms. Lassche, Mr. Crow has paid nothing on arrears since Justice Campbell made his order on October 28, 2019. Again, her evidence is borne out by the Director’s Statement of Arrears.
[135] As the Supreme Court of Canada noted in Colucci, at paragraph 100, “child support arrears are a debt.”
[136] The priority of child support arrears over other judgment debts has been codified in the Creditors Relief Act, 2010, S.O. 2010, c. 16, Schedule 4, s. 2(3).
[137] The debts listed by Mr. Crow in his affidavit sworn September 22, 2022 are not judgment debts. Given that the arrears would have priority over those debts were they to have been converted to judgment debts, it makes sense that arrears would also have priority over them when they are not judgment debts. This concept is supported by the decisions in Makkinga and Reichel, supra.
[138] I have already determined that whether or not the child support arrears should be eliminated is a matter that should proceed to trial.
[139] What Mr. Crow seeks is a reduction in the amount that he must pay on those arrears pending trial, given his current, allegedly reduced income.
[140] As with his request to reduce ongoing support, I cannot determine whether Mr. Crow should have his payments on arrears reduced based on his 2022 income because it is not known at this time.
[141] However, Justice Campbell did set the payments on arrears in October 2019 in the amount of $400.00 per month based on an estimated 2019 income which turned out to be too high.
[142] At the time that Justice Campbell made his order in October 2019, the arrears, although then unknown to Justice Campbell, were estimated by the Director of the Family Responsibly Office to be $30,557.22.
[143] It now appears that, as a result of the adjustments resulting from Justice Campbell’s order of October 28, 2019, the arrears ought to have been approximately $10,000.00, according to the Director’s Statement of Arrears dated November 22, 2022.
[144] As a result, because Justice Campbell’s order of October 28, 2019 reduced the estimated arrears by two thirds at that date, I will proportionately reduce the monthly payment on arrears to $150.00, plus allow for an increase to reflect the fact that Mr. Crow made no effort since October 28, 2019 to make any payments on the arrears as Justice Campbell had ordered him to do.
[145] Therefore, effective December 1, 2022, on an interim basis, Mr. Crow shall pay $250.00 per month on arrears of child support, the final amount of which will need to be determined at trial or settled by the parties with court approval.
Amendment to the Costs Order of January 31, 2020
[146] In his order dated January 31, 2020, Justice Campbell ordered Mr. Crow to pay costs to Ms. Lassche in connection with the uncontested divorce hearing in the amount of $2,920.94, and costs in connection with the motion to set aside the divorce judgment in the amount of $4,604.75, for a total costs award in the amount of $7525.69. Those costs were to be paid in full by May 1, 2021.
[147] It appears that Mr. Crow has made no payments on the costs. Again, he cites his financial difficulties, but he does not provide me with full information as to his income. What I do know is that, in 2020 Mr. Crow, earned $75,623 and 2021 he earned $66,611.18.
[148] Justice Campbell gave Mr. Crow 16 months to pay the costs award. It is now 19 months beyond the date by which he was to have paid his costs. He appears to have paid nothing in reduction of the costs, nor does he claim that he did.
[149] The risk for Mr. Crow is in Ms. Lassche taking steps to execute against his assets in seeking to collect the payment of her costs. That appears to be a risk that he was prepared to run, and I see no reason, in the circumstances, to relieve him of that risk at this time.
Christmas Access
[150] During argument of the motion, Mr. Spiller, on behalf of Mr. Crow, asked that I make an order providing Mr. Crow with some parenting time in Barrie over the Christmas holiday. He suggested 3 days, one of which might be one of December 24 or 25 or 26.
[151] This issue was not raised in the Notice of Motion. Ms. Lassche did not respond to the request.
[152] Holiday parenting time is addressed in the Minutes of Settlement which will form the basis of my final order with respect to parenting time in the following language:
“…the Respondent father shall have parenting time with the child M. as follows…such other and further times as the parties may agree after consultation, including parenting time on….Christmas…”
[153] I was provided with no evidence that the parties had consulted about Mr. Crow having parenting time this Christmas. They should do so immediately.
[154] I will not make an order about this matter, but I do strongly urge both parties to agree that M. have some parenting time with Mr. Crow over the Christmas break, the driving for which should be shared, as it will be going forward under terms of my order.
Conclusion
[155] In the result, the following shall issue:
A final order which incorporates Paragraphs 1 through 9 of the Minutes of Settlement executed by the parties on October 14, 2022.
A temporary order containing the following provisions:
a. The Respondent’s monthly child support obligation for one child, M., based upon the Respondent’s 2021 annual income of $66,611.18, is set at $621.00 payable on the first day of each month, commencing January 1, 2022. Accordingly, ongoing child support in the amount of $621.00 shall be paid on the first day of each month until M. is no longer entitled to support or until further order of the court, whichever shall occur first.
b. The Respondent may renew his motion to adjust his ongoing child support obligation commencing January 1, 2022 upon production of his 2022 income tax return and his Notice of Assessment for the 2022 tax year.
c. The Respondent shall pay on arrears of child support, commencing December 1, 2022 and on the first day of each month thereafter, the sum of $250.00. The ongoing payments on arrears of child support shall continue to be made until the arrears of child support are eliminated.
The Respondent’s motion, originally returnable on October 14, 2022, and heard on November 25, 2022, is otherwise dismissed.
No costs are payable by either party to the other in respect of this motion.
Justice T. Price
Date: December 19, 2022
[^1]: Spousal support did not form part of this motion. [^2]: and if equal to his Line 150 or Line 15000 income on his annual tax return [^3]: Beginning November 1, 2012 [^4]: January to November, 2017 [^5]: December, 2017