NEWMARKET COURT FILE NO.: FC-19-58277-00 DATE: 20230217 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
J.G. Applicant – and – D.M. Respondent
Counsel: T. MaClean, Counsel for the Applicant Respondent – Self-represented
HEARD: February 13, 14 and 15, 2023
Reasons for Decision
Relief Requested
1On March 31, 2019 the Respondent filed a Motion to Change the final Order of Justice Jones dated August 10, 2016.
2On August 10, 2016 Justice Jones imputed income to the Respondent in the amount of $100,000 per annum and ordered that he pay child support to the Applicant, for the child A., in the amount of $880 per month commencing January 1, 2013.
Very Brief Factual History
3The parties are the parents of one child, A. born January in 2000.
4A. is now 23.
5The parties were never married and stopped residing together in 2002.
6On August 10, 2016 Justice Jones made the child support Order aforementioned.
7There was no Order for an apportionment of section 7 expenses in Justice Jones’ Order. The Respondent has not made a contribution to A.’s post secondary education section 7 expenses. The Applicant’s pleadings requested a determination of section 7 expenses, but she orally withdrew that claim.
8On May 16, 2022, by Order of Justice Bennett, and on the consent of the parties, the child support Order of Justice Jones was terminated effective May 31, 2022.
9Accordingly, the only issue before the court at this three-day trial is the issue of the arrears of child support.
10The arrears of child support are approximately $66,000.
Temporary Order of Justice Jones – June 22, 2016
11There are two Orders relevant to the 2016 determination of child support.
12In the penultimate court appearance before Justice Jones, on June 22, 2016, the following is noted in the transcript of the proceedings:
a) the Respondent did not want to give his name; b) the Respondent eventually provided his name stating: “So if we’re on the record in this proceeding, under duress, under threat, coercion, without granting jurisdiction, and with prejudice, my Christian appellation is D.M.”; c) the Respondent spelled his name for the record ensuring that his name was, with the exception of the first letter in both names, lower case; d) the Respondent requested disclosure from the Applicant including the following: i) Is it your claim that the entity named as, in capital letters, D.M. is a creation of law?; ii) Is it your claim that the entity named D.M. is a juridical person? iii) Is it your claim that I, D.M., am related to the entity named D.M. in capital letters? e) When the Court asked the Respondent if he continued to work as a golf professional, the Respondent answered: “How can I participate in this proceeding when I’m not a party to it?”; and f) The Respondent was ordered to serve a sworn Financial Statement, Income Tax Returns, Notices of Assessment, and three consecutive pay stubs before July 22, 2016.
Final Order of Justice Jones – August 15, 2016
13In the final appearance before Justice Jones, on August 15, 2016, the following is noted:
a) the Respondent attended court but did not serve and file an answer and did not serve and file the disclosure ordered on June 22, 2016; b) in his opening address to the court, the Respondent stated: “First of all, Your Honour, in this proceeding under threat, duress, coercion without granting jurisdiction and without prejudice my Christian appellation is D. capital D, lower case …., M., capital M, lower case, …..”; c) the Respondent declined duty counsel; and d) based on the evidence available, the court imputed income to the Respondent in the amount of $100,000 per annum and child support was set at $880 per month retroactive to January 1, 2013.
14It is noteworthy that the final Order of Justice Jones dated August 15, 2016 was not appealed.
15On February 10, 2017 Justice Jones made an Order that the Respondent pay to the Applicant costs of the Application fixed in the amount of $5,491.80.
Disclosure Obligation
16The Respondent has an obligation to provide disclosure. As has been stated succinctly in many decisions, disclosure is the most basic obligation in family law and it is immediate, automatic and ongoing.
17Section 21 of the Child Support Guidelines, O. Reg. 391/97, states:
Obligation of applicant
- (1) A parent or spouse who is applying for an order for the support of a child and whose income information is necessary to determine the amount of the order must include with the application,
(a) a copy of every personal income tax return filed by the parent or spouse including any materials that were filed with the return for each of the three most recent taxation years;
(b) a copy of every notice of assessment and reassessment issued to the parent or spouse for each of the three most recent taxation years;
(c) where the parent or spouse is an employee, the most recent statement of earnings indicating the total earnings paid in the year to date, including overtime, or, where such a statement is not provided by the employer, a letter from the parent’s or spouse’s employer setting out that information including the parent’s or spouse’s rate of annual salary or remuneration;
(d) where the parent or spouse is self-employed, for the three most recent taxation years,
(i) the financial statements of the parent’s or spouse’s business or professional practice, other than a partnership, and
(ii) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the parent or spouse does not deal at arm’s length;
(e) where the parent or spouse is a partner in a partnership, confirmation of the parent’s or spouse’s income and draw from, and capital in, the partnership for its three most recent taxation years;
(f) where the parent or spouse controls a corporation, for its three most recent taxation years,
(i) the financial statements of the corporation and its subsidiaries, and
(ii) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the corporation, and every related corporation, does not deal at arm’s length;
(g) where the parent or spouse is a beneficiary under a trust, a copy of the trust settlement agreement and copies of the trust’s three most recent financial statements; and
(h) in addition to any information that must be included under clauses (c) to (g), where the parent or spouse receives income from employment insurance, social assistance, a pension, workers compensation, disability payments or any other source, the most recent statement of income indicating the total amount of income from the applicable source during the current year or, if such a statement is not provided, a letter from the appropriate authority stating the required information. O. Reg. 391/97, s. 21 (1) ; O. Reg. 446/01, s. 7; O. Reg. 25/10, s. 5.
Obligation of respondent
(2) A parent or spouse who is served with an application for an order for the support of a child and whose income information is necessary to determine the amount of the order, must, within 30 days after the application is served if the parent or spouse resides in Canada or the United States or within 60 days if the parent or spouse resides elsewhere, or such other time limit as the court specifies, provide the court, as well as the other spouse, an applicant under section 33 of the Act or the order assignee with the documents referred to in subsection (1). O. Reg.391/97,s. 21 (2) .
18On August 15, 2016 when Justice Jones made the final Order imputing income to the Respondent and establishing the child support Order, the Respondent had not complied with his statutory disclosure obligation.
19On August 15, 2016 when Justice Jones made the final Order, the Respondent had not complied with the disclosure ordered by Justice Jones on June 22, 2016.
20On August 15, 2016 when Justice Jones made the final Order, the Respondent worked as a professional golfer.
Motion to Change
21It is noteworthy that the Respondent, between 2016 and 2019, made no voluntary payments towards his child support obligation. Not only did he not make the child support payments as ordered, he made no good faith payments of even a lessor amount.
22It is also noteworthy that the Respondent did not file his 2013, 2014, 2015, 2016, and 2017 Canadian Income Tax Returns until 2018.
23On March 19, 2019 the Respondent filed his Motion to Change.
24At the time he filed his Motion to Change, the Respondent, as required, also filed a Financial Statement sworn March 19, 2019. In that sworn Financial Statement, the Respondent claimed self-employment income of $28,344 per annum. There were two significant deficiencies with his Financial Statement:
(a) the statement of professional business activities was not attached; and (b) the significant gambling debts that he testified to were not reflected on the Financial Statement at all.
Request For Information – October 22, 2019
25The Applicant served a Request for Information on the Respondent on October 22, 2019.
Disclosure Order – November 15, 2019
26At the Case Conference on November 15, 2019, the Respondent did not attend because he was out of the country on business. He requested an adjournment, in advance, and that request was denied. The Respondent sent a lawyer on his behalf to speak to the matter. The matter was ultimately adjourned by Order of Justice Kaufman and the Respondent was ordered to provide the disclosure list marked as Schedule “A” and appended to the Endorsement. The disclosure was ordered to be provided prior to the Settlement Conference scheduled for February 18, 2020. The Respondent was also to provide information as to the nature of the work that precluded him from attending the Conference, including mode of transportation, cost of transportation, and cost of accommodations.
Disclosure Order – February 18, 2020
27At the Settlement Conference on February 18, 2020, Justice Kaufman noted that disclosure was incomplete. Justice Kaufman again ordered the Respondent to comply with the disclosure list marked as Schedule “A” and appended to the November 15, 2019 Endorsement, this time within 40 days. In addition, costs of $1,000 were awarded to the Applicant for the November 15, 2019 Case Conference and the February 18, 2020 Settlement Conference.
Request For Information – February 20, 2020
28The Applicant served a supplementary Request for Information on February 20, 2020.
29The matter was to proceed to a Trial Scheduling Conference on June 29, 2020, however, that event was adjourned because of restrictions on Court operations due to the pandemic.
Disclosure Order – January 11, 2021
30The next event was a Settlement Conference on January 11, 2021. The Respondent did not provide disclosure despite his statutory obligation to do so and two court Orders requiring same. On January 11, 2021, Justice Sutherland made a third disclosure Order:
(a) the Respondent had 30 days from January 11, 2021 to answer and provide the required documentation at set out in the Applicant’s Settlement Brief dated January 4, 2021; (b) if the Respondent did not wish to answer any of the items requested, he was to provide an affidavit with his reasons for not providing the information; (c) the Respondent was to provide a list of all documents he was providing; and (d) by March 19, 2021, the Applicant was to bring her motion, if she so desired, to strike the Respondent’s Motion to Change for failure to answer the ordered disclosure.
Motion to Strike - Disclosure Order – June 4, 2021
31On June 4, 2021 Justice Bruhn heard the Applicant’s motion to strike the Respondent’s pleadings for lack of disclosure. In her decision, Justice Bruhn had the following commentary:
a) This Court finds that the Respondent has not met his disclosure obligations. The Respondent admits as much in his Affidavit when he states that “most” of the disclosure was attached to his Settlement Conference Brief and that he has provided disclosure to the best of his ability.
b) This Court finds that there is a pattern of non-disclosure. This is evident from the numerous disclosure orders. Although the Respondent may argue that this is in part due to the fact that he was representing himself and did not understand his disclosure obligations, I note that he retained counsel to advise and represent him when it suited him, such as for the November 15, 2019 Court Case Conference when he was in Mexico at a golf tournament, and at this Court attendance where the Applicant is seeking to strike his pleadings.
c) This Court finds that there is significant outstanding disclosure which is necessary and relevant to these proceedings. As an example, the Respondent has yet to provide his 2019 or 2020 income tax returns. Income tax documentation is basic disclosure in a support case. He has not provided any documentation regarding his share(s) in the Club, despite the fact that there was a request for this disclosure over a year ago and despite the fact that he was speaking with the director of the Club only a few weeks ago and gathering information for this motion.
d) This Court finds that the Respondent has intentionally delayed these proceedings to gain a financial advantage. Given what the Court now knows about the timing and amount of the final payment on the share transfer, it is evident that the Respondent’s tactics in opposing the Applicant’s request for an urgent motion date and in stating that he could not have his responding materials ready until May 28, 2021 were intended to delay the hearing of this motion until after the payment had been made to him and he had been able to apply the funds as he saw fit.
e) This Court finds that the Respondent misled the Court when in his May 28, 2021 Affidavit he stated that he did not know when the payment for his share would be made. The payment was made one business day later. The suggestion that he didn’t know when he was going to receive the payment is unconvincing. The Respondent failed to state in his Affidavit how much he was going to get paid, however he stated that if the Applicant was paid all of the funds she would be significantly overpaid and he offered to pay her $20,000. Clearly the Respondent knew how much the payment was but chose not to include that information in his Affidavit.
f) Although striking pleadings is an extreme remedy and should only be done where no other remedy would suffice, based on the above noted findings, this Court is satisfied that it is just and appropriate to strike the Respondent’s pleadings. However, before doing so, this Court will provide the Respondent with one last opportunity to provide disclosure. If the Respondent fails to provide disclosure again, his pleadings will be struck. The Court is allowing the Respondent this opportunity because it is to the benefit of both parties that the issues be dealt with on their merits.
g) The Court reviewed the disclosure requested by the Applicant as attached at Schedule “A” to her endorsement. The Respondent assured the Court that he would be able to provide the disclosure or, for any disclosure he could not provide, proof of his efforts to do so, all within 90 days of today’s date.
h) The Court ordered the Respondent to pay to the Applicant costs of the motion fixed in the amount of $7,500 enforceable by the Family Responsibility Office.
32Justice Bruhn’s Order was the fourth disclosure Order since the Motion to Change was filed more than two years prior.
33The Respondent takes the position that he provided all the disclosure outstanding in the Order of Justice Bruhn.
34The Court finds that the Respondent did not provide the disclosure requested and required. Rather, the Respondent filed an affidavit sworn August 24, 2021, in respect of the disclosure. Examples of his lack of disclosure include:
(a) Example #1 DISCLOSURE REQUEST: to provide documentation from Clublink Academy, King Valley Golf Club and Kings Riding Golf Club which states whether the Respondent had an employment contract with each club, what his position is with each Club, how the Respondent’s remuneration with each Club is structured. ANSWER: Please find attached at exhibit “C”, the standard employment contract for independent contractors with Clublink Corporation. As mentioned previously, I am an independent contractor with Clublink. I receive no salary. All my lessons are split 80/20 as proven on the lesson reports filed.
(b) Example # 2 DISCLOSURE REQUEST: A breakdown of the $85,747 from the sale proceeds received on May 31, 2021 which were disbursed by the Respondent immediately after receiving these funds, including sworn statements from each debtor confirming the amount owing by the Respondent and the nature of the debt. ANSWER: I still have a debt with TD Visa for just under $12,000 and for CIBC VISA for just over $12,000. A total of approximately $24,000. I am still in debt to a 3rd party debtor from my gambling habits. No 3rd party debtors are willing to sign any sworn statements for personal reasons.
(c) Example # 3 DISCLOSURE REQUEST: A sworn statement from the Respondent as to why, on June 2, 2021 the balance of the sale proceeds ($35,000) were “in cash” and were being kept outside of the Respondent’s home and held by a third party, including the name of the third party as well as a sworn statement from the third party setting out his/her understanding as to why he/she had been asked to hold $35,000 in cash on behalf of the Respondent. ANSWER: The $35,000 was in cash because I cashed the cheque. The 3rd party wants to remain anonymous regarding making any sworn statement. The 3rd party was able to keep the funds in a more secure place than I could. I was not aware that I would distribute these funds immediately. My Motion to Change had not been heard so I set the funds aside.
(d) Example # 4 DISCLOSURE REQUEST: Documentation showing when the Respondent received a share in the York Downs Golf and Country Club. ANSWER: I have no documentation as to how many shares I received from York Downs G.C. I have not been a member of York Downs since my early 30s, some 25 years ago.
(e) Example # 5 DISCLOSURE REQUEST: Documentation showing the exact amount of remuneration paid to the Respondent or on his behalf for the initial payout sale of York Downs Golf and Country Club in August, 2015 or any time thereafter as well as records to establish where these sale proceeds were deposited upon receipt from York Downs Golf and Country Club. ANSWER: This question has been asked and answered in previous Settlement/Case Conferences. The proceeds were not deposited.
(f) Example # 6 DISCLOSURE REQUEST: Documentation showing the amount of remuneration paid to the Respondent or on May 31, 2015 from the sale of the Respondent’s share in York Downs Golf and Country Club, including a copy of the cheque and any letter/document from York Downs Golf and Country Club that came with the cheque. ANSWER: As mentioned in previous question, York Downs has not returned my calls. I received the cheque on May 31, 2021. I cashed the cheque. The court can ask this question to York Downs.
35These are just a handful of examples that illustrate very clearly the Respondent’s lack of disclosure despite his consent to provide the information and despite the many court Orders.
36The Respondent provided no independent evidence of his remuneration from teaching at golf clubs and he provided no information regarding the selling of his shares in the golf club.
37Pursuant to the order of Justice Bruhn, therefore, the Respondent’s pleadings were struck. However, it was not until trial that the Respondent’s non-compliance with Justice Bruhn’s Order became apparent.
Credibility
38The Respondent’s evidence at trial was problematic in the extreme. His evidence, at times, was inconsistent with the evidence he had just provided and much of his testimony was completely unbelievable.
39For example: the Respondent received a significant payment (in two installments) from the sale of his shares in York Downs Golf and Country Club. The amount of the payments are still unknown but he did receive two installments. The first installment was in 2015 where he received in or about $84,000 and the second installment was received in 2021 in the range of $120,000 - $138,000. The Respondent testified that he did not even know he had shares. He provided no documentation of the shares he had. With respect to the payment, the Respondent provided no documentary evidence. There was no letter to accompany the payout, no copy of the cheque, and no supporting documentation at all. Although the Respondent indicated that someone from York Downs Golf and Country Club would testify at trial, at the last minute he elected not to call anyone.
40A second example: the Respondent testified that he borrowed $34,000 to pay child support arrears. He provided no loan documentation, no confirmation of a transfer, and no terms for the loan. In terms of the name of the creditor, he was, again, evasive. He identified “Anthony” as the name of the creditor but could not provide a last name, taking the time to scroll through his phone while the court waited, but coming up empty. There was no corresponding bank account entry.
41A third example: The Respondent testified that he had only one bank account. However, when pressed to explain why the cheque from York Downs ($120,000 - $138,000 range) was not recorded in his bank statements, the Respondent stated that he cashed the cheque at Money Mart. The Respondent had no documentation to corroborate. And, despite the exorbitantly high fees associated with Money Mart cheque cashing, the Respondent stated, under cross-examination, that he simply wanted to cash his cheque there and he was entitled to do so.
42Much of the Respondent’s testimony was vague and evasive. For example, the Respondent’s Canadian passport was suspended by the Family Responsibility Office for non payment of child support. When asked how he was able to travel internationally, the Respondent stated that he had a travel letter. When asked if he had a passport from another country he refused to answer. The court directed the Respondent to answer the question. The Respondent finally stated that he also had a passport from Serbia.
43The Respondent’s Financial Statements sworn October 28, 2022 and February 9, 2022 were riddled with errors such that, under cross-examination, the Respondent admitted that the Financial Statements could not be relied upon.
44It is counter-intuitive to imagine that an individual, earning the modest amounts of money the Respondent claims, would need an accountant. For example,
a) for the tax year 2013, the Respondent claimed line 150 income of $5,667; b) for the tax year 2014, the Respondent claimed line 150 income of $9,756; c) for the tax year 2015, the Respondent claimed line 150 income of $2,712; d) for the tax year 2016, the Respondent claimed line 150 income of $6,873; e) for the tax year 2017, the Respondent claimed line 150 income of $1,643; f) for the tax year 2018, the Respondent claimed line 150 income of $16,524; g) for the tax year 2019, the Respondent claimed line 150 income of $19,830; and h) for the tax year 2020, the Respondent claimed line 150 income of $19,619.
45The Respondent listed his accountant as a witness but, at the last minute, elected not to call the accountant.
46It is counter-intuitive to imagine that an individual, earning the modest amounts of money the Respondent claims, would be unable to remember and demonstrate the significant payment from York Downs.
47The Respondent testified that he provides golf lessons at $145 per hour. He has never provided the Court with his statement of business expenses used for the purpose of determining his income taxes. When asked why his income received was not reflected in his bank statements, the Respondent, again, testified that he cashed his cheques at Money Mart. The Respondent did not have a single piece of paper to corroborate this evidence.
48The Applicant’s testimony was, by contrast, consistent and balanced. She provided answers that were straightforward and believable. I accept the evidence of the Applicant on all critical matters.
49I have determined that the Respondent’s evidence was self-serving and lacking in any credibility.
Material Change in Circumstances
50Pursuant to section 37 (2.1) of the Family Law Act, if the court is satisfied that there has been a material change in circumstances within the meaning of the Child Support Guidelines or that evidence not available on the previous hearing has become available, the court may,
a) discharge, vary or suspend a term of the order, prospectively or retroactively; b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and c) make any other order for the support of a child that the court could make on an application under section 33.
51I remain unconvinced that there has been a change in circumstances since 2016, material or otherwise. To the contrary, everything remains the same as it was in 2016.
52The Respondent worked as a golf professional in 2016.
53The Respondent works as a golf professional in 2023.
54The Respondent did not meet his statutory disclosure obligation in 2016.
55The Respondent did not meet his statutory disclosure obligation in 2023.
56The Respondent completely disregarded his court ordered disclosure in 2016.
57The Respondent completely disregarded his court ordered disclosure in 2023.
58The Respondent’s continuing lack of disclosure leads this court to draw an adverse inference.
59It is also noteworthy that the Respondent has not paid the cost Order of Justice Kaufman dated February 18, 2020.
60It is also noteworthy that the Respondent has not paid the cost Order of Justice Bruhn dated June 4, 2021.
61It is noteworthy that the Respondent did not pay the cost Order of Justice Jones until four years after the final Order and after he filed his Motion to Change.
62The Respondent’s behaviour in this and the previous court proceeding before Justice Jones is completely unreasonable. The Respondent’s demand for particulars were non-sensical and irrelevant. His initial refusal to provide his name was, no doubt, meant to obstruct the court process. His testimony regarding his “persona ficta” when using a name all in upper case was ridiculous and, no doubt, meant to distract.
63The Respondent’s refusal to follow court Orders and provide disclosure was willful and intentional. He has two cost Orders that remain outstanding. I agree with the conclusion reached by Justice Bruhn on June 4, 2021 that the Respondent misled the Court in May 28, 2021.
64The onus to establish a material change in circumstances rests fully on the Respondent. When asked what the material change was, the Respondent was very clear. Justice Jones got it wrong in 2016.
65I adopt the reasoning outlined by Justice Pazaratz in Trang v Trang, 2013 ONSC 1980, at paragraph 51:
“When a court imputes income, that’s a determination of a fact. It’s not an estimate. It’s not a guess. It’s not a provisional order awaiting better disclosure, or further review. It’s a determination that the court had to calculate a number, because it didn’t feel it was appropriate to rely on – or wait for – representations from the payor.”
At paragraphs 58 and 59:
“Imputed income matters. The reason why income had to be imputed matters. If an aggrieved party feels income was wrongly imputed, they can take timely steps to correct the original determination. They can appeal. They can bring a motion to set aside the order based on mistake or misrepresentation.”
66The Respondent did none of those things. By his actions and lack of action, the Respondent has done his very best to frustrate the court process. No doubt he caused significant legal costs to the Applicant as a result of his unreasonable litigation behaviour.
67The Respondent seeks a re-do. As stated by the Supreme Court of Canada in Colucci v. Colucci, 2021 SCC 24, at paragraph 63:
“Of course, a payor whose income was originally imputed because of an initial lack of disclosure cannot later claim that a change in circumstances occurs when he or she subsequently produces proper documentation showing the imputation was higher than the table amount for their actual income. The payor cannot rely on their own late disclosure as a change in circumstances to ground a variation order. This would defeat the purpose of imputing income in the first place and act as a disincentive for payors to participate in the initial court process.”
68The Respondent does not get a re-do.
Order
- The Respondent’s Motion to Change filed March 19, 2019 including his request to reduce the arrears is dismissed. While there is no longer any ongoing child support to be paid, all arrears owing remain fully payable.
- If the parties cannot agree on the issue of costs regarding this trial, I shall consider the request for costs. The Applicant shall serve on the Respondent and file electronically, through the Trial Coordinator, written submissions, limited to three pages, exclusive of the Bill of Costs and Offers to Settle within 20 days of the date of this decision. The Respondent shall serve on the Applicant and file electronically, through the Trial Coordinator, written submissions, limited to three pages exclusive of the Bill of Costs and Offers to Settle within 10 days thereafter. There shall be no right of Reply.
Justice G.A. MacPherson
Date: February 17, 2023