Court File and Parties

Court File No.: FS-19-00007716-0000 Date: 2023-02-13 Ontario Superior Court of Justice

Between: Sandra Vo, Applicant And: Peter Voong, Respondent

Counsel: E. Sadvari and H. Fisher, for the Applicant G. Borean and G. Matteazzi, for the Respondent

Heard: January 24, 2023

Akazaki, J.

Reasons for Decision

Introduction

[1] Several years ago in this protracted divorce case, the court ordered support for the wife and for three children, as well as parenting time for the father. The respondent husband has brought a motion seeking to vary these temporary court orders, (1) to reduce his child support payments and arrears, and (2) to increase his parenting time. He also seeks an order regarding parental decision-making as part of his request for increased parenting time. His grounds for the motion are that there have been material changes in circumstances.

[2] The two parts of the motion are unconnected, except in one respect. As a result of arrears in the support payments, the Family Responsibility Office (FRO) has suspended the husband’s driver’s licence. It has been difficult for the husband to observe his parenting schedule except for Sundays, when a friend is able to drive him to the wife’s residence. The wife has attempted to score points from this, claiming that he should not obtain more parenting time if he has not exercised his current allotment. There is case law supporting this argument. If the husband’s account of his change of circumstances proves correct at trial and he has in fact has had no means to pay the mounting arrears, the children’s lost time with their father is something they will never regain. In fact, the wife consented to the lifting of the suspension during the hearing.

[3] On consent of the wife, pending my decision in this motion, I granted leave to the husband pursuant to s. 35(10) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, to bring a separate and further motion for an order that the FRO refrain from suspending the driver’s licence. This measure, if granted, would at least enable the husband to fulfil the full extent of his parenting obligations. Ordinarily, I would not give effect to a parent’s waiver of enforcement of child support because such support belongs to the children. This does not amount to such a waiver, since the amendment of the refraining order would not affect the FRO’s garnishment of the father’s income.

[4] The part of the motion dealing with the child support does not entail an actual change in circumstances. Rather, there is “new” expert evidence interpreting what the circumstances were at the time of the 2019 orders. Under s. 15.1(2) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Suppl.), the practice of ordering interim child support at an early stage in divorce proceedings, either on consent at a case conference or on motion, provides a rough-and-ready basis for approximating the level of support required to shelter children from the economic fortunes of marriage breakup. Parties cannot ask the court to revisit past interim rulings by filing interpretive material in the guise of fresh evidence. For the reasons below, I dismiss the motion to vary the interim child support, including arrears. Neither reducing the support nor keeping it as is will alter the fact that the Respondent is only paying what can be lawfully deducted from a monthly disability cheque.

[5] In contrast, a considerable amount of water has flowed under the bridge, when we look at the circumstances relevant to the father’s parenting arrangements. Unlike the motion to vary child support, any formal considerations regarding the discouragement of multiple motions to adjust parenting arrangements are subordinate to the best interests of the children. The Divorce Act, s. 16(1), is categorical on this point. I will grant the request for an increase in parenting time for the father, as well as stipulated joint parental decision-making.

Issues and Applicable Law

[6] The two orders under consideration are the March 22, 2019, order of Justice Horkins and the August 29, 2019, order of Justice Myers. (The notice of motion referenced a March 22, 2021, order of Justice Horkins. I could not find such an order in the motion materials and assume that “2021” was a typographical error.)

[7] The first order granted the husband parenting time on Monday evenings at the wife’s home, Friday evening Scouts meetings, and Sunday during daylight hours. The husband now seeks to vary the Friday and Sunday portions to alternate weekends from Friday at 7:00 p.m. to Sunday at 7:00 p.m. The order was silent on the issue of decision-making for the children. The second order imputed a $400,000 of annual income to the husband and $40,000 to the wife. It also provided that the parenting schedule could not be changed until there was an assessment of the needs of the children pursuant to s. 30 of the Children's Law Reform Act, R.S.O. 1990, c. C.12 (CLRA). The husband asks that the variation be made, even though the s. 30 assessment has not been obtained.

[8] The result of the income attribution has been that the husband’s defaults in child support and spousal support have ballooned into arrears of over $700,000 over the course of about three years. The husband seeks a reduction of the monthly amount and a retroactive reduction or elimination of the arrears. He has filed evidence that his income was only a fraction of that amount prior to Justice Myers’ order, and that he currently lives on a modest disability benefit at or near the poverty line.

[9] There are alternative items of relief stated in the notice of motion, but given the remedy ordered I do not propose to delve into them.

[10] Both issues in the motion for variation require consideration of the change in circumstances doctrine applicable to family law matters before this court. The parties did not dispute the legal requirements as stated in the case law, that there is a high threshold for motions to vary interim orders, in order to discourage a motions culture in family court.

[11] I do not consider the principles described by this court and appellate courts to imply lack of flexibility. The process of this court is ultimately based on discretionary powers. Moreover, the principles must be applied differently to the two subject matters. Under s. 15.1 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), child support orders are governed by guidelines and enumerated factors intended to shield children from economic fluctuations. Under s. 16, parenting time and a child’s contact with a parent are governed exclusively by the best interests of the child. The public policy objective common to both provisions, of lessening the impact of marital breakdown on children, requires some inflexibility on the s. 15.1 interim support piece and gradual movement under s. 16 toward dual parenting.

[12] The test for variation motions must reflect the fact that Parliament has spoken and requires the court’s precedents to be interpreted in accordance with statute. Under s. 17, the statute confers a wide discretion to consider requests for variation of final orders, but not interim orders: Colucci v. Colucci, 2021 SCC 24, at para 29. The Supreme Court in this decision also cites a common-law rule that retroactivity cannot extend beyond three years prior to formal notice: idem, at para. 91. This court has exercised its inherent jurisdiction to amend interlocutory orders, subject to the admonition that Superior Court judges should not encourage parties to bring them: Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689, at para 18.

Facts

(a) Chronology

[13] There is no genuine dispute over the essential chronology, even though some of the details are contested.

[14] The parties were married on August 10, 2019. There are three children of the marriage, ages 6, 8 and10. The date of separation is disputed, whether it was in 2017 or in 2018, for reasons that may bear an impact on the corporate-financial issues at trial. On March 22, 2019, Justice Horkins made the first interim parenting order. It provided access to the children on Monday evenings at the Applicant’s home, Fridays with one child to attend Scouts, and Sundays with the children during the day away from the Applicant’s home.

[15] In May 2019, the police laid criminal charges against the husband when the wife lodged complaints of domestic abuse that, she said, occurred in 2015 and 2017.

[16] On August 29, 2019, Justice Myers made the child support order based on imputed income, as well as the order postponing any motion to vary the parenting schedule pending the s. 30 assessment. The only other order regarding parenting was a requirement that the mother not enroll the children in new activities during father’s access time, without his prior consent (not to be unreasonably withheld). The rationale for the s. 30 assessment and reluctance “to change the current access schedule yet” (italics mine) was the serious nature of the allegations against the father that led to the husband’s arrest.

[17] From January 2020, the husband began to suffer deterioration of eyesight. In October 2020, he or his counsel obtained accounting reports indicating that the valuation of the corporate assets and income were substantially lower than as considered by Justice Myers. Later in 2020, the assets were entirely dissipated, at least in the hands of the husband.

[18] On December 23, 2020, a member of the husband’s legal team, Mr. Scott Rosen, was fatally struck by a vehicle driven by the wife’s mother. Although the police originally considered it an accident, the wife’s mother was later charged with murder and denied bail. The husband cites the wife’s conduct in sheltering the mother prior to arrest, and an offer of bail as pertinent to the wife’s credibility and character. (I suggested that the wife’s acts could also be considered as conduct in extreme circumstances, counsel for the husband agreed that this also could be a reasonable explanation.) Counsel for the husband candidly stated that the alleged murder was not a factor in the ability of the husband to provide financial disclosure or his ability to regain employment.

[19] On December 29, 2020, the husband received a diagnosis of a serious heart condition.

[20] On January 11, 2021, the Crown withdrew the charges against the husband. The wife relies on an email from the Crown attorney, Patrick Clement, stating his opinion that there was a reasonable prospect of conviction, but that the withdrawal was due to procedural issues. The email was not sent to the wife directly, but to someone at his office with the introductory words, “Please feel free to share this e-mail with Ms. Vo.” I make no findings with regard to the validity of the assault allegations. The children have been with the husband on Sundays, unsupervised. No further charges have been brought. The husband is innocent, until proven otherwise. I have more to say about this email later.

[21] A motion very similar to this one, brought in December 2020 and returnable February 23, 2021, was withdrawn during this time period because of the death of Mr. Rosen. (The only significance of this is the date of notice of a request for variation in this motion would not be barred by the “three-year” rule cited in Colucci.)

[22] In a September 2021 bail hearing, the wife tendered a sum of money to be a surety for her mother in the homicide case. (The funds the wife put up for the bail application may have indicated grounds for imputing income to her, but this appears to have been a stretch.)

[23] Between 2021 and the present, the husband contends that he is substantially disabled and is on a disability income. He states there is no explanation from the wife why she is not earning upwards of $90,000 per year.

[24] A November 2022 trial date was postponed at the wife’s request, due to change of counsel. The parties now have an October 2023 trial date.

(b) Parties’ Position regarding Change of Financial Circumstances

[25] The husband has filed information in the form of accounting reports showing his income averaged approximately $161,000 per annum in the 2017-19 period, and $137,000 in 2019. This would have reduced the child support to $2,859 per month and the spousal support to $378, based on DivorceMate calculations from the statutory tables and guidelines.

[26] Whatever one makes of the above figures, his current income is asserted as $21,939 per annum, consisting of disability benefit payments. If this is truly the only income available to him, he has no means to pay the support at a rate of $2,859 per month, let alone pay down the mountain of arrears.

[27] The wife is a physiotherapist but is also not currently employed. The husband seeks to impute income to her, on the basis that she can be employed. The wife’s income is not relevant to the issue of child support, since the father’s parenting time does not even approach the forty percent for the balancing exercise under s. 9 of the Federal Child Support Guidelines, SOR/97-175.

[28] The wife’s position is that the courts, as described in the case law cited above, have set a high bar for motions to vary interim support orders. Since such an order cannot be appealed without leave, the presumption is that interim orders are intended to remain in place until trial. Moreover, the principle of stability places the burden of fluctuations in families’ economic fortunes on the parents in order to shelter the children in an already tumultuous period in their lives and their personal development.

[29] The wife points out that there remain significant gaps in the husband’s financial disclosure, and there remains no cogent explanation why the accounting reports could not have been obtained prior to the 2019 support orders. In sum, there has been no momentous intervening event. The husband’s assertions of dissipated assets remain clouded by the involvement of his relatives as transferees of certain corporate assets. The wife has contended that the husband’s reorganization of corporate holdings amounts to a shell game. At trial, she contends, the husband’s money and income sources will be revealed.

(c) Parties’ Positions regarding Parenting

[30] The husband seeks more time with the children, in particular changing the Friday and Sunday times to alternating whole weekends. He asks that the condition placed by Justice Myers requiring a s. 30 assessment be waived as an impediment to obtaining this change. He also asks for an order requiring joint decision-making.

[31] The husband has indicated he was an equal caregiver of the children, before the matrimonial proceedings. Currently, he only sees the children on Sundays because his friend is able to help drive him to the wife’s home. The husband’s driver’s licence is suspended because of the FRO enforcement measures. Counsel for the wife acknowledged the fact by stating that the father’s credibility is in issue because he has, on occasion, driven the children while his licence has been suspended.

[32] The evidence on the licence suspension was limited to exhibits attached to the husband’s affidavit, showing that this court did previously issue a refraining order on May 5, 2021. The order did not vary Justice Myers’ support orders but did make a refraining order conditional on payment of $5,000 per month and $1,000 on account of arrears. Based on the information supplied by the husband on the motion, the condition would not have been met and presumably the FRO would have directed suspension of the licence.

[33] Although the timelines for revisiting the suspension are long expired, the husband may rely on s. 35(10) of the Family Responsibility and Support Arrears Enforcement Act, 1996, to bring a motion to change the conditions in the May 5, 2021, order. The material change in circumstances may well be the consent of the wife, provided during the hearing of this motion, to a blanket lifting of the licence suspension, in the interests of the children’s time with their father. In order to facilitate the motion and to preserve the court’s jurisdiction under s. 35(10), the disposition of the motion to change the support shall be suspended for a period of 30 days beyond the date of release of these reasons for decision. Since the issue was not directly before me and the Director of FRO was not a party to the motion, I do not make any determination whether the wife’s consent is or is not a material change in the payor’s circumstance. My purpose here is simply to renew the court’s jurisdiction to hear such a motion.

[34] The wife did not really have an answer to the husband’s request for a greater parenting role, apart from opposing it on grounds similar to the legal argument against varying interim support, viz. there has been no significant change in circumstances. The wife also cites the absence of a s. 30 assessment as ordered by Justice Myers.

Analysis

(a) Motion to Vary Support Orders

[35] The circumstances surrounding the dissipation of the corporate assets once controlled by the husband are shrouded in a fog of contested evidence and alleged incomplete disclosure. The corporate holdings disclosed to the court when the 2019 support orders were made showed significant income. Justice Myers considered a large volume of documents pertaining to the husband’s reorganization of the companies in 2017. There was already an effort to submit a value for these assets and income therefrom, which effort was unsuccessful in 2019.

[36] Following those orders, the husband has produced reports from an accounting firm reducing the values of the shares and income. The wife contends that the assets were transferred to family or other proxies to avoid the reach of the remedies available to her in this court.

[37] It is unclear whether the information relating to these assets tie into the husband’s medical condition and present circumstances as a recipient of disability benefits. The husband’s motion affidavit attached, in addition to medical records, a report of his family physician summarizing his patient’s current medical difficulties as they relate to his ability to obtain new employment. The wife’s counsel objected to the use of the report because it did not constitute sworn evidence of a participant expert pursuant to rule 20.2. Rule 20.2, especially subrule (14), pertains to the use of such expert evidence at trial. It does not affect the ability of a party to tender evidence from a doctor in the form of a report, pursuant to s. 52 of the Evidence Act, R.S.O. 1990, c. E.23. That provision was originally enacted to treat a signed doctor’s report as an exception to the requirement for sworn testimony, unless cross-examination was required. The rationale was based on the public policy against disturbing health practitioners providing services to the public. I therefore considered the evidence in the doctor’s report, as corroborated by other medical records submitted by the husband, to support his contention that his health has impeded his ability to seek new employment or a new business venture. The medical evidence does support the fact that the husband is receiving a disability benefit.

[38] There could be some utility in sifting through all the information forensically, but that is not the function of this court on a motion to vary a support order. The accounting and valuation reports further interpreting the data before Justice Myers do not amount to a change of circumstances if the husband had already set the reorganization of the business in motion.

[39] Although there is no evidence on the point, I did ask counsel for the respondent whether the alleviation of the staggering debt could assist the husband in obtaining a loan or capital to start a new business or other form of employment or enterprise. The court was advised, in all candour, that the husband was not advancing such a purpose for the requested variation in the support orders and amounts of arrears. He simply wants the obligation lowered so he had a more realistic target. I do not know how realistic a target based on $161,000 of annual income could be, if he was now bringing in only $21,000.

[40] If, after hearing expert evidence tested by cross-examination, the court were to find the actual income to have been lower than the basis for the interim support order, the court has the full authority to make these findings and reduce the amount of the arrears.

[41] If I were to vary Justice Myers’ order based on a change of circumstances, it would have to be based on some findings of fact that may become fodder for an argument at trial that the findings are binding on the trial judge or that Justice Myers’ provisional order was somehow based on a misapprehension of facts. Absent a compelling reason to believe that varying the order would materially change the status quo, I decline to insert myself in a fact-finding role best performed by the judge presiding at trial. Either the husband has tried to put a pile of wealth beyond reach, or the pile itself no longer exists. While this question represents the tug of war between the parties, the only way for one party to be left holding the rope is to prevail at trial. A variation motion cannot amount to a proxy summary judgment motion. This part of the motion is hereby dismissed.

[42] Some concern was raised by counsel for the husband that the wife will assert that the court should draw an adverse inference from the husband’s failure to pay arrears on the interim awards and on the survival in this motion of the interim order. It is settled law in Ontario that interim and interlocutory orders do not dispose of substantive rights: Hendrickson v. Kallio, [1932] O.R. 675. The trial judge is required to consider the evidence de novo and the prior interim order cannot be accorded any weight. If it is of assistance to the parties and to the trial judge, I state categorically that my order declining to vary Justice Myers’ order should not be interpreted as fettering the fact-finding authority of the trial judge, or as my interpretation of Justice Myers’ order beyond its existence as a provisional order made on a provisional assessment of evidence. No time, money or effort should be wasted by either side on interpreting the colour of smoke that emerges from lighting a copy of my Reasons for Decision on fire. Nothing should be read into the dismissal of this part of the motion.

(b) Motion to Vary Parenting Orders

[43] Before considering the motion to vary the parenting time, I must consider whether the existing procedural requirement to conduct a s. 30 assessment is an impediment to this motion. Justice Myers reasoned that it would be helpful to the court to have the report from a clinical assessor, because of the allegations leading to charges against the father. Those charges have since been withdrawn. Given the modest and non-disruptive nature of the proposed changes to the schedule, it seems the mother’s argument raising the s. 30 assessment as a precondition is more tactical than it is genuine. The Crown’s withdrawal of the charges must be considered a material change in circumstances.

[44] I cannot give any weight to the email from the Crown attorney advising the mother about the merits of the charges against the husband. He knew the email would find its way into this court record and would be employed tactically in the matrimonial case. See the Law Society of Ontario’s Rules of Professional Conduct, r. 5.1-1, commentary 5. This is a court of law. His opinion that another court of competent jurisdiction would have convicted the husband does not belong here. Crown attorneys have a quasi-judicial duty to protect the administration of justice from being pelted with detritus.

[45] Time itself can erode the necessity of legal steps. Three years of parental visits without incident have certainly removed the edge from the urgency of a s. 30 assessment. In the meantime, every interval of time depriving the children of the benefit of two parents to nurture them is potentially harmful. If it turns out the father’s financial situation is as dire as he asserts, the requirement of an expensive clinical assessment could turn out to have worked an injustice.

[46] This reasoning operates a fortiori if the necessity for the assessment has waned by the experience of years of Sunday visits without incident. The provisions of s. 30 of the CLRA provide for the court’s appointment of a qualified assessor to report on the needs of a child and the ability and willingness of the parties to satisfy those needs. The necessity of a s. 30 assessment therefore appears to have passed the expiry date of its usefulness. I do not consider the s. 30 assessment to have been installed in a procedural order to become a de facto obstacle to any step needed for the best interests of the children. Rather, the proviso in Justice Myers’ earlier ruling was made to protect the children according to the exigencies of the moment. I therefore consider the motion on the basis that s. 16 of the Divorce Act will take precedence over the previous requirement of a s. 30 referral.

[47] Multiplicity of motions remains undesirable and should be avoided. Yet I agree with counsel for the husband that this motion would likely not have been necessary if the trial had not been adjourned at the wife’s request. The reality is that the children’s limited time with their father must have taken its toll on the children, especially during the Covid-19 pandemic. The time between now and October, measured as mere months by grown-ups, represents a proportionately larger interval for the children as a fraction of their young ages.

[48] Every day, this court considers evidence of children being neglected by parents, disproportionately by fathers. The comings and goings by fathers are cited as destabilizing influences, and mothers are rightly concerned that the children should be spared the heartache of disappointment. The only substantive argument raised on behalf of the wife in this motion was that the husband had not taken advantage of all the times in the week he was allotted. And yet it was also pointed out, as a mark against the husband, that he would occasionally risk being caught driving while his licence remained suspended, to fulfil his parenting time appointments. The illegality of such conduct does not go to the safety of his driving. The matter of ticketing for provincial offences is not within the jurisdiction of this court. This conduct was evidence of his resolve to have a larger role in his children’s upbringing.

[49] The legal test for changing parenting orders is not so inflexible that the interests of children must be shoehorned into rules-based limitations of a court concerned about a motions culture. Indeed, interim orders intended to preserve the status quo while the lifespan of a family law case remains relatively short can lose relevance to the family situation over the course of several years. Let it not be forgotten that, in addition to the year’s delay to trial arising from the wife’s change of counsel, the original iteration of this motion was abandoned after the wife’s mother allegedly murdered one of the husband’s lawyers. While it would be wrong to associate the wife’s mother’s alleged conduct with the wife, that extreme and bizarre event had a role in extending the length of this proceeding beyond what judges consider when making interim parenting orders. The law’s delays can sometimes effect changes in circumstances by dint of their inordinate length alone. The children have gone for more than three years without knowing what it is to spend a weekend with their father. We all need to take a moment to think of what that has meant to the children. The children need both parents to understand and cope with the ordeals of this case. Both parents are available to parent, and so they are both duty-bound to do it.

[50] I therefore conclude that the best interests of the children entail an expansion of the father’s parenting time to include alternate weekend stays, and I exercise my discretion to make the order requested.

[51] The orders in question did not provide for decision-making regarding the children as being the exclusive purview of the mother. The request for relief on this point seems to be a corollary to the father taking on the parental role on alternate weekends. It makes sense to cloak him with full parental authority during those times, and to give him at least a limited say in all major decisions.

Conclusion

[52] I will dismiss the father’s motion to vary the child support obligations and grant his motion to vary the parenting arrangements.

[53] The dismissal of the motion to change the support shall be suspended for a period of 30 days beyond the date of release of these reasons for judgment, to permit the Respondent to seek an order on notice to the FRO Director to vary the May 5, 2021, refraining order.

[54] The parenting schedule set out in the order of Justice Horkins, dated March 22, 2019, shall be changed to replace items 8 b and c (the Friday and Sunday portions) with alternate weekends from Friday at 7:00 p.m. to Sunday at 7:00 p.m. If the parties cannot agree upon a start to this amended schedule that suits their convenience, the father’s first weekend shall start on Friday, March 3, 2023.

[55] The parents will have joint decision-making authority over the children. Each parent shall have primary authority during the times she or he is looking after the children. The father will be consulted on all major decisions such as schooling and consent to invasive medical treatment, but the mother shall have the final say unless further ordered by the court.

[56] The ordinary costs rules would suggest that the party who came out of the motion in a better position than if the motion had not been brought should obtain an award of costs. However, there were two distinct issues in this motion. My inclination is to award no costs, on the basis of a divided result. If either party believes they should be awarded costs, they each have ten days to file submissions of no longer than two pages each, within ten days hereof. Responding submissions of no longer than one page may be filed in the same manner, within five days of the filing of the first submissions. The submissions shall also be sent to my judicial assistant.

Akazaki, J. Released: February 13, 2023