Court File and Parties

COURT FILE NO.: FS-08-339461-07 DATE: 20231120 ONTARIO SUPERIOR COURT OF JUSTICE

RE: Mariette Matos, Applicant -and- David Driesman, Respondent

BEFORE: FL Myers J

COUNSEL: Michael J. Polisuk, for the applicant

READ: November 20, 2023

Endorsement

[1] This is an uncontested hearing of a motion to change a final order made by Mesbur J. in 2010. The applicant submits that the final order for child support should be updated to reflect her children’s university education.

[2] This application displays one of the worst examples of abuse of the family law system that I have seen. The respondent has repeatedly and steadfastly refused to make disclosure of his income. He has brought a multitude of motions while refusing to perform his own obligations toward his marvellously successful children.

[3] The respondent has previously been prohibited from bringing any further motions without leave. His pleadings have been struck and this hearing ordered to proceed on an uncontested basis.

[4] The applicant is being very modest in seeking to impute income of only $240,000 (plus COLA increases) to the respondent. The amount comes from (a) the respondent’s commission income found by Centa J. in a separate proceeding not long ago; and (b) employment income based on the respondent’s history of employment in addition to his other auto parts and real estate development business interests.

[5] When a party refuses income disclosure in family law proceedings, it can be safely assumed that he or she knows that income can be imputed under the Child Support Guidelines. The refusal to disclose evinces an assessment by the litigant that he or she is likely better off with an imputed income than if the real income was known.

[6] The commission income from the auto parts business seems to be just the net income of the business. That is, there may be salary or other draws taken by the partners too. Plus, it appears that the respondent ran personal expenses through the business that ought to have been on his side of the income ledger. So the $120,000 imputation sought just for commissions from that business is likely quite low.

[7] So too with the remainder of the income imputation. The development business alone contributed to over $1 million being found in a bank account held by the respondent at a time when he said he could not afford to pay child support. Once again, it appears to have been the tip of the iceberg.

[8] In my view on the evidence adduced by the applicant, it is fair and reasonable to impute income to the respondent of $240,000 for calendar year 2015 rising by 3% cost of living each year thereafter as sought.

[9] The s. 7 expenses sought for the York School, summer camp, and university for the children are necessary and reasonable in light of their historical standard of living and their academic capabilities. The program in Rochester is unique and cannot be replicated at a lower cost. The fact that the child was accepted into and excelled in the program is a testament to her intellect and work ethic. The other child’s program, while impressive as well, could be provided in Canada at a more modest cost. The applicant rightly seeks to pass on to the respondent only the lower amount.

[10] Exhibit “D” to the applicant’s affidavit contains the details of the breakdown of the s. 7 expenses that I accept. For the years after the children started in university, the applicant also seeks table support for the summer months and one-third of the remainder of the year.

[11] Effective December 31, 2023, the respondent’s arrears will be $505,783.85. The breakdown of this amount is set out in the order that I sign today.

[12] There is a loose end to be tied up however.

[13] On October 10, 2023, the respondent sought leave to bring a motion to change of his own. He has been responsible to pay child support year-round although the children have been living away at university for several years. This was prima facie a valid adjustment to be considered in the re-assessment of his child support obligations in this proceeding. The applicant did so as reflected in para. 10 above and in the final order that I sign.

[14] The respondent moved for leave to commence his own proceeding having been excluded from this one. He had been prohibited from bringing motions on his own accord by order of Paisley J. dated June 22, 2017. That order reflected the respondent’s abusive steps up to that point and the need to bring order and fairness to the process.

[15] By order dated October 10, 2023, Akazaki J. granted leave to the respondent to bring his own motion to change as sought. The relief does not appear to be tied to the relief already before the court in this proceeding from which the respondent has been excluded due to his own wrongdoing. Instead, the court granted interim terms apparently dealing with pieces of child support sought to be changed by the respondent in a second proceeding. The court ordered:

1. The Motion to Change will be limited to the recovery of table child support payments for months when the children did not reside with the Applicant, either due to university residence or independent living as members of the workforce.
2. The period of retroactivity for the Motion to Change shall not extend to a period earlier than June 10, 2017.
3. On a forward basis, the Respondent’s monthly table child support obligations under the Mesbur Final Order shall only be payable during the months of May, June, July and August.
4. Unless circumstances change regarding the children’s completion of university studies, child support (table and s. 7) shall end on May 1, 2025, for Devin Alexander Liam Matos Driesman and on May 1 2026, for Victoria Samantha Matos Driesman.

[16] The order granting leave to bring a proceeding seems to have resolved both the period of retroactivity and the date of termination of child support with finality. The order then imposed an interim change to Justice Mesbur’s final order for child support to immediately reduce the respondent’s ongoing obligations to reflect the fact that the children are living away at school most of the year.

[17] The motion before my colleague was a motion for leave to bring a proceeding. Nothing else was properly before the court.

[18] The Divisional Court has made clear that interim changes to final orders in family law should not be made except in compelling circumstances. S.H. v. D.K., 2022 ONSC 1203. While that was a case that dealt with parenting issues, in Pham v. Ho, 2022 ONSC 1625, Diamond J. made clear that the same rationale applies to motions to change support orders. Justice Diamond wrote:

17. I see no compelling reason to avoid using the same approach when dealing with a temporary request to vary existing final support orders. The Applicant has engaged this Court’s jurisdiction to assess the merits of her request to vary the Paisley Order on a permanent basis. That request requires a fulsome, thorough hearing by way of a long motion (in the Toronto Region). If this Court is to implement an “immediate change” to the existing support arrangements in the Paisley Order, the Applicant must demonstrate, at a minimum, the existence of compelling and exceptional circumstances to warrant that temporary variation.

[19] Instead of a thorough assessment of the merits of the child support issues between the parties in this proceeding, the recent order adjusted one piece of the child support obligation on an interim basis. The respondent has now had his ongoing support obligations decreased without any reference to the fact that he owes tens of thousands of dollars in arrears and that literally hundreds of thousands of dollars in s. 7 expense arrears are claimed in this motion to change.

[20] Moreover, I respectfully dissent from the view expressed by my colleague that:

Despite this apparent history of abuses of process, the court must resist sweeping this next step under the same rug. No step is presumed abusive, vexatious, or estopped, if it is the first time the litigant has come to court on a particular issue.

[21] This is a very disjointed view of legal proceedings that are designed to do justice between the parties. Each step has a context as part of a greater whole. In fact, the history of abuse found by so many judges is a highly relevant factor in assessing each new step. That does not mean that no new step can ever succeed. But considering the context of individual steps in a proceeding in relation to the proceeding as a whole is fundamental to the quest for justice.

[22] Ensuring that steps in a proceeding are considered in the context of the litigation as a whole is not sweeping anything under the rug. In fact, as I understand that term, it is ignoring the prior abuses that risks sweeping them under the rug. A review of the interests of justice on a motion requires a consideration of the motion in the context of the litigation as a whole. Hryniak v Mauldin, 2014 SCC 7, at para. 60. As discussed in S.H., taking a holistic and contextual approach is required to do justice on the merits between the parties. Dambrot J. held that a stringent test was needed before making interim orders on motions to change final orders because, among other things doing so:

(i) ensures that important and difficult decisions relating to a child’s best interests are not, save for exceptional circumstances, made on the basis of incomplete information, [and] (ii) limits the amount of judicial resources that are allocated to cases which have already been resolved by way of a court order…

[23] The fact that the respondent needed leave to bring his motion itself says something. It means that prior experienced family law judges required each succeeding judge to consider whether a proposed step may be a continuation of a serious pattern of abuse that led to the imposition of the leave requirement and the striking of the respondent’s pleadings in the first place. If no step can be seen to be improper on its first time up, leave requirements like the one imposed here, the one available under Rule 37.16 of the Rules of Civil Procedure, and the one routinely imposed on vexatious litigants under s. 140 of the Courts of Justice Act are all for naught.

[24] As far as I can tell, despite leave having been granted to the respondent to bring a new or separate motion to change, there is nothing left to hear or decide in a such a proceeding. All of the issues that he proposed to raise were already subsumed in the existing motion to change brought by the applicant in which the respondent’s pleadings have been struck and this uncontested trial resolves in the order signed today.

[25] The applicant is entitled to costs of $9,000 as sought. The amount is fair and reasonable in face of the detailed affidavit and preparation required for this uncontested trial.

FL Myers J Date: November 20, 2023