Court File and Parties

COURT FILE NO.: FC-14-FO-792(1)

DATE: 2023/11/23

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: MICHELLE PORTER, Applicant

AND:

JOHN KIK, Respondent

BEFORE: Justice J. Breithaupt Smith

COUNSEL: Applicant is Self-Represented

G. McLeod, Counsel for the Respondent

HEARD: November 15, 2023

ENDORSEMENT

Scope and Materials

[1] This is the Respondent’s motion seeking to reduce his child support obligations effective July 1, 2022 and for security for costs (together with costs of this motion). Conferences have been held in this matter and thus there is no issue of urgency. The Applicant did not respond to this motion and so it was initially addressed as an unopposed basket motion and set before Justice Gordon in Chambers on September 12, 2023. His Honour ordered that a short hearing of one hour’s duration be scheduled because of the nature of the relief sought. The first hearing date was booked on October 25, 2023 but was before Justice Piccoli who had provided opinions and thus was conflicted. Hence, this matter was before me on November 15, 2023.

[2] I have reviewed the Respondent’s Notice of Motion and Affidavit, both dated July 4, 2023 and the Factum prepared on his behalf dated October 20, 2023. No materials have been filed by the Applicant, and she did not attend either on October 25th or before me on November 15th.

[3] Throughout the balance of these reasons, I refer to the Applicant as “Mother” and the Respondent as “Father.”

Issue #1 - Child Support

Law

[4] The parties were married, and therefore the Divorce Act and the Federal Child Support Guidelines apply.

[5] Section 17(4) requires the court to be satisfied that a change in circumstances has taken place before entertaining any variation of the existing support arrangements for children.

[6] Section 2(1) defines “child of the marriage” (for whom support is payable) as:

… a child of two spouses or former spouses who, at the material time,

(a) is under the age of majority and who has not withdrawn from their charge, or

(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.

[7] Section 3(2) of the Federal Child Support Guidelines addresses children over the age of majority:

(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is

(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.

Evidence and Discussion

[8] The parties are parents to four children, three of whom are now over the age of majority.[^1] Because the Divorce Act specifically addresses the age of majority as a trigger point for the review or adjustment of child support obligations, it constitutes a sufficient change in circumstances to underpin a variation order.

[9] Father seeks to reduce his child support obligation to provide ongoing support for their youngest child, Daniella (16). He submits that the eldest three children are presumed to be able to withdraw from Mother’s charge and provide for themselves, at least as of July 1, 2022[^2], as no evidence has been produced to the contrary.

[10] The parties’ second child, Isabella (21), completed high school in June of 2020. She allegedly suffers from “post-concussion syndrome” as a result of one incident that took place in Father’s care and a subsequent incident that took place at school, the details of which have not been disclosed to Father. She resides with Mother, earned $23,471 in 2020 and $18,272 in 2021, and attended school on a full-time basis in the Fall of 2021. It is undisputed that Isabella works, attends school (sometimes on a part-time basis and at various institutions) and drives a vehicle. No evidence has been provided regarding Isabella’s medical diagnosis or prognosis. No evidence regarding Isabella’s school attendance has been provided after July 1, 2022.

[11] Joseph is 19 years of age and completed high school in June of 2022. He resides with Mother and has Tourette’s Syndrome and a learning disability. Father attests that these diagnoses are mild and do not have a significant impact on Joseph’s independence. Joseph was accepted into a part-time program at Centennial College which had an attendance requirement of 11 hours weekly during the Fall 2022 term. No information has been disclosed regarding any other educational endeavours or regarding Joseph’s income from any source. No medical or employability report has been produced to substantiate Mother’s claim that Joseph is unable to withdraw from parental control.

[12] As noted, Father does not dispute his ongoing support obligation for Daniella. He seeks to pay support for Daniella based upon his 2022 income of $50,228.

[13] Mother has provided no responding materials on this motion and has failed to disclose relevant information regarding the medical and financial circumstances of Isabella and Joseph. Children are presumed to be able to withdraw from parental control at eighteen years of age; the presumption is rebutted by evidence of illness, disability or, most commonly, full-time enrolment in post-secondary education. This Court appreciates that, in the circumstances, these children may not wish Father to have detailed information about their lives. However, the risk associated with taking that approach is that the Court cannot confirm their continued entitlement to child support.

[14] Even if I am wrong and both Isabella and Joseph continue to qualify for child support after July 1, 2022, I cannot properly determine whether the table amount is appropriate in the absence of further information. Pursuant to section 3(2) of the Federal Child Support Guidelines, the Court is tasked with considering “the conditions, means, needs and other circumstances of the child”. In the absence of evidence regarding the children’s school enrolment, their expenses, their sources of income and any other funds available to them (such as student loans), I cannot conduct this analysis. In the absence of sufficient evidence upon which to make a finding, the Court cannot make an order.

Conclusion

[15] Child support will be varied on an interim basis commencing July 1, 2022 to accord with Father’s income and the amount payable for one child. Any credit calculated by the Family Responsibility Office for the overpayment made since July 1, 2022 is to be credited toward any currently-outstanding arrears.

Issue #2 – Security for Costs

Law

[16] Rule 24(13) authorizes the court, on motion, to order security for costs in the presence of one or more of the following factors:

1. A party habitually resides outside Ontario.
2. A party has an order against the other party for costs that remains unpaid, in the same case or another case.
3. A party is a corporation and there is good reason to believe it does not have enough assets in Ontario to pay costs.
4. There is good reason to believe that the case is a waste of time or a nuisance and that the party does not have enough assets in Ontario to pay costs.
5. A statute entitles the party to security for costs.

[17] Father submits that the operative sub-section is 24(13)4., namely that the case is a waste of time or a nuisance and that Mother does not have enough assets to fund a costs order were one to be made against her.

[18] In Izyuk v Bilousov, 2015 ONSC 3684, Justice Pazaratz summarized the analysis of security for costs in family litigation thus:

[40] The court must apply the following analysis:

a. The initial onus is on the party seeking security for costs to show that the other party falls within one of the enumerated grounds.

b. If the onus is met, the court has discretion to grant or refuse an order for security.

c. If the court orders security, it has wide discretion as to the quantum and means of payment of the order. Clark v Clark, 2014 ONCA 175.

d. The order must be “just” and be based on one or more of the factors listed in subrule 24(13). Hodgins v Buddhu [2013] O.J. No. 1261 (OCJ).

[19] His Honour referred to the following principles set out in decisions of the Ontario Court of Appeal in his analysing whether there was “good reason to believe that the case is a waste of time or a nuisance:”

a. Despite any deficiency or non-compliance by a parent, courts are better able to address sensitive children’s issues if both parties participate in the process and provide valuable information. Kovachis v Kovachis, 2013 ONCA 663; Purcaru v Purcaru, 2010 ONCA 92.

b. “A waste of time or a nuisance” is more than having “little prospect of success” but less than “frivolous and vexatious.” Perron v Perron, 2011 ONCA 776; Baker v Rego, 2013 ONSC 3309.

c. Consistent and flagrant disobedience of court orders, and a refusal to accept any aspect of a trial decision, demonstrates a recalcitrant litigation posture that can be considered in the analysis. Stetler v. Stetler, 2013 ONCA 508.

[20] As a further principle, I would agree with Justice Pazaratz that the exceptional nature of security for costs is less compelling in motions to change, where the issues may be narrower and where the moving party has the threshold onus to establish a material change in circumstances.

Evidence and Discussion

[21] Taking a sensible approach to the analysis, Father’s counsel starts with a review of Mother’s Motion to Change. I have grouped Mother’s requests for relief into 5 broad categories:

1. parenting issues;
2. support for allegedly disabled dependents;
3. adjustments to division of net family property, including the request to set aside the parties’ Separation Agreement;
4. past legal fees incurred; and
5. damages for assault.

[22] I pause here to underscore that I am not making findings regarding the actual merits of Mother’s claims today, but rather am simply assessing them to determine whether there is good reason to believe that her claims are a waste of time or a nuisance for the purposes of Father’s request for security for costs.

1. Parenting Issues

[23] Ms. McLeod argues that Mother’s ability to demonstrate the material change in circumstances necessary to support a variation order is questionable: Father has not seen the younger children in almost seven years[^3]. He has not approached any service providers working with Daniella, the only child to whom any further Order would apply, and thus no variation is needed regarding the existing parenting terms, which specify that Mother has sole decision-making authority (then “custody”)[^4] and that contact between Father and the children shall be only pursuant to their wishes.[^5] There is no restriction on Mother’s ability to relocate with the children – the only requirement is that she email Father setting out the Province and Region to which she has relocated.[^6] It is not necessary for her to provide her address. Further restrictions on the extremely tenuous parenting connection between Father and Daniella are difficult to theorize, let alone justify.

2. Support of Disabled Dependents

[24] Mother seeks an increase in spousal support payable to her, and to continue the child support payable for Isabella and Joseph, on the basis that all three are disabled and unable to support themselves. Mother has produced no evidence whatsoever of any such debilitating disabilities for any of the three individuals for whom support is sought. As Justice Katarynych of the Ontario Court wrote in Wreggbo v. Vinton, 2013 ONCJ 250:

[16] The disclosure duty is not limited to financial support issues. What must be provided, when, and how the information is to flow into judicial conferencing depends on the needs of the case set in the context of the law governing the claims.

[19] A “just determination” is one that protects the integrity of the administration of justice. Justice cannot be administered fairly when a party expects the court to indulge that party’s secrecy about matters that need to be transparent. Unexplained secrecy is “nuisance” behaviour. A case sent to trial on a less than fully informed base is positioned for mischief. Trial courts cannot afford mischief.

[25] Mother’s failure to provide evidence in support of her claims regarding the alleged disabilities qualifies as “unexplained secrecy” creating a nuisance.

3. Separation Agreement & NFP Adjustments

[26] Simply stated, Mother cannot advance these new claims through the Motion to Change process. Even if she could do so, her claims regarding monies allegedly owed to her on account of the equalization of property are statute-barred, as section 7(3)(b) of the Family Law Act, (R.S.O. 1990, c. F.3, as am.) requires any such claim to be brought within six years of the parties’ separation (here, that period expired on March 20, 2017). Both parties were represented by experienced counsel when the Separation Agreement was negotiated and signed and so, if Mother has a legitimate concern, it is likely that any claim may in fact be against her lawyer in professional negligence.

4. Past Legal Fees Incurred

[27] Past legal fees should have been addressed during the phases of litigation to which they apply. Rule 24(10) of the Family Law Rules obligates the court to determine costs “promptly after dealing with a step in a case.” The Limitations Act, 2002 addresses the period in which any financial claim can be made as expiring within two years (section 4, R.S.O. 2002, c. 24, Sched. B). Leaving aside the question of costs associated with the current phase of the litigation, it seems obvious that Mother’s claims for historic legal fees incurred is doomed to fail.

5. Damages for Assault

[28] Mother’s claim for damages arising from the assault that took place in 2011 are likely statute-barred, but there is a possibility that such claim could be viewed as associated with the tort of family violence. The tort of family violence had a short lifespan in Ontario: from February 28, 2022 when its existence was created in a trial decision through to July 7, 2023 when the Court of Appeal did “not recognize the new torts of family violence or coercive control.” Whether this is sufficient to inoculate Mother’s claim on this ground from being declared a nuisance remains to be seen. However, such a small segment of Mother’s claims, in the overall context of litigation brought improperly in the Motion to Change format, does not save the day.

Further consideration: a “recalcitrant litigation posture”

[29] A “recalcitrant litigation posture” further supports a finding of nuisance or wasteful litigation. This phrase was applied to an appellant who had flagrantly violated court orders, however I do not read that approach restrictively. A recalcitrant litigation posture can be evident in a party’s approach to the litigation and respect (or lack thereof) for the court.

[30] Mother provided no response to Father’s motion. It was scheduled for a 10:00 a.m. start time and was not reached until 4:15 p.m. (such is the nature of motions court). Mother did not attend at any point in the day and did not contact court services or the Trial Co-ordination office to explain her absence. The same disinterest in participating was evident before Justice Piccoli on October 25, 2023. It is possible that Mother may have abandoned this litigation.

[31] Further, Ms. McLeod notes that the of the seven witnesses Mother proposes to call at trial (as set out on the Trial Scheduling Endorsement Form), the anticipated evidence of three witnesses, plus the bulk of Mother’s own evidence, relates to parenting issues. With Daniella being 16, and as Father is not seeking an order for parenting time, there is no need to raise parenting issues at trial. It is Mother’s Motion to Change that seeks to further restrict any information flowing to Father in the context of a parenting order. Having regard to the basic facts understood thus far, such further restriction is unnecessary. Certainly, any trial time expended with those witnesses would be wasteful. Mother is not the only litigant seeking the assistance of the Unified Family Court at Kitchener; as Rule 2(3)(d) of the Family Law Rules reminds judges, we are obligated to give appropriate court resources to each case while taking account of the need to give resources to other cases.

Conclusion

[32] I find that this litigation qualifies as a “nuisance” in determining the propriety of an order to security for costs under Rule 24(13)4.

[33] At this point, Mother’s lack of participation suggests that she may now be trying to walk away from the dumpster fire that she has ignited with this litigation. However, once started, litigation must be concluded in some manner. Obligating Father to push it forward for a complete resolution, whether that be by way of trial; motion to strike accompanied by an uncontested hearing; or motion for summary judgment, all are expensive endeavours. An award of security for costs will force Mother to participate if she chooses to proceed with her claims and will provide Father with some assurance of recovery of his anticipated legal fees should Mother’s claims be unsuccessful.

[34] Father has spent approximately $31,000 in costs in this matter to date, and Ms. McLeod anticipates a further $65,000 as a trial retainer should the matter proceed as contemplated by the Trial Scheduling Endorsement Form (i.e. inclusive of the unnecessary witnesses whose evidence is focused on parenting issues). I agree that security for costs in the amount of $65,000 is appropriate in this situation.

Final Issue: Costs of this Motion

[35] Modern costs rules are designed to foster four fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants and; (4) to ensure that cases are dealt with justly under Rule 2 (2) of the Family Law Rules.[^7]

[36] Costs awards are discretionary and engage two important principles in the exercise of judicial discretion: reasonableness and proportionality. There is no distinction between family cases having a financial component and family cases that focus exclusively on parenting issues; costs consequences and considerations apply equally to all family litigation. Consideration of success is the starting point. Whilst there is a presumption that the successful party is entitled to costs, judicial discretion prevails; a costs award is not automatic.[^8] An assessment of reasonableness and proportionality of costs includes the following factors:[^9]

1. Ultimately, costs decisions should reflect what the court considers to be a fair and reasonable amount that the unsuccessful party should pay.
2. Costs need to be proportional to the issues and amounts in question and the outcome of the case.
3. Amounts actually incurred by the successful litigant are not determinative.
4. In assessing what is fair and reasonable, the expectation of the parties concerning the amount of a costs award is a relevant consideration.

[37] Of course, these concepts and many others discussed in the jurisprudence have been, to a certain extent, codified in Rule 24 of the Family Law Rules. I confirm that I have considered the applicable factors set out in Rule 24 in my analysis.

[38] Father was wholly successful. Ms. McLeod intentionally excluded any additional preparation time for today’s attendance despite the motion’s adjournment from Justice Piccoli’s court on October 25, 2023. On her client’s behalf, she submits that the total costs incurred are $9,504.43 and at a partial indemnity scale of 60%, they calculate to $5,727.97.

[39] I award costs of $7,500.00, payable within thirty (30) days.

Order

[40] Temporary Order to issue in the form signed today, with the addition of paragraph 7 “SDO to issue.”

J. Breithaupt Smith J.

Date: November 23, 2023

[^1]: Their eldest child, Gabriella (23) is living independently and thus longer entitled to child support. [^2]: The parties’ third child, Joseph, completed high school in June 2022 and turned 18 on July 28, 2022. [^3]: Gabriella has recently reached out to Father to resume a relationship with him. [^4]: Per paragraph 1 of the Final Order of Justice McSorley dated May 14, 2013. [^5]: Per paragraph 1 of the Final Order of Justice Neill dated February 14, 2019. [^6]: Per paragraph 3 of the Final Order of Justice Neill dated February 14, 2019. [^7]: Family Law Rules, rule 2(2); Mattina v. Mattina, 2018 ONCA 867 at paragraph 10. [^8]: Mattina, supra, at paragraphs 12 & 13. [^9]: Snelgrove v. Kelly, 2017 ONSC 4625 at paragraph 31 citing Serra, Boucher v. Public Accountants Council (Ontario), 2004 14579 (ON CA), [2004] O.J. No. 2634 (C.A.) and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC, 2005 1042 (ON CA), 2005 CarswellOnt 189 (C.A.).