Court File and Parties
COURT FILE NO.: FC-07-2322-6
DATE: 2023/02/21
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Elena Inosante, Applicant
-and-
Scott Brooks, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Jamie Marie Mookerjea, for the Applicant
Respondent, Self-Represented
Allan Hirsch, for FRO
HEARD: July 8, 2022, by Video Conference
amended ENDORSEMENT
The style of cause of the Endorsement was amended on February 21, 2023 and the description of the amendment is appended.
[1] The Respondent father seeks leave to bring a motion to change the Final Order of Justice McNamara dated January 6, 2012.
[2] The Respondent father requires leave to bring a motion to change, due to previous orders in this proceeding.
[3] The parties cohabitated briefly in 2007. They have one child, K, born [redacted]. The parties separated on August 16, 2007.
[4] Since separation, K has primarily resided with the Applicant mother.
[5] K is now 15 years old.
[6] The court proceedings between the parties, relating to their child, date back to 2007. There have been many, many court appearances since 2007. There have been many, many court orders since 2007, many of which order the father to pay costs to the mother. These costs orders remain unpaid.
[7] On January 6, 2012, after a contested trial, Justice McNamara made a final order that dealt with parenting and child support. This order was not appealed, although the father attempted to do so on January 11, 2013, by an incorrect process, and beyond the 30-day appeal period.
[8] The father immediately began efforts to change Justice McNamara’s order, largely by attempting to relitigate the issues, rather than by establishing that there had been a material change warranting a change to the order.
[9] On December 3, 2013, Justice Smith dismissed the father’s motion to change, except for a few minor changes made for clarification, finding that there had not been a material change in circumstances that warranted a change to either parenting or child support.
[10] The father made several other attempts to change the 2012 Final Order, none of which were successful. During these efforts, further costs awards were made against the father, and several orders were made that restricted the father’s right to bring further motions.
[11] The main orders that operate to restrict the father’s right to bring a motion are as follows:
a. Order of Justice Blishen dated May 24, 2013, prohibiting the father from bringing any further motions without leave of the court.
b. Order of Justice Linhares de Sousa, dated March 7, 2014, prohibiting the father from bringing any further motions until he paid all of the outstanding costs orders against him.
c. Order of Master MacLeod (as he then was), dated September 1, 2016, that no further motion may be brought by the father unless the proposed motion followed a two-stage approval process, being:
The proposed motion is first approved by the court.
If the father’s proposed motion is approved by the court, the father may then bring a motion for leave, on notice to the mother. Any such preliminary approval is without prejudice to the right of the mother to argue against leave and is without prejudice of any right to seek a declaration that the father is a vexatious litigant.
[12] The 2012 Final Order has been changed by two orders made on the mother’s motions to change. On April 16, 2015, Blishen J. made a final order granting the mother’s motion permitting her to travel without the father’s consent. On November 14, 2017, Justice Sheard made a final order granting several changes sought by the mother, including terminating mid-week access.
[13] The Applicant mother opposes leave being granted for the father to bring a motion to change. She argues that he has not paid the outstanding costs, and there is no merit to the changes that he seeks.
[14] For the reasons that follow, I deny the Respondent father leave to bring his motion to change.
The Father’s Current Request for Leave
[15] In May of 2021, the father filed motion material seeking leave to bring a motion to change. He made several efforts to obtain leave that were not successful at the “first stage” of Justice MacLeod’s (as he now is) two-stage process.
[16] However, on November 1, 2021, the father was successful in getting past the first stage when Justice Labrosse ordered that the father may seek leave, on notice to the mother and the Family Responsibility Office (“FRO”), on several issues. The second stage of the approval process for leave is the issue that is before me.
[17] The issue before me, therefore, pursuant to Justice Labrosse's November 1, 2021 endorsement, is whether the father should be given leave to pursue the motions described at paragraph 1B, C, and D of his notice of motion dated October 1, 2021. I repeat the relief he seeks in these parts of his notice of motion, for clarity:
a. A motion to change a final order:
i. to adjust historic child support arrears to reflect the arrears owing based on income actually earned over the years;
ii. to set a reasonable payment towards those arrears;
iii. to increase his parenting time;
iv. an order appointing the Office of the Children's Lawyer (“OCL”) to represent his son in the determination of parenting time;
b. a motion for a stay of enforcement to prevent the FRO from garnishing the father’s EI income and other sources of income and governmental refunds;
c. a motion for leave to file material without the necessity of filing notices of assessment for the last three years.
[18] The motion before me on this hearing is the father’s notice of motion dated May 24, 2022. The affidavit that the father relies on in support of this motion is his affidavit sworn April 7, 2022. In response, the mother has filed an affidavit sworn May 18, 2022.
[19] I have also considered the material that the father filed before Justice Labrosse, upon which he was allowed to bring this motion for leave on notice. The father had not served the mother with a copy of this material, but a copy was provided to the mother by the court after the motion was argued. This material includes the father’s notice of motion dated October 1, 2021, and his affidavit sworn October 1, 2021.
[20] As previously referenced, there is also a substantial history to this court file dating back to 2007 that is relevant to the determination of this matter. Since COVID-19, court files have moved to digital files. The digital court file does not include copies of documents previously filed in the physical court file unless the parties refile these. The court relies on the parties to refile digital copies of any previous documents filed with the court that are relevant to the determination of the matter. This largely was not done in this case, which meant that I had limited documentation before me on the hearing of this motion. The history of the litigation is relevant to the determination of the motion. For this reason, I had the old physical court file, made up of two banker boxes, retrieved and provided to me for my review. I have also reviewed this physical court file.
Summary of History of Litigation
[21] The history of the court proceedings between the parties is relevant to the determination of whether leave should be granted to the father to commence a new motion to change, because it provides context and meaning to the existing orders that restrict his right to bring motions to change. The following is a summary of the court proceedings between the parties prior to the hearing before me.
(a) September 6, 2017 - the original Application between the parties was commenced.
(b) January 6, 2012 Final Order - after approximately 16 court appearances, and a contested trial, Justice McNamara made a final order, dated January 6, 2012, granting the mother sole custody (now decision-making) and access to the father (now parenting time) on alternate weekends, every Tuesday overnight, alternating weeks in the summer, and holiday time. He ordered the father to pay child support of $222/month (based on income of $26,000/year), and fixed child support arrears to the end of 2011 at $6,624. Payment on these arrears was suspended as long as the father paid the ongoing monthly child support payments and until his income was at least $32,000/year, at which time he would pay $50/m towards arrears. The father’s obligation to contribute to s.7 expenses was suspended until his financial situation improved. The father was also ordered to provided annual disclosure by June 1st in each year.
In determining child support, Justice McNamara rejected the father’s argument that he should pay less than table child support because of the amount of time the child was in his care, finding that the child was not in the care of the father more than 40% of the time over the course of the year (s.9 of the Child Support Guidelines).
Although the father’s position was that he was laid off and did not have the means to pay ongoing child support, Justice McNamara imputed income to the father of $26,000 per year, based on the father’s previous income earning ability, that he was working part-time at Wal Mart, had completed training in 2010, and had indications from other employers of other part-time work.
Justice McNamara rejected the father’s argument that he should pay less than table child support because the mother earned more than he did.
Justice McNamara rejected the father’s argument that he should pay less than table child support because of undue hardship (s.10 of the Child Support Guidelines).
Justice McNamara also dismissed the father’s request to change the child’s name to K.S.I-B [redacted][^1], but ordered the child’s name be changed to K.M.B-I [redacted].
(c) January 19, 2012 – thirteen days after the 2012 Final Order was released, the father filed his first attempt to change the 2012 Final Order.
(d) March 6, 2012 - Master Roger (as he then was) allowed the father to withdraw his motion to change, which was done on consent.
(e) January 11, 2013 – the father attempted to appeal several interim orders made before the 2012 Final Order, and the 2012 Final Order, and the March 6, 2012, Order. Justice Smith dismissed the father’s motion for leave to appeal the interlocutory orders of Ray J. dated Feb 18, 2009, Mackinnon J. dated Sept 8, 2011, and Master Roger (as he then was) dated March 6, 2012; and his motion for leave to appeal the Final Order of McNamara J. dated Jan. 6, 2012. All of these attempts to appeal were late and lacked merit, and the father had followed the incorrect process to appeal the 2012 Final Order.
(f) May 24, 2013 - the father brought a motion seeking relief relating to child support and parenting. This motion was heard by Blishen J., who noted that the father had not filed a new motion to change and the disorganization of the father’s material. Blishen J. ordered that if the father sought to change the 2012 Final Order, he was required to serve and file a motion to change forthwith, and that the matter then proceed to a case conference. Blishen J. ordered further motions could only be brought with leave of the court.
(g) June 3, 2013 - the father filed his second motion to change the 2012 Final Order. He sought joint custody, equal time, to rescind and terminate child support back to June 1, 2007, and for the mother to repay him all child support that he had paid to her. Most of the father’s motion to change was based on his criticism of Justice McNamara’s trial Decision. In response, the mother filed extensive material setting out her position that the father’s repeated motions were frivolous and an abuse of process.
(h) December 3, 2013 - Smith J. heard and determined the father’s second motion to change. At the hearing, the father argued there has been a material change because the child was now 6 years of age and, with respect to child support, because he was now unemployed. Smith J. found that there had not been a material change in circumstances and dismissed the motion to change except for a few minor changes to clarify the parenting clauses. On child support, Smith J. specifically rejected the father’s argument that the standard of living test meant that the mother should be paying him child support.
(i) March 7, 2014 - the father brought a motion, again without commencing a motion to change, seeking various changes regarding parenting. Again, the mother filed extensive material in response regarding the history of the father’s conduct within the legal proceedings. Justice Linhares de Sousa dismissed the father’s motion, finding it had no merit. Justice Linhares de Sousa prohibited the father from bringing any further motions until he paid all of the outstanding costs orders against him, and that any further motions be case managed.
(j) June 25, 2014 - despite the Order of Justice Linhares de Sousa, the father then requested a Settlement Conference be scheduled by the court. Justice Mackinnon dismissed this request on June 25, 2014.
(k) September 4, 2014 - the father brought a motion for leave to bring a motion to change the 2012 Final Order based on K. now being 7 years old. The father sought equal timesharing and various other changes, including, again, that the mother pay him child support back to 2007. The substance of the father’s claims related to the issues previously litigated before McNamara J. (2012 Final order) and Smith J. (December 3, 2013, Final Order). On September 3, 2014, Sheffield J. dismissed the father’s motion for leave because he had not made any payments towards costs.
(l) October 17, 2014 - the father effectively brought the same motion for leave again, although this time he sought leave to bring a motion to change the 2012 Final Order and the March 7, 2014 Order of Justice Linhares de Sousa. The substance of his motion was the same as the September 4, 2014 Motion. The motion was dismissed by Mackinnon J. on October 17, 2014.
(m) April 16, 2015 - Blishen J. granted the mother’s motion to change the 2012 Final Order to permit her to travel without the father’s consent, after the father refused consent.
(n) February 11, 2016 - the father brought another motion for leave to bring a motion to change. Master MacLeod (as he then was), dismissed this motion. The father had argued that his bankruptcy had extinguished the costs owed by him. Master MacLeod (as then was) found that although there may be a question as to whether leave should be granted to vary Justice Linhares de Sousa’s Order, the material filed did not demonstrate any injustice in refusing leave. Master MacLeod (as he then was), found that the father’s material was rambling, irrelevant, and showed a distinct lack of respect for the judicial decisions, for the court and for the judicial process itself, stating that rather than a motion to change based on a material change in circumstances, it read as if it was an appeal or a re-argument. Master MacLeod (as he then was) denied leave.
(o) September 1, 2016 - the father brought another motion seeking leave to bring a motion to change. Justice MacLeod (as he is now) dismissed the father's motion, noting:
“I can visualize a situation in which there might be some injustice in (for example) Mr. Brooks being unable to have the court deal with arrears or ongoing support in the face of a real substantial change in circumstances but there was nothing in the bundle of material dealing with points previously argued and adjudicated upon that would suggest leave should be given. To the contrary in fact this appears to be more of the same. Each time this occurs is a grave injustice to the applicant who is forced to respond. “
Justice MacLeod ordered that no further motion may be brought by the father unless approved through the two-stage approval process referred to above.
(p) October 13, 2016 - Justice MacLeod (as he is now) dismissed another motion by the father for leave to bring a motion to change finding that the father's material was unfocused, unclear and apparently an abuse of process.
(q) January 23, 2017 - the mother filed a motion to change seeking changes to the father's parenting time, including terminating the father’s mid-week access, under the 2012 Final Order, as varied by Justice Smith's December 3rd, 2013 Final Order. The father responded by attempting to bring his own motion to change.
(r) July 6, 2017 - Justice Tuscano Roccamo ordered that due to the father's failure to pay the outstanding costs, his motion to change in response to the mother’s would not proceed. Only the mother's motion to change would be dealt with.
(s) August 29, 2017 - Justice Parfett dismissed the father’s motion for leave to bring his motion to change due to his failure to provide evidence that he had paid the outstanding costs.
(t) October 24, 2017 - Justice Sheard heard the mother's motion to change. In her Decision released November 14, 2017, Justice Sheard granted some of the mother’s requested changes, including terminating mid-week access.
(u) April 18, 2018 - In the spring of 2018, the father scheduled a motion to change for April 24, 2018. It appears this motion did not proceed after Justice Blishen’ s Order, made on April 18, 2018, that unless the father’s motion was for leave to bring a further motion on substantive issues based on evidence of payment in full of previous cost awards, it was struck.
(v) May 24, 2018 - the father brought a motion for leave to bring a motion to change before Justice Corthorn, arguing undue hardship. Justice Corthorn dismissed the father's motion, ordering that if the father wished to make an undue hardship argument, he must provide the court with evidence of all costs orders previously made, costs paid, and the balance of outstanding amounts for costs.
(w) May 11, 2021 - the father brought an urgent motion seeking leave to bring a motion to vary to vacate all child support arrears, provide equal time sharing, and many other claims. A.J. Kaufman directed the father to provide further material to the court, including copies of previous orders.
(x) May 20, 2021 – A.J. Kaufman denied the father leave to bring his motion, finding that it is, for the most part, vexatious on its face, and that his material did not establish financial hardship.
(y) July 26, 2021 – A.J. Kaufman denied another attempt by the father to obtain leave to bring a motion to vacate child support arrears, including a claim for damages against FRO, finding that the father’s material did not establish any merit to his claims.
(z) November 1, 2021 - the father brought a new, more focused notice of motion seeking leave. Justice Labrosse granted the first stage of the approval process (under MacLeod J.’s 2016 Order) allowing the father to seek leave, on notice to the mother, for part of the relief that he sought.
(aa) April 5, 2022 - Minnema J. dismissed the father’s motion on notice for leave, without prejudice, because the father had not properly served the mother.
(bb) July 8, 2022 - the father's motion for leave, under the second stage of the 2016 test, was argued before me. Counsel for the mother attended on the motion, as did counsel for FRO.
[22] Several costs orders have been made against the father during the history of this litigation. All of these costs remain unpaid, except for a token payment towards costs of $10. The father admits that he has not paid the costs.
[23] The father was ordered to pay costs to the mother as follows:
a. Sept 8, 2011 - $500;
b. Mar 6, 2012 - $750;
c. Jan 11, 2013 - $1,500;
d. Jan 16, 2014 - $3,500 plus HST, enforceable as support;
e. March 7, 2014 - $2,000;
f. April 16, 2015 - $2,000;
g. Feb 11, 2016 - $1,000 enforceable as support;
h. Sept 1, 2016 - $1,000 enforceable as support, plus 2% interest;
i. Nov 14, 2017 - $1,500
Total costs owing: $13,740 (deducting the $10 paid towards costs) plus interest.
[24] There is some suggestion in the previous material filed on the February 11, 2016 motion before Master MacLeod (as he then was) that the father declared bankruptcy in May of 2015, which may have expunged some of the costs owed. The father did not file any new evidence in support of this position. I note that several of orders were made after May of 2015, which suggests these costs would not be expunged by his 2015 bankruptcy. I also note that several of the cost orders are enforceable as support, and therefor would survive bankruptcy. Lastly, the father has not provided any evidence that the mother, as a creditor owed the costs, was given notice of his bankruptcy. I do not find that the father has established that he no longer owes costs to the mother.
Should Leave be Granted?
[25] The father must get passed two hurdles in order to be granted leave to bring a motion to change – the outstanding costs and the requirement for leave.
[26] In Rubatto v. Sandoval 2018 ONCJ 85, Starr J. held that where a party to family litigation requires leave to bring a motion to change, that party must convince the court to exercise its discretion based on the following two-part test:
a. the moving party must have an arguable case on the merits (e.g. a prima facie case for the relief they intend to seek if leave is granted); and
b. the court must be assured, with or without terms, that allowing the moving party to bring their motion to change will not result in an abuse of process.
[27] A similar approach was employed by Trimble J. in Mubili v. Mubili, 2017 ONSC 3053.
[28] Given the history of this file, which includes the father’s repeated effort to bring motions to change, that lacked merit, and raised abuse of process concerns, I find that a similar analysis is appropriate here.
[29] In doing so, I am taking into consideration the father’s non-payment of the costs orders under the abuse of process part of the test. There is, arguably, a separate, stand-alone analysis to be conducted where a party seeks to proceed in the face of owing costs. Rule 1(8) of the Family Law Rules provides that if a person fails to obey an order in a case or a related case, including orders for costs, the court may deal with the failure by making any order that it considers necessary, including by dismissing a claim to vary. Whether a party who owes costs should be prevented from bringing a motion to change largely turns on the justification for the failure to pay the costs, and the merit of their claim. This raises similar abuse of process considerations, and, in this instance, I find that it is appropriate to consider these factors as part of the test for granting leave, set out above.
[30] Noting the above considerations, the history of this file, and the evidence before me on this motion, I deny the father leave to bring a motion to change for reasons that follow.
No Arguable Case
[31] The father has not established an arguable case on the merits on the issues set out by Justice Labrosse’s November 1, 2021 Order (the first stage).
[32] I do not find that the father has established an arguable case to adjust historic child support based on his actual income earned. In his motion material, the father seeks to adjust child support dating back to 2007 for several reasons, none of which have merit.
[33] There is no arguable merit to the father’s claim to vary child support from 2007 to the end of 2011. Justice McNamara dealt with the arrears of child support owed up to the end of 2011 in his January 6, 2012 Decision. The father did not successfully appeal this decision. The father’s material is simply an attempt to relitigate this issue of child support owed from 2007 to the end of 2011, which has already been decided by Justice McNamara.
[34] There is no arguable merit to the father’s claim to vary child support for the period prior to December 3, 2013. Justice Smith dealt with the issue of the child support owed up to his Decision on December 3, 2013, and specifically rejected the father’s argument that his unemployment was a change in circumstances that warranted a change in the child support payable under the 2012 Final Order. The father did not appeal this decision. The father’s material is simply an attempt to relitigate this issue of child support owed for the period prior to December 3, 2013.
[35] The father’s main emphasize for changing child support is his reference to the “standards of living test” or, in other words, his position that child support should be payable under s.9 of the Child Support Guidelines because of the amount of time the child spends with him, and because the mother has a higher income. This argument was specifically rejected by Justice McNamara in his 2012 Final Order. The father has not provided any evidence, nor does he argue, that there has been a change in circumstances since the 2012 Final Order that would make s.9 applicable. In fact, the child is spending less time in his care since the removal of mid-week parenting time by Justice Sheard’s 2017 Order.
[36] If the father’s reference to the “standards of living test” refers to an argument that child support should be changed under s.10 of the Child Support Guidelines (undue hardship), this argument was also specially rejected by Justice McNamara in his 2012 Final Order. The father has not provided any evidence, nor does he argue, that there has been a change in circumstances since the 2012 Final Order that would make s.10 applicable.
[37] The father’s other main emphasize is on his actual income earned. His argument is that his actually income was less than $26,000 per year (except for 2019 and 2020 when he says his income was higher) and so child support should be adjusted. This is not, however, the test for varying child support down (see Colucci v. Colucci 2021 SCC 24). In 2012, Justice McNamara imputed income to the father based on his ability to earn income if he made reasonable efforts to do so. On December 3, 2013, Justice Smith found that the father being unemployed, was not a change in circumstances to change the imputed income.
[38] The father has not provided any evidence upon which it would be arguable that his ability to earn $26,000 per year has changed to warrant a change in the income imputed to him. The father does not depose that he is unable to work due to health reasons. He deposes that he was working until the “pandemic” but provides no reasons for why his employment changed. His evidence is also that he received CERB payments of $2,000 per month after the pandemic impacted his employment, which annualized, is $24,000 per year and vary close to the imputed income of $26,000. The father has not provided any evidence of his efforts to earn income that would support a finding that he is not able to earn $26,000 per year if he made reasonable effort to do so. The father’s evidence in his October 1, 2021 affidavit is that he earned more than $26,000 in 2019 and 2020. The father simply states that he has been retraining since September of 2021 but acknowledges receiving funding during this training. The father does not provide any evidence of his effort to earn income after the training ended in April 2022, why the training program was necessary and reasonable in the first place, and why he was unable to earn additional income while attending training.
[39] For the same reasons, I do not find that the father has established an arguable case to change the 2012 Final Order with respect to the payment of arrears that have accumulated since the 2012 Final Order. I note that the 2012 Final Order already provides for payment terms with respect to the arrears of $6,624 owed for the period up to the end of December 2011. The FRO payment summary filed on this motion shows that arrears now total approximately $17,000. The father has not paid his ongoing child support as required under the 2012 Final Order, and therefore enforcement of the arrears of $6,624, or other arrears, is no longer suspended. The evidence before me does not establish an arguable case that the father’s financial circumstances are such that there is no reasonable prospect of him ever being able to pay the existing child support arrears.
[40] I do not find that the father has established an arguable case that there has been a material change in circumstances that warrants changing his parenting time. The father has not provided any evidence that would establish a material change in circumstances that would warrant changing the parenting terms. His main argument, if not his sole argument, is that the child is now 15 years of age. The father’s position, pervasive throughout his material, is that he is entitled to an equal timesharing arrangement simply because the child is older. The child’s age, alone, does not demonstrate an arguable case that there has been a material change in circumstances upon which to vary parenting.
[41] In the father’s Affidavit sworn October 1, 2021, he states that the child often asks to spend more time with him. This is the only evidence provided by the father that comes close to relating the child’s current best interests. But I do not find this statement, made in one line in his October 1, 2021 Affidavit and not repeated again in his subsequent affidavit, establishes an arguable case that there has been a material change in circumstances upon which to vary parenting. The father’s Affidavit sworn October 1, 2021, is a marked departure from the other material that the father filed in this matter and includes several statements that starkly contrast with the father’s subsequent sworn evidence. For example, in his affidavit sworn October 1, 2021, the father admits that he has taken unreasonable positions in this litigation, such as seeking to vacate all child support arrears, yet in all of his other materials on this motion, including his factum, he seeks to not only to vacate all child support arrears back to 2007 but also seeks orders that the mother owes him approximately $70,000 related to past support, as well as significant other funds being owed by the mother and the FRO. For this reason, as well as that the father does not provide any particulars regarding the child’s statements, either time, place, context, or even what was said, I do not find that this evidence establishes an arguable case that there has been a material change in circumstances upon which to vary parenting.
[42] The father also argues that Justice Sheard, in her 2017 decision, ordered that his mid-week parenting time resume if the mother moved back to her previous neighbourhood. This is not what Justice Sheard’s order, or her endorsement, states. The father is not automatically entitled to a resumption of mid-week parenting time because of Justice Sheard’s order.
[43] For the same reasons, I do not find that the father has established an arguable case on the merits to obtain an order appointing the Office of the Children's Lawyer to represent his son in the determination of parenting time. Such an order would only be made within a motion to change parenting, which requires, first, that the father meet the test to obtain leave to bring a motion to change parenting.
[44] I do not find that the father has established an arguable case to stay the Family Responsibility Office’s enforcement of child support. Such an order cannot be made without staying the underlying child support order. I have found that the father has not established an arguable case to change the child support terms of the 2012 Final Order.
[45] I do not find that there is any merit to the father’s request to file material without the necessity of filing notices of assessment for the last three years. Aside from not finding merit to the father’s motion to change child support, I do not find that there is any reason why the father should not be required to serve his income tax returns and file his notices of assessments as required by Rule 13 of the Family Law Rules. I do not accept the father’s explanation given on July 8, 2022, that he has not filed his tax returns because he cannot afford to pay someone $100 to file each return. The father’s evidence does not satisfy me that there is some bar that he cannot overcome, if he made reasonable efforts, to file his returns, either on his own behalf or through other assistance. I also note that in the father’s affidavit sworn October 1, 2021, the father’s sworn evidence was that he had chosen not to file his tax returns specifically because he was aware of the federal garnishment that would garnish 100% of his refunds, and that he wished to negotiate child support arrears before filing his returns. The father’s submissions to me, on July 8, 2022, was in direct contrast to his earlier sworn evidence.
[46] In his affidavit sworn April 7, 2022, the father raises other issues for which leave was not granted by Justice Labrosse on November 1, 2021. These issues are not properly part of this motion, because they have not passed the first stage of the approval process, but I address these here because the father repeatedly raises these issues, again and again, in his material filed with court.
a. The father’s position is that the mother owes him approximately $42,500, being his half of the benefits she received from CRA over the years related to the child. There is no merit in this claim. Whether the father is, or is not, entitled to various CRA benefits is between him and CRA. The father’s position is also premised on his view of the timesharing arrangements, which has already been addressed by Justice McNamara’s 2012 Final Order, which found that the father did not have the child in his care more than 40% of the time over the year.
b. The father’s position is that the FRO owes him approximately $23,000 for child support that it has collected from him. There is no arguable merit to this claim. There is nothing before me that supports that the FRO was not enforcing the child support order as it is directed to do. The father’s position that he is owed money from the FRO rests on his argument that the 2012 Final Order requiring him to pay child support, and arrears, is improper. As already found, there is no arguable merit to this claim.
c. The father seems to be of the position that he is automatically entitled to child support stopping when he was attending school/retraining. The father is not automatically entitled to child support stopping simply because his income is reduced, including because he was attending school. There is a test that must be met to warrant reducing child support. As found above, I do not find that the father has established an arguable case to do so.
d. I do not find any arguable merit in the father’s position that the FRO and/or CRA, and/or the mother owe him any money, and certainly not millions of dollars, in damages for “common law vicarious liability” arising from enforcement of the child support payments.
e. I do not find any arguable merit in the father’s claim that the child’s name should be changed to “K. S. I-B.” [redacted], which is the same issue litigated before, and decided by, Justice McNamara in 2012.
Abuse of Process Concerns
[47] The father’s conduct in this matter also provides no assurances to the court that allowing him to bring his motion to change would not result in an abuse of process.
[48] There is the issue of the costs owed by the father. Based on the evidence before me, I find that the father has not made any efforts to pay any portion of these costs, aside for $10. I do not find that the father’s financial circumstances prevent him from making at least partial payments towards these costs. Instead, the father is of the view that he does not have to pay the costs. In his material, he states that judges have told him that the courts do not collect costs, suggesting that somehow this means that he does not have to comply with the court orders. I find these statements disingenuous, particular given the number of times the father has been told that he is not allowed to bring a motion to change without providing evidence that he has paid the costs owed.
[49] To be clear, the court orders requiring the father to pay costs are valid and binding upon him, and he is required to comply with those orders. At a minimum, he must demonstrate best efforts to comply with the court orders, either by paying the costs or by establishing that the debts owed have otherwise been expunged. He has failed to do so.
[50] In addition to the costs issue, however, the father’s conduct and material in this matter is very concerning and provides no assurance that the father’s past conduct of bringing meritless motions to court, wasting the court’s time and the mother’s time and money, has changed.
[51] On November 1, 2021, Justice Labrosse allowed the father to get past the first stage of the approval process on the basis of the father’s more focused affidavit sworn on October 1, 2021, that admitted wrongdoing in the past and suggested the father wished to deal with the matter in a more reasonable manner. This was after the father’s efforts to obtain leave had been rejected twice by A.J. Kaufman, who commented that the father’s material appeared vexatious on its face. On different material, Justice Labrosse allowed the father to pursue leave to bring a motion for specific relief. However, almost immediately after Justice Labrosse’s November 1, 2021 Decision, any restraint or change in behaviour that the father had demonstrated in his October 1, 2021 material quickly evaporated. The father’s conduct, and his court material, quickly reverted to the type of material that was before A.J. Kaufman.
[52] For example, at the hearing before me it was clear that the father sought leave to pursue litigation on all sorts of issues, none of which were the subject to Justice Labrosse’s November 1, 2021 Decision.
[53] This includes the father again raising the issue of the child’s name change (see the father’s May 25, 2022, confirmation form), which is an attempt to relitigate the issue already decided as part of the 2012 Final Order.
[54] In his affidavit sworn April 7, 2022, and factum the father raises several wide-ranging claims for relief, including his position that the mother owes him thousands of dollars related to CRA benefits, and that the FRO, CRA and perhaps the mother owe him millions of dollars for “common law vicarious liability”. None of these issues were approved by Justice Labrosse, nor even raised before him, but the father included detailed information on these claims in his motion material.
[55] The father’s material is rife with attempts to relitigate previous rulings. He refers to what he says various judges have said to him, all the while ignoring what these same judges have said in their orders and endorsements. The father is express in his disregard for the court process and court orders. He has brought motion after motion seeking the same or similar relief, despite repeated findings that such claims lack merit, or that the matter has already been litigated.
[56] The father’s affidavit of April 7, 2022, instead of mirroring his October 1, 2021 affidavit that got him past the first stage of the approval process, instead mirrors the affidavits filed before A.J. Kaufman, and appears vexatious and an abuse of process on its face. In his submissions before me, when asked to clarify why his material was so different than his affidavit sworn October 1, 2021, the father responded that the ultimate focus of his efforts was to be able to pursue his claim based on “common law vicarious liability” against the FRO, CRA and other agencies and perhaps the mother, for significant damages. I find that the father’s statements in this regard reflect the true nature of his claims. This is not a bona fide attempt to address a material change in circumstances in the child’s best interests, nor to deal with a meritorious claim to vary child support. There is no assurance, on the material provided, the history of the father’s conduct, and all of the circumstances, including the father’s submissions on the hearing before me, that allowing the father to proceed with his motion to change, even limited by court order to specific issues or other procedural constraints, would not be an abuse of process.
[57] The Applicant mother is entitled to her costs of this motion. She provided an affidavit and had her lawyer attend to make submissions on the motion. Given the previous costs awards, as well as my findings on this motion, and taking into consideration the factors under Rule 24, I find it just, reasonable and proportional to order the father to pay the Applicant her costs fixed at $2,000.
Disposition
[58] The Respondent Father is denied leave to bring a motion to change the Final Order of Justice McNamara dated January 6, 2012, as changed by the Order of Justice Smith dated December 3, 2013, the Order of Justice Blishen, dated April 6, 2015, and the Order of Justice Sheard dated November 14, 2017.
[59] The Respondent shall pay costs of this motion to the Applicant, fixed at $2,000, enforceable as support by the Family Responsibility Office.
[60] Interest shall be payable on these costs in accordance with the prescribed pos-judgment interest rate under the Courts of Justice Act.
Justice P. MacEachern
Date: February 21, 2023
APPENDIX
Amendment made February 21, 2023:
- Mr. Allan Hirsch has been added as counsel for FRO in the style of cause.
COURT FILE NO.: FC-07-2322-06
DATE: 2023/02/21
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Elena Inosante, Applicant
-and-
Scott Brooks, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Jamie Marie Mookerjea, for the Applicant
Respondent, Self-Represented
Allan Hirsch, for FRO
amended ENDORSEMENT
Justice P. MacEachern
Released: February 21, 2023
[^1]: The child’s registered name on his Statement of Live Birth was K.M.I.