Court File and Parties
COURT FILE NO.: FS-19-11396-0001 DATE: 2023-12-13 ONTARIO SUPERIOR COURT OF JUSTICE
RE: Stella Awawu Raji, Applicant (Responding Party on Motion) AND: Liborio Lomonaco, Respondent (Moving Party)
BEFORE: Kristjanson, J.
COUNSEL: Stella Raji, Self-Represented Glen Schwartz, Counsel for the Respondent
HEARD: At Toronto by videoconference September 14, 2023
Endorsement
Kristjanson, J.
[1] This is a motion brought by the Respondent. The parties had been in a shared parenting arrangement after separation. However, due to concerns about the Applicant’s conduct, the father brought an urgent motion. On October 6, 2022, Justice Diamond granted a temporary Order that the children would have primary residence with the father, with supervised parenting to the mother. The father then brought a motion to change. The father now seeks to strike the materials filed by the mother on the motion to change, to proceed to an uncontested trial, and an order for interim child support given the changed residential status of the children. I grant the orders sought.
[2] The major issues for the motion are:
(1) Should the Court strike the responding materials on the motion to change filed by the Applicant? Should the court order the motion to change to proceed by way of uncontested trial (in writing) on Form 23C affidavit evidence?
(2) Should an interim child support order be granted?
(3) What costs should be paid?
Analytical Framework
[3] The Respondent brings a motion to note the Applicant in default, or a to strike pleadings for non-compliance with Family Law Rules, failure to obey court orders, and abuse of the court process.
[4] The analytical framework for the motion to strike under for non-compliance with court orders or Rules is summarized in Sheresht v. Abadi, 2021 ONSC 1665 at para. 48:
a. First, the judge must be satisfied that there has been non-compliance (Mullin v.Sherlock, 2018 ONCA 1065, at para. 44). At this step, it is critical that the motion judge outline in detail their findings respecting the party’s non-compliance with any relevant orders or Rules (Kovachis v, Kovachis, 2013 ONCA 644).
b. Second, if the court is satisfied that there has been non-compliance, the court must assess the most appropriate remedy based on the particular facts of the case before the court. In undertaking this task, the court should consider and weigh the following factors:
i. The extent and persistence of the non-compliance (Horzempa v. Ablett, 2011 ONCA 633 (C.A.), at para. 7);
ii. Whether the disobedience of the orders and Rules was wilful in nature (Marcoccia, supra, at para. 13; Kovachis, supra at para. 3; Manchanda v. Thethi, 2016 ONCA 909, at para. 9);
iii. Whether the non-compliant party made reasonable efforts to comply and is able to provide acceptable explanations for the breaches (Chiaramente v. Chiaramente 2013 ONCA 641, at para. 37; Brisson v. Gagnier, 2014 ONCA 909 (C.A.), at para. 3; Marcoccia, supra, at paras. 10-12; Horzempa, supra, at para. 6; Mullin, supra, at para. 45);
iv. Where the non-compliance relates to support orders, the payor's financial circumstances and their ability to pay support (Higgins v. Higgins, 2006 C
v. The remedy should be proportionate to the issues in question and the conduct of the non-compliant party (Kovachis, supra, at para. 3; Manchanda, supra, at para. 9; Mullin, supra, at para. 49). It should not go beyond what is necessary to express the court’s disapproval of the conduct in issue (Marcoccia, supra, at para 14; Purcaru, supra, at para.49).
[5] I also consider and apply Rules 1(8.1) and rule 1(8.2), and the same analytical framerwork:
1(8.1) If a person fails to follow these rules, the court may deal with the failure by making any order described in subrule (8), other than a contempt order under clause.
1(8.2) The court may strike out all or part of any document that may delay or make it difficult to have a fair trial or that is inflammatory, a waste of time, a nuisance or an abuse of the court process.
The Facts
[6] The Respondent brought a motion to note Ms. Raji in default in January 2023 as she had failed to respond to the Motion to Change. In the January 30, 2023, Form 14B Endorsement and order, I told Ms. Raji I was giving her a second chance, and ordered Ms. Raji to do the following:
(a) Serve and file a Response to Motion to Change (Form 15B or Form 15C), with all required supporting documents, by March 6.
(b) Serve and file a Form 13 Financial Statement with supporting financial information by March 6.
(c) Pay the respondent costs of $5,000.00 in accordance with Justice Diamond’s Order dated October 25, 2022, by March 6.
[7] I also advised Ms. Raji that if parenting issues were involved and Ms. Raji wanted to respond, then Ms. Raji would have to file a Form 35.1 Affidavit. Ms. Raji chose not to file a Form 35.1 affidavit on parenting and decision-making.
[8] Ms. Raji did not comply with my order. She filed what purport to be a Form 15B Response to Motion to Change and Form 13 Financial Statement, but not in acceptable form. She did not pay the outstanding costs ordered by Justice Diamond. She did not contest parenting, as she failed to file a Form 35.1 Affidavit.
[9] The materials filed by Ms. Raji in response to the motion to change, on this motion, and indeed filed without apparently being connected to any motion, are abusive, inflammatory, propound nonsensical legal theories, and are clearly influenced by many of the “Organized Pseudolegal Commercial Argument” (“OPCA”) theories described in Meads v. Meads, 2012 ABQB 571.
Divided Personality: Ms. Raji vs. Her Trust
[10] The Form 13 Financial Statement filed is devoid of essentially all financial information. Ms. Raji in her affidavits and oral argument attests to the fact that her assets and debts are held by a trust, are private and cannot be disclosed. The assets on the Form 13 Financial Statement are all listed as “Private property of Awawu Stella Raji Trust.” They are not particularized, and values are not given. The budget/expenses section is mostly empty. No financial information is provided, other than Notices of Assessment.
[11] Ms. Raji’s theory is that her property is the private property of the Awawu Stella Raji Trust, (which has a different legal existence than the person, Stella Raji), and so does not need to be disclosed on a motion to change dealing with child support, or on the Form 13 Financial Statement required for child support. In oral argument, Ms. Raji stated that she completed the Form 13 financial statement as a Trustee of the Trust, not as Stella Raji the individual. For this reason, Ms. Raji asserts, the assets of the Trust were private, and not entered on the Form 13 Financial Statement. This is the classic OPCA divided personality tactic: see Meads v. Meads, paras. 417-436. Ms. Raji has failed to make proper disclosure on the Form 13 Financial Statement, as required by the Rules.
[12] Timely, accurate, and complete financial disclosure is the bedrock of the Ontario family justice system. Financial disclosure requirements are contained in the Family Law Rules, the Child Support Guidelines, and Form 8.01 Automatic Disclosure Orders. Ms. Raji chose to not properly complete the required Form 13 Financial Statement, arguing that it was filled out in her capacity as trustee of the Trust not as Stella Raji the individual, and claiming privacy in the trust assets. She thus chose not to provide the required information, even when given a second chance. She must accept the consequences of her choices.
Vexatious PPSA Registrations and Leverage in This Litigation
[13] Ms. Raji has used OPCA tactics to intimidate and threaten the Respondent and his lawyer, including by registering PPSA liens of $528,000,000 on property owned by both the Respondent and his lawyer’s law firm. She then seeks to use the outstanding liability to avoid family law obligations in the motion to change, and refers to the $528 million liability on this motion to strike. This is unacceptable conduct – “paper terrorism.”
[14] On January 30 Ms. Raji served and filed an affidavit in this litigation, not accompanied by a Notice of Motion, alleging that the Respondent and his counsel owed the Applicant $528,000,000. She enclosed an invoice, noting she charged the rate of $100,000 per hour. The invoice to the Respondent was for $24,000,000,000 for kidnapping, fraud, blackmail, coercion, threat and distress. She reserved her right to press criminal charges against the Respondent for being successful in his urgent motion resulting Justice Diamond’s Order, made in the children’s best interests, that the children reside with the Respondent. Justice Diamond’s parenting order is the basis of the “kidnapping” charges found throughout Ms. Raji’s materials. I strike out this Affidavit under Rule 1(8.2).
[15] The Applicant, acting under the name “Awawu Stella Raji Trust” sent a document to the Respondent, and his lawyer in January 2023, that on her theory created a $528,000,000 enforceable claim against both the Respondent and his lawyer’s law firm. This is referred to in Meads v. Meads as a “foisted unilateral obligation”, a common theme for OPCA’s.
[16] In March 2023, the Applicant, acting under the name “Awawu Stella Raji Trust” obtained registrations of a $528,000,000 personal property lien against both the Respondent personally, and his lawyer’s law firm. The liens were eventually vacated. The PPSA extracts for both the respondent, and the law firm, contain the entry: “THE REGISTRAR HAS DETERMINED THAT FILE NUMBER *** IS A VEXATIOUS REGISTRATION AND THE REGISTRATION IS DISCHARGED PURSUANT TO SECTION 66.4 OF THE PERSONAL PROPERTY SECURITY ACT.”
[17] Finding and then lifting the PPSA vexatious registrations caused enormous stress and expense to the Respondent and his counsel. Registering the liens was designed to intimidate the Respondent from pursuing his claims, and to intimidate the law firm from representing the Respondent. Here, the vexatious PPSA registrations were abusively used as a tool in the parenting order and child support process, arising in response to the motion to change.
[18] Ms. Raji does not even accept the validity of the removal of the PPSA lien by the Registrar, stating in her affidavit on this motion that: “Applicant will accept the Government of Ontario's removal of the lawful and legal liens placed upon Respondent's if the Government of Ontario can provide their legal and lawful authority to remove liens when liens may only be lawfully removed by jury or payment of lien, none of which was done.”
[19] Having successfully registered a PPSA liens, the Applicant then used it to as leverage in her family litigation to avoid paying child support and to threaten the Respondent.
[20] On March 27, 2023, shortly after registering the $528,000,000 PPSA Registrations, the Applicant sent the Respondent the following text message:
"for true and righteous are his judgments: for he hath judged the great whore, which did corrupt the earth with her fornication, and hath avenged the blood of his servants at her hand." Revelation 19:2 KJV
The day you bring my children back to me and beg for mercy on your knees with my mother as your witness is the day I stop and not a second earlier. This is not harassment, this is a promise and everything that happens to you hereinafter, your judgement.
[21] In August 2023, the Respondent politely requested support money, including section 7 expenses for overnight school trips and piano lessons. The Applicant responded by demanding that Justice Diamond’s temporary parenting order be rescinded, and the Respondent write an apology for the “kidnapping” (the parenting order).
[22] Ms. Raji was aware of the difficulty created by her lien, since she suggested that the Respondent sell the house (if he could settle the lien) to obtain money for child support, and threatened that things would “get a whole lot worse.” She stated in part (emphasis added):
- Submit receipts for your claim of costs for possible future negotiations about support. ... otherwise you can sell your house (if someone will give you money to settle the lien), borrow money from the people who helped you kidnap my children and go further into debt or find another job ... You control your actions but you don't also get to control the consequences of those actions . Things are about to get a whole lot worse for you if you don't repent but my conscience is clear because I warned you. This offer expires in 48 hours.
[23] I find that taken collectively, Ms. Raji’s actions around the liens constitute “paper terrorism”, described in Meads v. Meads at para. 482:
Once an obligation is allegedly ‘created’ by a unilateral foisted agreement, the OPCA litigant may attempt to enforce that obligation in court. Alternatively, an OPCA litigant may register a lien or interest against property held by the agreement’s target, such as happened in MBNA Canada Bank v. Luciani, 2011 ONSC 6347 at para. 17. I understand that a number of justices in this Court have been the subject of this kind of spurious and unlawful security interest. My understanding is that this lien strategy is very popular among American OPCA litigants; this technique is sometimes referred to as “paper terrorism”: Robert Chamberlain & Donald P. Haider Markel; Erick J. Haynie; Susan P. Koniak. OPCA gurus commonly teach these approaches to their customers as a response to ‘unjust’ and ‘illegal’ state and court authorities. (emphasis added)
OPCA Strategy: Court Orders, Legislation and Rules Don’t Apply
[24] In her affidavit on this motion, Ms. Raji states that she does not accept the validity of Justice Diamond’s parenting Order, based on a classic OPCA reason for disregarding the authority of a court and legislation - the theory that “everything is a contract.” Ms. Raji’s affidavit on this motion states:
The October 6, 2022 Court Order also violates Contract Law as I did not sign it, there was not mutual assent, no consideration, and the police order in the order constitutes threat, duress and coercion, amounting to the Intentional Tort of Involuntary Servitude, an indictable offence and felony under the Criminal Code of Canada, as I am forced to obey the court order lest the police become involved. I sent a cease and desist in the form of Executor Letter to Kenneth Nathens of Respondent's lawyers law firm on October 5, 2022 confirming my non- consent, however, Respondent and his lawyer continue to violate my right to due process anyway. Barring an obligation with my wet signature giving Respondents authority to create and enter into contracts on my behalf as Authorized Representative, they operated and continue to operate in FRAUD and are liable for charges and damages related to aforementioned charge. Barring proof and evidence with my wet signature on The Children's Law Reform Act that I signed and agreed to be bound by The Act in the October 6, 2023 Temporary Court Order, the October 6, 2022 Court Order must be lifted immediately due to invalidity. See Exhibit "E".
[25] Court orders are not a contract. They bind parties: court orders do not require offer, acceptance or “wet signature.” A judge issues an order and parties are subject to the order. Neither a court order, nor governing legislation (like the Children’s Law Reform Act), require the consent of a party. But Ms. Raji accuses the Respondent and his lawyer of kidnapping and fraud in obtaining the temporary parenting order, because she did not consent. One of the issues on the motion to change will be a final order changing parenting time from the 2020 shared parenting order, to one where the children reside primarily with the father.
[26] Ms. Raji also asserted in oral argument that she is not bound by obligations under the Divorce Act (presumably including child support), as she is not a party to the Act. She said she would accept on condition that the Respondent, and the court, establish that she is a party to the Divorce Act and regulations. She also extended this to the Family Law Rules.
[27] Persons are not parties to statutes and regulations. Parliaments and provincial legislatures pass statutes and regulations, which apply of their own force to govern persons, and impose obligations on them. The idea that legislation only applies if a someone consents or is a party to the legislation is a classic OPCA tactic. As set out in Meads v. Meads, para.383: “Some OPCA litigants argue they have opted out of legislated obligations: Sydorenko v. Manitoba, 2012 MBQB 42 at paras. 17-18. Others simply claim consent is required, otherwise legislation is a set of optional guidelines: Waterloo (Regional Municipality) v. Bydeley, 2010 ONCJ 740 at para. 56, affirmed 2011 ONCJ 842, affirmed [2011] O.J. No. 6282 (QL) (Ont. C.A.); Bank of Montreal v. McCance, 2012 ABQB 537 at para. 29.”
[28] Ms. Raji’s oral arguments were of no assistance. She stated she would accept any and all claims of the Respondent, and the Court, on condition that she provide her written consent “with wet signature.” This is a classic OPCA claim: see Meads v. Meads, para. 405: “A second common variant of the ‘obligation requires agreement’ category is a belief that a person is immune if they simply say they have not consented to be subject to the law and the courts. Of course, this concept has not met with success…”
[29] All statutes, Rules, and court orders apply to Ms. Raji, without consent, or signature. And Ms. Raji has failed to comply with the Rules and court orders.
OPCA Strategy re Bills of Exchange – Costs Not Paid
[30] The Applicant relies on an OPCA strategy to establish that she has paid court costs, through mailing of a document entitled a “Bill of Exchange.” The Applicant states in her affidavit that: “Applicant accepts Respondent's claim that "costs of $5,000 were ordered against the Applicant which has not been paid to date" upon proof that Respondent's lawyer did not receive a Bill of Exchange sent to him Friday February 24, 2023 by registered mail. In the response to the motion to change, she claims in the affidavit that the costs were paid through this bill of exchange.
[31] A common OPCA tactic is to claim that a debt can be discharged by a bill of exchange (with no prior agreement, and no intent of honouring the debt). Ms. Raji mails a document purporting to be a bill of exchange, and claims that the costs have been paid. This is a classic money for nothing scheme, or rather, nothing instead of money. Unless the recipient agrees in advance to accept a bill of exchange or promissory note, the mere rendering of such a bill or note does not extinguish a debt or constitute payment. As stated by Associate Chief Justice Rooke in Re Boisjoli, 2015 ABQB 629 at para. 34:
I adopt the reasoning and conclusion of the Scottish Court of Sessions. In Canada there is no obligation to accept a promissory note to extinguish a debt, absent prior agreement. What appear to be similar arguments have emerged in Australia and New Zealand (Deputy Commissioner of Taxation v Aitken, [2015] WADC 18), Northern Ireland (Santander (UK) Plc v Parker, [2015] NICA 41), and the Republic of Ireland (Leeds Building Society v Brady, [2014] IEHC 346). In all cases the courts rejected claims that a debt had been paid by a promissory note. Canadian courts have done the same: R v Desautels, 2012 SKPC 29 at para 25, 2012 DTC 5079; R v Whitfield, 2001 FCT 777 at paras 8, 12, [2001] 3 CTC 260.
[32] In her affidavit, Ms. Raji offers to pay child support and section 7 expenses “on condition that Respondent accept payment in the form of Bills of Exchange as permitted under the Bills of Exchange Act (R.S.C., 1985, c. B-4) and as defined as money under the Financial Administration Act (R.S.C., 1985, c. F-11). Ms. Raji will not pay money for support, but maintains that mailing her document (which does not represent payment by etransfer, cash or certified cheque) constitutes an extinguishment of the debt.
[33] What is clear is that the Applicant has provided no evidence that she paid the Respondent costs. The Respondent’s evidence, which I accept, is that costs have not been paid.
Response to Motion to Change
[34] The Form 15B Response to Motion to Change, and the affidavit of March 3 filed on the Motion to Change, is incomprehensible, contradictory in parts, and refers to the laws of the United States and other unknown legal systems (e.g. the “Free Moorish Great Seal Zodiac Convention.) The Applicant states, in an affidavit attached as an exhibit to the March 3 affidavit on the Motion to Change for example:
Whereas, I am not the “Applicant”, I am a divine spirit incarnate and a true woman of God…I am an Indigenous Moorish American National. Notice of this is of public record and I have not asserted otherwise. Any claims or assertions to the contrary must be proven with facts and evidence, the likes of which [the Respondent] has utterly failed to provide. Article 6 of the United Nations Declaration on the Rights of Indigenous People states that: “Every indigenous individual has the right to a nationality.” I claimed the right for myself and my children. This right is also protected by The Free Moorish Great Seal Zodiac Constitution: and affirmed by Articles IV and VI of the Constitution Covenant of 1774-1781….as lawfully adopted for the United States Republic establishing its Republican form of government….
[35] The Form 13 Financial Statement has been struck. No Form 35.1 Affidavit was filed. The affidavits filed by Ms. Raji are inflammatory, propound nonsensical legal theories, and clearly influenced by the OPCA theories described in Meads v. Meads, 2012 ABQB 57.
Conclusion re Motion to Strike
[36] I have set out my findings about Ms. Raji’s conduct regarding the failure to comply with the Family Law Rules and court orders, as well as documents relied on by Ms. Raji that “may delay or make it difficult to have a fair trial”, or are “inflammatory, a waste of time, a nuisance or an abuse of the court process.” Applying the test in Mullin v. Sherlock, and the considerations regarding an order to strike summarized in Sheresht v. Abadi, I find that:
(a) The extent and persistence of the non-compliance is extreme. It has the hallmarks of OPCA litigants, including refusing to accept that legislation, the Rules, or court orders apply to her, maintaining a distinction between the person of Stella Raji and her Trust on all financial matters, and propounding preposterous theories about bills of exchange that indicate she has no intention of paying court costs or child support.
(b) The disobedience is wilful, and supported by an OPCA belief system that is not consistent with orderly litigation, fair trials, or compliance with court orders.
(c) The non-compliance relates to support orders, and the Applicant refuses to provide proper financial information required by the Family Law Rules and Child Support Guidelines. The Applicant is not complying with the primary objective of the Family Law Rules, and her conduct is causing delay and expense without valid reason.
(d) The documents and tactics of Ms. Raji on the various motions that have taken place to date, and the materials filed by her on the Motion to Change and this motion, are all documents that will delay or make it difficult to have a fair trial, and are inflammatory, a waste of time, a nuisance or an abuse of the court process.
(e) Taking the conduct of the Applicant into account, the remedies of striking the Response to Motion to Change, affidavits, and Form 13 Financial Statement, and all other documents filed on the Motion to Change are proportionate to the conduct and issues, as is the prohibition on commencing motions without approval by the court.
[37] I agree with the Respondent’s submissions that:
[T]he Applicant’s repeated failures to comply with court Orders and the Rules, combined with the history of this file and the Applicant’s unwillingness to respect the fact that this Honourable Court has jurisdiction over her, is all part of a strategy to continue to make life exceptionally difficult for the Respondent and the children. For the sake of their two children, this needs to end. The Respondent should be provided with an enforceable child support and costs order and final orders should be made so this litigation shall be concluded as swiftly as possible by way of uncontested proceeding.
[38] For these reasons, I grant the Respondent’s motion to strike the Form 15B Response to Motion to Change and associated documents filed (the Form 13 Financial Statement and all affidavits), pursuant to Rules 1(8) and 1(8.2).
[39] I direct that the Respondent proceed to an uncontested trial in writing based on Form 23C evidence. The Applicant will have no notice and no opportunity to participate pursuant to Rule 1(8.4). Given her failure to comply with court orders and abuse of the litigation process, I order that Ms. Raji may not bring any motion, including a Form 14B motion, without advance approval of the court.
Interim Child Support Pending Trial
[40] The two children now live primarily with the father. But the mother has not paid any child support since June 2022. The father seeks interim child support pending trial.
[41] The Final Order of Justice Pinto dated May 2, 2022 provides for setoff child support based on the Applicant’s 2019 total income of $89,109, in a shared parenting arrangement. Since October 6, 2022, the children have been residing solely with the father, with supervised access to the mother. As a result, the father has established that on an interim basis pending trial, the mother owes child support for the two children since November 1, 2022.
[42] The existing child support order is set on the Applicant’s 2019 total income of $89,109. The Respondent seeks to use the Applicant’s 2021 T4 income of $91,554.47. On this motion, Ms. Raji filed her 2021 Notice of Assessment showing line 15,000 income of $58,719, but a T4 slip showing employment income of $91,554.47. The T4 for 2022 shows income of $33,249.12.
[43] Ms. Raji’s affidavit on this motion doubles down on both the bills of exchange theory and the requirement that the father and his lawyer pay her $528 million, discussed above, for obtaining the parenting order for Justice Diamond:
Applicant is in agreement for an order for all claims for arrears and for retroactive Table child support owing by the Applicant to the Respondent from October 2022 to August 30, 2023 shall be fixed in the amount of $15,059 and shall be paid forthwith on condition that Respondent accept payment In the form of Bills of Exchange as permitted under the Bills of Exchange Act (R.S.C., 1985, c. B-4) and as defined as money under the Financial Administration Act (R.S.C., 1985, c. F•11).
Applicant is in agreement for an order for all claims for arrears and or retroactive section 7 expenses owing by the Applicant to the Respondent shall be preserved and dealt with by way of Form 23C: Affidavit for Uncontested Trial on condition that Respondent and his lawyer settle the $528,000,000.00 owed to Applicant for the Intentional Tort of Trespass to Person on Applicant, violating her right to due process and for FRAUD.
[44] The mother did not file any evidence about why her income (as a teacher, about $90,000 in 2019 and 2021) should be set at $33,249 on this motion. She states in her affidavit: “Applicant will gladly provide child support if Respondent can provide proof that Applicant willingly agreed to the October 6, 2022 Court Order. Respondent was provided with evidence of medical leave in the case conference filing of March 3, 2023 and Applicant will provide additional evidence of such if Respondent provides specific law references that state that Applicant must provide it and that Respondent has the authority to demand it.” This is an OPCA response, first requiring the Respondent to prove that Ms. Raji consented to the parenting order of Justice Diamond (consent is not required), and then that she will only file evidence on this motion if the Respondent provides the legal authority that she must provide evidence.
[45] Motions are decided based on evidence. That is the requirement under the Rules, and the common law. In taking the position that she would provide additional evidence of a medical leave if the Respondent “provides specific law references that state that Applicant must provide it and that Respondent has the authority to demand it,” the Applicant has it backwards. The obligation is on her to provide relevant and material evidence on the motion if she wishes the issue of a medical leave to be considered.
[46] The Applicant claims she took a medical leave, but did not file any medical evidence on this motion. In her Response to Motion to Change, she also states she is not working to look after her mother. Interim variations of final orders are to be done cautiously.
[47] The test for interim variation of a final order, which applies here, was set out by the Divisional Court in S.H. v. D.K, 2022 ONSC 1203. The Divisional Court described the test for granting a temporary variation of a final order to be "stringent", requiring any supporting evidentiary basis to be quite "compelling".
[48] Here, I find that the father has established a compelling case for interim variation of the child support order. The residence of the children has changed. The final order provided for shared parenting and setoff child support. Justice Diamond made a temporary Order dated October 6, 2022, providing that the children would reside primarily with the Respondent, with supervised parenting to the mother. While the father claims child support from June 2022, that issue can be dealt with at trial. The father has established on the interim motion that the residential status of the parties changed effective October 6, 2022, and setoff child support is no longer justified. The children need support now.
[49] This was brought as a one-hour motion on the regular list. As Kraft J. states in Moore v. Lemmon, 2023 ONSC 6735 at para. 30:
At the end of the day, interim support motions are meant to be summary in nature; the court is not required to conduct a "detailed inquiry into all aspects and details of the case". As Justice Chappel explained in Damaschin-Zamfirescu v Damaschin-Zamfirescum, 2012 ONSC 6689, 2012 CarswellOnt 14841 (S.C.J.), at para. 24, interim support orders are meant to be "holding orders.": Jarzebinski v. Jarzebinski, 2004 Carswell ON 4600 (ONSC, at para. 36; and Spence v. Sly, 2010 CarswellOnt 8359 (S.C.J.), at para. 11.
[50] The question is what income I should use. The Applicant has not provided evidence on this motion to establish that I should use the much lower level of income. She provided no cogent medical evidence of diagnosis, prognosis or treatment, for not working full time as a teacher. All I have are bald assertions. She claims to not work to assist her mother – but she has a legal obligation to earn the money she can earn to support her children. For that reason, I use the income set out in Justice Pinto’s May 2, 2022 Order (2019 income, lower than the T4 income of 2021). The only adjustment to the Final Order is based on the changed residential status of the children. Any adjustments regarding income can be made on the hearing of the Motion to Change.
[51] As a result, I make the temporary child support Order based on Ms. Raji’s income as set out in the Final Order.
Divorce
[52] Justice Pinto’s Final Order provided that Ms. Raji was to take out the divorce. Ms. Raji has taken no steps to do so. I amend the Final Order to allow Mr. Lomonaco to take out the divorce.
Costs
[53] The Respondent seeks costs of $10,000, for both this motion and the April Form 14B motion to strike, where costs were reserved. Costs orders are in the discretion of the court pursuant to Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43. The Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 at para. 10 held that modern family cost rules are designed for the fundamental purposes of: (1) partially indemnifying successful litigants; (2) encouraging settlement, (3) discouraging and sanctioning inappropriate behaviour by litigants, and (4) ensuring, in accordance with Rule 2(2), that cases are dealt with justly. Reasonableness and proportionality are the touchstone considerations to be applied in fixing costs.
[54] I find that Ms. Raji’s actions in this litigation have been taken in bad faith, are reprehensible, scandalous, and outrageous, based on groundless allegations, calculated to avoid financial responsibility for her actions, and to defeat justice. Positive misconduct of this nature must be discouraged and sanctioned. and the respondent is entitled to his costs.
ORDER
[55] I set out the Order, edited to not include the names and dates of birth of the children, which shall be included in the issued and entered Order:
Commencing November 1, 2022, the Applicant Stella Awawu Raji (“the Applicant”) shall pay Table child support to the Respondent Liborio Lomonaco (“the Respondent”) in the amount of $1,339 per month for the two children of the marriage namely, [names and dates of birth] (collectively “the children”) which is the Table amount based on the Applicant’s 2019 total income of $89,109 and the Child Support Guidelines.
The second two sentences of paragraph 11 of Justice Pinto’s order of May 2, 2022 are stayed effective November 1, 2022 until further court order, based on the changed residential status of the children, so that the Respondent does not owe child support to the Applicant from November 1, 2022 until further court order.
The Applicant shall pay 50% of the after-tax cost of the children’s valid section 7 expenses within 7 days of being provided a receipt by the Respondent as well as proof of payment.
All claims for arrears and/or retroactive Table child support owing by the Applicant to the Respondent from November 1, 2022, to December 1, 2023 shall be fixed in the amount of $18,746 and shall be paid by the Applicant within 30 days.
All claims for arrears and/or retroactive section 7 expenses owing by the Applicant to the Respondent shall be preserved and dealt with by way of Form23C: Affidavit for Uncontested Trial, as well as adjustments to table child support if required.
For as long as child support is to be paid, the Applicant and the Respondent must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this order, in accordance with section 24.1 of the Child Support Guidelines.
Unless the support order is withdrawn from the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director who shall pay them to the person to whom they are owed.
This order bears interest at the rate of seven percent per year on any payment or payments in respect of which there is a default from the date of default.
Pursuant to the Family Law Rules, the Response to Motion of Change of the Applicant Stella Awawu Raji (“the Applicant”), and any affidavits filed on that motion, and the Form 13 Financial Statement filed on that motion shall be struck, and the Respondent Liborio Lomonaco (“the Respondent”) shall be permitted to proceed on the Motion to Change by Form 23C: Affidavit for Uncontested trial (in writing) as soon as possible. The consequences of Rule 1(8.4) apply.
The Applicant shall pay costs of the Respondent’s previous April 2023 14B motion and today’s motion in the amount of $10,000, inclusive, payable within 30 days. Should the costs not be paid within 30 days, then the Respondent shall be permitted to enforce the $10,000 costs amount against the Applicant through the Family Responsibility Office, as legal fees arising in relation to child support under the Family Responsibility and Support Arrears Enforcement Act, 1996, SO 1996.
The Applicant Stella Awawu Raji shall not be permitted to bring any further Form 14B Motion or Form 14 Notice of Motion without the prior written approval of the Court.
The Respondent Liborio Lomonaco shall be permitted to proceed to obtain an uncontested divorce, as the Applicant has failed to do as set out in paragraph 40 of the Final order of Justice Pinto dated May 2, 2022. There shall be no procedural barriers to the Respondent’s ability to ‘set down’ the divorce.
All provisions of the Honourable Justice Diamond’s order dated October 6, 2022 shall remain in full force and effect.
The Applicant’s approval of this Order as to form and content is dispensed with.
“Justice Kristjanson”
Released: December 13, 2023