Court File and Parties

COURT FILE NO.: FC-01-1014-04 DATE: 2024/03/06 SUPERIOR COURT OF JUSTICE, FAMILY COURT

RE: Charlene Patricia Armstrong, Applicant AND: Ricky Arthur Armstrong, Respondent

BEFORE: C. MacLeod, RSJ

COUNSEL: Gonen Snir, for the Applicant Nancy Nyota, for the Respondent

HEARD: February 22, 2024

Decision and Reasons

[1] The Applicant brings a motion to quantify arrears of child support and for other relief. It comes before the court in the guise of a “Motion to Change” but as I will discuss, there are parallel proceedings all started by the Applicant including an unresolved divorce proceeding. The court recently made an order requiring that the various proceedings be reviewed before determining the next steps.

[2] I am not prepared to make isolated findings on the basis of the affidavit material filed in this matter when there are overlapping contested issues in the parallel files.

[3] Although it appears that it was a conscious decision by the Applicant to commence multiple proceedings, the Respondent also bears responsibility for the present confusion. The Respondent was represented by Mr. Dolgin when the multiple proceedings were started and is now represented by Ms. Nyota. As the affidavits demonstrate, the Respondent has, at various times, consented to orders or conceded he owes support but has not lived up to those obligations. This does not justify proceeding with the issues in a piecemeal fashion, but it may be relevant to the ultimate awarding of costs.

Background Facts

[4] The parties were married in July of 2005 and separated in May of 2019. They are parents of four children, currently aged 23 (born in 2000), 21 (born in 2002), 17 (born in 2006) and 14 (born in 2009). The two eldest children were born prior to the date of the marriage and were the subject of earlier family law proceedings. That explains the “01” file number and the numerous file extensions.

[5] File number FC-01-1014 was a 2001 application for child support for the eldest of their children. It resulted in a consent order for joint parenting, principal residence to the mother and the father to pay child support. There was also a proceeding in 2003 dealing with the second child. I believe there was DNA testing to establish paternity and subsequently the proceeding was dismissed following a NAD. This is referred to in the affidavit as file FC-01-1014-001 but it may have had file number FC-01-1014-A000. Those files are no longer open.

[6] Subsequent to those proceedings, the parties began to cohabit in 2003. As discussed above, they were married in 2005 and went on to have two other children together. They separated for the final time in May of 2019.

[7] On June 21, 2019, the parties signed a separation agreement which purported to resolve all parenting, property and support issues. Importantly, the agreement provided for “joint custody” of the children, for equal parenting time, that no child support would be payable and that section 7 expenses including post secondary tuition would be paid equally. The agreement also provided that the matrimonial home would be transferred to the Applicant and that the parties waived any further property claims against each other. The agreement released any pension claims and acknowledged the parties understood the contents and were waiving independent legal advice.

[8] It is worth noting that both parties are federal public servants. At the time of separation, the Applicant earned more than the Respondent and that is also true today. Despite the disparity in income, the parties agreed in the separation agreement there would be no table amount of child support payable (based on equal parenting time) and they would each pay fifty percent of section 7 expenses.

[9] Following the signing of the separation agreement, the Applicant started an Application for a simple Divorce (FC-01-1024-2) on September 1, 2020. The Respondent filed an Answer (and subsequently amended it by order of Justice Engelking made on March 7, 2022) in which he sought to advance property claims and asked that the court set aside the separation agreement. Neither the Respondent in his Answer nor the Applicant by way of a Reply or an amended Application, sought to re-open the issues of parenting or support. Presumably both parties continued to believe that the Separation Agreement had resolved those issues and there was no reason to assert them.

[10] The divorce file is still open and has never been brought to a conclusion. This is significant because s. 36 of the Family Law Act and s. 27 of the Children’s Law Reform Act provide that when a divorce application has been commenced, any application for support or parenting under provincial legislation is stayed except by leave of the court. This does not mean that the provincial legislation can never be used in parallel with a divorce proceeding, but it does mean that the issue must be brought to the attention of the court and the court must grant leave to proceed under the provincial legislation. See Howe v. Howe, 2012 ONSC 2736.

[11] Rather than seeking parenting and support orders in the divorce proceeding, the Applicant filed the separation agreement for enforcement (on the same date she filed the application for divorce, file FC-01-104-3). This was apparently to compel the Respondent to pay his contribution to section 7 expenses by filing for enforcement. This remained unchanged notwithstanding the fact that the Respondent indicated he would be seeking to set aside the property aspects of the separation agreement and would be advancing an equalization claim. FRO enforcement is apparently continuing.

[12] In September of 2020, on the same date she filed for divorce and the same date she filed for enforcement, the Applicant launched this motion to change (the -4 file). The motion purported to be seeking changes to the parenting and support provisions of the separation agreement because “the parenting agreement was not followed at the request of the father” and “the father also does not follow his s. 7 obligations”. The notice of motion also referenced the lack of independent legal advice at the time of signing the agreement and claimed that due to the father moving to L’Ange Guardien in Quebec, the 50/50 parenting arrangement was no longer in the best interests of the children.

[13] Nothing was said in the notice of motion about the divorce proceeding or the enforcement proceeding. In fact, the notice of motion contained the statement that “the mother was trying to resolve the matter amicably with the father” and “there were no courts available due to COVID 19”.

[14] I pause to note that Mr. Snir represented the Applicant throughout all of these post 2019 proceedings and the statement that “there were no courts available” is simply incorrect. Although in person matters were suspended during the pandemic, the Family Court immediately made arrangements for court proceedings to continue electronically. There was never a time that “no courts were available.” September 1, 2020 was in the middle of the COVID-19 pandemic.

[15] Regardless, the motion to change came before Justice Engelking at a case conference on March 7, 2022 at which time, on consent, there was a final order changing parenting. The remaining issue of adjusting the support arrears was to proceed. It should be noted that the Respondent acknowledged he owed child support of at least $6,269.60 while the Applicant was seeking $17,853.50. There was an issue raised by the Respondent as to whether or not the two oldest children remained children of the marriage within the meaning of the applicable legislation. The Respondent took the position they were now adults and were not attending school full time.

[16] The outstanding issues on this motion to change then came before Justice Kershman on June 30, 2022. The motion did not proceed because Justice Kershman had been advised there was a settlement and insufficient time had been scheduled for hearing the motion. It was adjourned by him to a later date. I note that in November of 2022, the Respondent (who had been represented by Mr. Dolgin) elected to represent himself. More recently, he has retained Ms. Nyota.

[17] In the meantime, it appears the Applicant sought to re-open the parenting issues that had been settled in March of 2022. The applicant attempted to add new issues to the (-4) motion to change. A case conference was held before Justice Engelking on March 15, 2023. At that conference, Justice Engelking directed that insofar as the motion to change sought to change the consent final order of March 2022, it should be given a -5 extension and she made certain temporary without prejudice orders including an order that the Respondent pay support for the two youngest children. She also requested a Voice of the Child Report from the Office of the Children’s Lawyer.

[18] On August 20, 2023 the parties appeared before Justice Engelking for a Settlement Conference. It was then for the first time that the parties discussed all of the outstanding issues. Justice Engelking made the following endorsement:

Discussions were held relating to this extension # -5 of the file, as well as relating to outstanding issues remaining unresolved in extension # -2 (relating to the Respondent’s claims to set aside a part of the Separation Agreement dated June 21, 2019 and for equalization) and extension # -4 (relating to retroactive child support for three of the four children and section 7 expenses for all the children).

The file is somewhat convoluted with different claims being made regarding different issues in the various Motions to Change, all brought by the Applicant. The court needs to review the file to determine next steps.

A virtual conference will be scheduled with the parties by the court once such review has occurred.

[19] Despite this endorsement, the Applicant obtained a date for the remaining issues in the -4 extension, amended the notice of motion and attended before me on February 22, 2024. The Respondent had served a responding affidavit out of time and could not file it. I accepted that affidavit and a reply affidavit from the Applicant for filing over the bench during the hearing.

Decision and Direction

[20] I am not prepared to decide the outstanding issues in the -4 file in isolation on the basis of the affidavit evidence. There are factual disputes about which children lived with which parent during which period of time. There is a question of mixed fact and law about whether or not the eldest children remain children of the marriage for whom support should be paid and during which time periods. There are new issues raised by the motion to change (-5) which overlap with some of these issues. There is an additional issue which has not yet been clearly set out in any motion to change as to how to fund the post secondary education for the two older children.

[21] I am also not prepared to decide the questions because Justice Engelking clearly contemplated a further videoconference with the parties after a review of the file. That conference should have taken place preliminary to arguing the motion.

[22] In conclusion, the motion is adjourned and the parties are to arrange a case conference with Justice Engelking who will give further direction as to the issues in dispute and how those issues should be resolved. Without attempting to pre-judge those issues, it may be that a trial or summary trial of certain issues may be required. At a minimum it appears the following issues need to be resolved:

a. The status of the divorce proceeding and whether the parenting and support issues should be dealt with under federal or provincial legislation. b. The validity of the separation agreement and whether the property issues should be reopened. c. Whether the motion to change the parenting and support provisions of the separation agreement can proceed separately from the divorce proceeding. d. The questions raised by this motion to change – that is how much time each child spent in the care of each parent from July 2019 - May 2022, for which children support should have been paid during that time, calculation of support arrears, calculation of section 7 arrears. e. The impact of the consent final order of March 7, 2022 which recites that it “settles the parenting issues in the matter”. f. The issues raised in the new (-5) motion to change which seeks declarations that the parenting arrangement set out in the March 7, 2022 order changed on April 8, 2022 and seeks retroactive support calculations from April 8, 2022 to the present. g. The question of whether the two older children ceased to be children of the marriage for whom support should be paid at some point during the times set out above.

[23] I note that there appears to be a new issue not fully covered by any of the above points. That issue is even if the adult children ceased being full time students at some point, now that it appears they are resuming post-secondary education, whether they remain dependent and entitled to be supported by their parents.

[24] As I pointed out to the parties at the hearing, all of these ongoing disputes are potentially expensive and time consuming to resolve. There will be significant costs incurred and significant costs awards are possible.

[25] It would be in the best interests of both parties, the children and the justice system to reach a comprehensive conclusive settlement or if that is not possible to ensure there is a focused efficient adjudication of the issues that require adjudication.

Conclusion

[26] This motion is adjourned to a date to be set following the conference contemplated by Justice Engelking in her endorsement of August 20, 2023. The Applicant is to take steps to schedule that conference as soon as possible.

[27] No further motions to change or further motions for temporary orders are to be launched in any of these proceedings until the case conference has taken place.

[28] Costs of this motion and all of the outstanding proceedings are reserved to Justice Engelking or to the judge or judges who may finally adjudicate these matters.

Justice C. MacLeod

Released: March 6, 2024