Court File and Parties

COURT FILE NO.: FS-19-95182 DATE: 2024-04-04 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Veronica Spencer, Applicant AND: Daniel John Spencer, Respondent

BEFORE: Kurz J.

COUNSEL: Herschel Fogelman and Lauren Daneman, for the Applicant Eric Sadvari, for the Respondent

HEARD: March 12, 2024

Endorsement

Introduction

[1] The Applicant mother (the “Mother”) moves for two heads of temporary relief. First, she seeks prospective and retroactive child support for the parties’ eleven-year-old child, (the “Child”). Second, she seeks to terminate or vary para. 3 of the order of Justice Nieckarz dated November 22, 2019 (the “Nieckarz Order”). That term was a preservation order which prohibited the encumbrance or disposition of the former matrimonial home (the “Home”). The Mother seeks that order so that she can sell the Home.

[2] The Mother’s notice of motion requests further relief that was not argued before me or contained in either party’s factum. I have not considered those claims in this motion.

[3] There is no dispute that the Respondent father (the “Father”) has paid no child support for the Child since separation. The Mother gave no effective notice of her claim to child support until she served her Reply in this proceeding, dated July 31, 2019. Form 10A, the proper form for the Mother’s Reply, does not allow for an applicant to add any claims to those contained in the Application.

[4] The Mother’s original Application sought only an uncontested divorce. But in his Answer, the Father sought substantive relief. He requested an order setting aside both of the parties’ cohabitation and marriage contracts (the “Agreements”). Those Agreements contain terms which essentially waive any spousal support, property and trust claims each party may have against the other. The Father further claimed spousal support, equalization and a trust interest in the Home, which is solely owned by the Mother.

[5] The Mother’s Reply rejected those claims and for the first time since separation, set out a request for child support.

[6] The parties agree that they will have to amend their pleadings to more properly make their claims and respond to the other’s claims. I grant them leave to do so. The Mother may amend her Application within 14 days of the release of this endorsement. The Father may amend his Answer within a further 14 days. The Mother may then amend her Reply within a further seven days.

[7] Even following service of the Reply, the Father paid no child support at all. There is no evidence before me that he even offered to do so until in or about July 2023. At that time, he promised to start paying table child support of $556/mo., commencing August 1, 2023, based on an annual income of $60,000. Once again though, he failed to do so.

[8] The Mother argues that the obligation to pay child support commences at the date of separation, which was in 2015. She characterizes the Father’s refusal to pay child support since separation as blameworthy conduct. She similarly describes the alleged paucity of the Father’s disclosure following the commencement of this proceeding.

[9] In the alternative, the Mother says that retroactive child support should commence immediately after the time she gave formal notice of her claim to child support, in her July 31, 2019 Reply.

[10] Regarding the preservation order, the Mother argues that over four years have passed since the time of the Nieckarz order. She wishes to sell the Home and move. It is unfair to her to remain bound to the Nieckarz order. She argues that the Father has been dilatory in advancing his claims against her and that in any event, they have no merit. He signed both of the Agreements, in which he agreed to make no equalization or trust claims against her. He had independent legal advice before he did so. His lawyer participated in drafting one of the Agreements by requesting a change which she accepted.

[11] The Father argues that I should not order any child support payments which commence prior to August 1, 2023. That is the date upon which he agreed to start paying child support. He claims that between 2015 and 2019 he had at least 40% of the parenting time with the Child. Thus, there should at least be a set-off of child support for the period from separation until July 2019. At that time, the Mother unilaterally cut down his parenting time to less than 40% of the child’s time. In his view, she did so only to be able to claim child support. But, he argues, she never advanced her claim until July 2023. Thus, child support should commence August 2023.

[12] Regarding the period between July 2019 and August 2023, the Father claims that he did not make $60,000 per year during that period and in fact made only minimal or no income at all. Thus, the issue of the support quantum for that period should be left to trial.

Issues

[13] Inasmuch as the parties have agreed to the terms of a temporary prospective child support order, this motion raises the two following issues:

1. At what point should temporary retroactive support commence?
2. Should para. 3 of the Nieckarz Order be terminated or varied to allow the Mother to sell the Home?

[14] For the reasons set out below, I find that temporary child support should commence on January 1, 2023. I further order that the Nieckarz Order be varied to allow the preservation order to be registered against another real property in Ontario owned by the Mother, with a net value of at least $2,725,000.

Issue No 1: At what point should temporary retroactive support commence?

Relevant Authorities

[15] At present there is both a common law and statutory basis for an order of temporary child support. In Michel v. Graydon, 2020 SCC 24, Brown J., writing for the majority, offered a common law basis for child support as follows:

41 Child support obligations arise upon a child's birth or the separation of their parents. Retroactive awards are a recognized way to enforce such pre-existing, free-standing obligations and to recover monies owed but yet unpaid. Such a debt is a continuing obligation …

[16] Until that pronouncement, it was generally understood that the jurisdiction to order temporary child support is solely a statutory one, founded in both federal and provincial jurisdiction.

[17] The federal jurisdiction, which applies in divorce cases such as this, is found in s. 15.1 (1), (2) and (4) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) as amended, which reads as follows:

Child support order 15.1 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.

Interim order (2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to pay for the support of any or all children of the marriage, pending the determination of the application under subsection (1).

Terms and conditions (4) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order or interim order as it thinks fit and just.

[18] A motion such as this highlights the tensions between the usual purpose of a temporary child support order and the factors which govern the retroactivity of child support obligations.

[19] On the one hand is the principle that interim support is a short-term remedy meant to ensure that a dependant maintains, as best possible, a reasonable lifestyle until trial. In that regard, the court does not embark on an in-depth analysis of the merits of the case: Charbonneau v. Charbonneau, 2004 ONSC 47773, [2004] O.J. No. 5059 (S.C.J.), at paras. 15-16, Orsini v. Orsini, 2016 ONSC 3332, at para. 60.

[20] Generally, then, in cases in which retroactive support is sought, the trial judge is best situated to determine the issue based upon a full factual record. Nonetheless, the issue of retroactivity cannot be completely ignored at the interim stage of proceedings. That is because of the need of dependants who may have been deprived of timely support and to avoid incentivizing delay by the payor in meeting their obligations to their dependants.

[21] In Orsini, supra, at para. 61 (c), Ricchetti J. wrote that a court adjudicating a motion for a retroactive temporary child support order should “consider the factors in [D.B.S. v. S.R.G., 2006 SCC 37 (“D.B.S.”)] based on the motion materials and then proceed, if necessary, to ascertain whether and the extent it is fair and appropriate to both parties that such relief is granted on an interim basis in the circumstances of the evidentiary record of the motion.”

[22] In D.B.S., the Supreme Court of Canada instructed lower courts to consider four factors in determining a request for retroactive support: delay, payor conduct, the child's circumstances and potential hardship to the payor if an order for retroactive support is made: see the summary of these factors in Colucci v. Colucci, 2021 SCC 24 (“Colucci”) at para. 37.

[23] D.B.S. also provides a presumption that retroactive child support will not commence more than three years from the date of effective notice of the claim: D.B.S. at para. 123. Nonetheless, the court retains the discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair in the circumstances of a particular case: D.B.S. at para. 99, Colucci at para. 96.

[24] As set out above, one key D.B.S. factor is payor conduct. That factor looks, in large measure, to the presence or absence of blameworthy conduct by the payor. The Mother relies on that factor in this motion.

[25] Blameworthy conduct is any conduct that has “the effect of privileging [the payor’s] interests over the child’s right to support”. The payor’s subjective intentions are rarely relevant: D.B.S., at para. 106, Colucci at para. 101. Two potential forms of blameworthy conduct are a refusal to pay support when it is merited and a failure to provide income disclosure. As Bastarache J. wrote at para. 124 of D.B.S.: “[a] payor parent cannot use his/her informational advantage to justify his/her deficient child support payments.”

[26] While a motion court may consider blameworthy conduct within the context of a claim to temporary retroactive support, it should be cautious in making such a finding because a trial judge is in the best position to conduct the necessary holistic analysis of the D.B.S. factors: Palaganas v. Marshall, 2016 ONCJ 445 at para. 47.

[27] All of that being said, where there are substantial issues in dispute regarding the entitlement of a party to retroactive support, the analysis should be left to the trial judge: Palaganas, at para. 56, citing K.B.A.S. v. G.E.S. 2006 S.J. No. 604 (Q.B.); A.L.Y. v. L.M.Y., [2001] A.J. No. 506 (Q.B.); and Villeneuve v. Lafferty, [1999] N.W.T.J. No. 128 (S.C.).

The Father’s Justifications for his Failure to Pay Child Support and the Mother’s Responses

[28] The Father justifies his failure to pay child support between April 2020 and July 2023 by claiming that he was dealing with the COVID pandemic. The pandemic “devasted” his already shaky business and ultimately caused it to shut down. In addition, he was the sole caregiver to his mother. She was diagnosed with Stage 4 cancer in 2022 and appeared to be on her deathbed. He was fully occupied with caring for her from the time of her diagnosis until recently, when her health improved slightly. At present, she no longer requires his 24/7 care and is on experimental medication.

[29] The Father also argues that he would suffer undue hardship if he were required to pay child support retroactive to a date prior to August 1, 2023. He argues that he has more debt than is set out in his own sworn Form 13.1 financial statement. Forcing him to pay any further retroactive support would affect his ability to engage in excursions with or spend money on the Child.

[30] Implicit in the Father’s argument is the fact that the Mother makes almost six times as much income as him. She claims an annual income of $356,295 in 2023, while he concedes his obligation to pay support should be based upon an annual income of $60,000. Thus, the Child would not suffer any deprivation if he were not immediately required to pay temporary child support prior to August 1, 2023. On the other hand, if a $60,000 annual income were imputed to him for the period beginning 2019, he would suffer real hardship as he is barely able to pay his expenses now, along with the child support he has agreed to pay. He claims to have earned a minimal income from 2019-2022.

[31] In her Reply Affidavit, the Mother claims that she has been informed that the Father is in arrears of his support payments for his first child, that his driver’s licence is suspended and that a writ of seizure and sale has been issued against him. If true, that either confirms the Father’s arguments about his financial status or demonstrates an unwillingness to pay support.

[32] The Mother’s counsel also argues that the Father never pleaded undue hardship under section 10 of the Child Support Guidelines (although, as set out above, the child support claim does not appear to be properly pleaded in the first place as it arises in her Reply, which does not allow for a response). The Mother also contends that much of the Father’s disclosure has come late and is inadequate. While the Father offered four volumes of disclosure materials, the Mother’s counsel dismisses that disclosure as virtually meaningless, asking me to take his word on that account.

Analysis of Issue

[33] There is no doubt that the Mother is entitled to a retroactive support claim. The Father concedes her claim back to August 2023. Even though the Mother’s child support claim was not properly pleaded in her Reply, the pleading represented effective notice of the claim because it represented an “indication by the recipient parent that child support should be paid” per D.B.S. at para. 121.

[34] The Father was employed and earned some income following separation. However, for the period between separation and the time that the Mother offered effective notice of her child support claim, there is a dispute as to the presence of a shared parenting arrangement, as defined by s. 9 of the Child Support Guidelines. If so, the Father may owe no child support to the Mother for that period. Simply put, I lack the evidence to determine that issue. It must be left for trial.

[35] At the time of service of the Reply and thereafter, there was no shared parenting arrangement for the Child. While the Father says that the Mother had unilaterally changed the parenting arrangements to allow her to claim child support, he took no steps to reinstate an alleged shared parenting arrangement. While his income during that period is disputed, it cannot be disputed that the Mother had offered effective notice of her child support claim for that period.

[36] Nonetheless, it was open to the Mother to move for interim child support at any time between July 31, 2019 and July 2023, when the Father agreed to start paying child support commencing August 1, 2023. It is not disputed that she failed to do so. The Mother offers no reason for her failure to move earlier, thus allowing potential arrears to pile up. Unlike many cases before the court, her reluctance to move for temporary child support cannot be attributed to any want of resources or ability to retain counsel. I have to assume that it was a deliberate choice.

[37] Further, the parties attended at a case conference before Justice Nieckarz on November 22, 2019, less than four months after the Mother served her Reply. Yet the Nieckarz order, made on consent, makes no reference to child support. Had it been requested, Nieckarz J. could have given the Mother a date to bring a motion for temporary child support. Those facts may not disentitle the Mother to later claim the child support that she could have sought at the time, but it is a factor that I may consider at the interim stage.

[38] I also note, when considering the Mother’s income, that the Child suffered no deprivation from the Father’s failure to pay child support when it was due. Of course, that fact does not obviate a payor’s obligation to pay appropriate support for their dependant.

[39] The Father also argues that his income between 2019 and 2023 was not the $60,000 income upon which he is willing to base his support obligations from August 1, 2023 onward. He argues that his tax returns showed that he had little or no income from 2019 until 2023. Thus, he should not be obliged to pay child support from August 2019 onward based on the $60,000 annual figure that the Mother seeks to impute to him. If he were so ordered, that artificially high figure would have to be readjusted at trial.

[40] Sherr J. was not persuaded by such an argument in Samis (Guardian of) v. Samis, 2011 ONCJ 273, [2011] O.J. No. 2381 (O.C.J.). He wrote at para. 91:

91 The respondent argues that a temporary retroactive order should not be made, since, if the trial court decides that the applicant is not entitled to retroactive support, he will then have to collect the overpayments from the applicant. This is not an attractive argument when a recipient has established a strong prima facie case for retroactive support on a temporary motion. Why should the applicant solely bear the risks associated with collection of support after trial? Why should the respondent have exclusive use of these funds pending trial? At this point, the evidence indicates that, if this case proceeds to trial, it is far more likely that it is the respondent who will be required to pay a further (and sizeable) retroactive support payment to the applicant, rather than the respondent having to collect an overpayment of support from the applicant.

[41] The Mother claims that there is sufficient evidence to impute the $60,000 annual figure to the Father prior to August 2023. She states that the Father conceded the figure in his Answer. But that Answer has not been placed before me in this motion. The Mother adds that the Father swore to an annual income of $56,000 per year in his July 2, 2019 Form 13.1 financial statement. That document been placed before the court as an exhibit to the Mother’s reply affidavit. The Mother also points to an FRO statement of arrears which shows a monthly child support obligation of $600/mo. to the Father’s older child. However there is no evidence as to the method by which that figure was calculated and the extent to which it represents s. 7 expenses such as daycare. I note that the statement of arrears shows that he is $19,806 in arrears of support for his first child.

[42] The Father’s July 2, 2019 financial statement is relevant but not determinative of this motion. In the same document, the Father claimed that his previous year’s income was $26,600. Other evidence, in the form of Notices of Assessment, offer a different view of the Father’s income. For 2020 his total income was assessed at $18,218. For 2021 it was $16,961 and for 2022, it was $10,964. Of course I am aware that figures assessed by CRA are not necessarily the same figures that the court will accept under the calculation methodology laid out the Child Support Guidelines.

[43] In sum, it is open to the court to impute income to the Father, even on an interim basis. But on the facts of this case, as presented in this motion, I choose not to do so for the years 2019 – 2022. I do so for two reasons.

[44] First, I find that I have not been provided with sufficient evidence to allow me to fully engage in a retroactive calculation for the period between July 2019 and 2023. A motion judge should be circumspect in imputing income at an interim motion, particularly retroactively, when there is insufficient evidence to do so and the issue is best dealt with at trial. At that time, based on the full factual matrix, it will be open to the court to determine when the Father’s obligation to pay child support begins, what his income was for the applicable periods and the amount, if any, of retroactive child support he owes, net of the amounts I order below.

[45] Second, I take into account the issue of hardship to the payor, a D.B.S. factor that the court may consider in determining retroactive child support. I do so in light of the fact that the Mother appears to have chosen to forbear from bringing her motion until a time that she is able to claim the accumulation of extensive arrears. The arrears calculation that I was offered at the motion was $31,136, on the assumption that support was payable as of July 2019.

[46] As set out above, the Mother has failed to explain her delay in bringing a support motion. She appears to have deferred her claim until a time that it was more than 50% of the annual pre-tax income upon which she asks the court to base its support calculation. Whether there is any unfairness to the method in which the Mother has conducted this case is again a matter in which a trial judge is far better situated to consider than a motion judge.

[47] I am informed that a settlement conference is scheduled for July 2024. Thus, it appears that after substantial delay, which I will briefly discuss below, this matter is now advancing.

[48] All of that being said, if the Father’s income for support purposes in August 2023 was $60,000, I fail to see why that figure should not apply for the period between January and July 2023. I do not find that ordering him to pay temporary support for that period would represent undue hardship or unfairness to him.

[49] Thus, I order on a without prejudice basis, that the Father pay temporary table child support to the Mother for the Child at the rate of $556/mo. commencing January 1, 2023 and continuing on the first day of each succeeding month until further order. That means that at the present time, his arrears are $8,896. The issue of child support for the period between separation and December 31, 2022 is reserved to trial.

Issue No. 2: Should para. 3 of the Nieckarz Order be varied to allow the Mother to sell the Home?

[50] The Nieckarz Order was made at a case conference. There does not appear to be any dispute that the terms of the Nieckarz Order represented a compromise that the parties reached at that conference. The Mother was able to obtain severance and a speedy divorce. The Father was able to obtain a preservation order with regard to his claims regarding the matrimonial home.

[51] However, the Mother now contends that the Father was never entitled to a preservation order in the first place. She cites authorities for the test to grant a preservation order, which she asserts the Father fails to meet. She points out that the Father had counsel when he signed each of the Agreements and that counsel actually made a change to the marriage agreement, which was incorporated into the document. That proves that the Agreements were unimpeachably negotiated, see: Miglin v. Miglin, 2003 SCC 24 at para. 57.

[52] The Mother further argues that the passage of time, slow movement of the Father’s claims against her and the insufficiency of his productions together represent a material change in circumstances which allow for a variation of the Nieckarz Order.

[53] She points out that over four years have passed since the Nieckarz Order. This matter has not yet reached the settlement conference stage. She places the blame for that state of affairs solely at the feet of the Father. She states that the onus rests on him to advance his claims. Further, the Nieckarz Order required the parties to exchange their lawyer’s files regarding the negotiation of the Agreements. The Father delayed for about four years in doing so.

[54] The Mother concludes that the Nieckarz Order was not intended to be a permanent one. It was assumed that the Father would act expeditiously to advance his claims, whatever their merits. But now, continuing the preservation order which prevents her from selling her solely owned home in the face of the Father’s weak case and great delay, represents an absurdity.

[55] The Father responds that by agreeing to the preservation order, the Mother conceded the validity of the order. To the extent that she asserts that his trust and equalization claims are meritless, this is not a summary judgment motion.

[56] The Father adds that the terms of the Nieckarz Order are effectively a package arrangement: expeditious divorce in return for a preservation order. The Mother had the benefit of a quid pro quo in the form of her speedy divorce. Now she wishes to resile from her side of the bargain.

[57] The Father also points out that shortly after the Nieckarz Order was granted, he produced four volumes of disclosure. The Mother has not, in his telling reciprocated. It is true that he took about four years to produce his previous lawyer’s file but so too did the Mother. Those files have now been exchanged.

Relevant Authorities

[58] The jurisdiction to grant a preservation order is found in each of ss. 12 and 40 of the Family Law Act, R.S.O. 1990, c. F.3, as amended (the “Act”). Section 12 is found in Part I of the Act, dealing with family property. Section 40 is located in Part III, dealing with support obligations.

[59] Section 12 states:

12 In an application under section 7 [i.e. for equalization] or 10 [or the determination of a question of title between the parties], if the court considers it necessary for the protection of the other spouse’s interests under this Part, the court may make an interim or final order,

(a) restraining the depletion of a spouse’s property; and

(b) for the possession, delivering up, safekeeping and preservation of

the property.

[60] Under s. 40:

40 The court may, on application, make an interim or final order restraining the depletion of a spouse’s property that would impair or defeat a claim under this Part.

[61] There is no express provision of the Act which allows for the variation of a preservation order. The parties to this motion have offered no submissions on the test to vary a preservation order under s. 12 or 40. However, both parties cite Gerges v. Gerges, 2023 ONSC 2061. There, Tzimas J. assumes the jurisdiction to vary a preservation order.

[62] In Gerges, Tzimas J. begins by summarizing the test for a preservation order under either s. 12 or s. 40 and analogizes the test to one for an interlocutory injunction. She wrote at para. 11:

11 The court in Wright-Minnie v. Minnie, 2020 ONSC 5573, at paragraph 8 reviewed the authorities that have addressed the manner in which sections 12 and 40 of the FLA should be applied and distilled them to the following general principles:

a. The object of sections 12 and 40 of the FLA is the protection of a spouse's interests under the FLA by helping to ensure that there will be assets available to satisfy the entitlements of a spouse who is successful in obtaining relief under the Act. Relevant to that exercise is an assessment of the risk that assets in existence prior to trial will be dissipated.[1]

b. Drawing analogies to principles applied when considering to grant interim or interlocutory injunctions, but without intending to lay down explicit and/or rigid formula or guidelines for the granting of such discretionary relief, courts applying sections 12 and 40 of the FLA frequently have regard to the following factors:

the relative strength of a claimant's case;

the balance of convenience or inconvenience; and

the potential for irreparable harm.[2]

c. The court accordingly will consider how likely it is that the claimant will be entitled to an equalization payment and/or support, as well as the effect the granting or not granting of such orders will have on the parties.[3]

d. Preservation and restraining orders generally should be restricted to specific assets, (as opposed to an all-encompassing order binding all of a party's property in a general manner), and a claimant seeking such an order should show, on a prima facie basis, that he or she is likely to receive an equalization payment or support equal to the value of the specific assets.[4]

e. Restraining orders granted pursuant to section 40 of the FLA usually are made when there is evidence that the party obliged to pay support is not complying with a support order or there is other evidence of blameworthy conduct. The recipient spouse cannot rely on bare allegations or assumed beliefs; i.e., there must be something more than an "unsupported concern".[5]

[63] Relevant to the Mother’s argument that the Father’s case is so weak that he should not have been entitled to a preservation order, Tzimas J. added at the end of para. 11, that:

Having consented to the Preservation Order, the parties effectively conceded these principles.

[64] I take that to mean that a party cannot reargue the propriety of the original preservation order once they have agreed to it. I adopt that reasoning. A party who consents to an order should, absent special circumstances, be estopped from denying its propriety.

[65] Tzimas J. did not expressly set out a test for the variation of a preservation order although she implicitly accepted that she had the jurisdiction to do so. Rather, she looked to the practical effect of the order she was asked to make. As she wrote at para. 12:

12 On the motion before me, the only question to be answered is whether the Respondent's interests will remain protected if the Applicant's requested transactions were allowed to proceed. In other words, will the purpose of s.12 of the FLA continue to be met if the court were to amend the Preservation Order to allow for the proposed transactions to go forward? Practically, that translates into the question of whether the Applicant has enough security to cover the payment of his anticipated obligations on account of the Respondent's claims.

[Emphasis added.]

[66] In the case before her, Tzimas J. found on the facts that the answer is no, but left the door open to a return of the issue upon better evidence.

[67] While analogous if not binding, the test for the variation of an interim injunction was summarized by Dow J. in Wendy Sokoloff Professional Corp. (C.O.B. Sokoloff Lawyers) v. Chorney, 2023 ONSC 362, at paras. 11–12, as follows:

11 The legal test to vary the terms of an injunction is well summarized in Look Communications Inc. v. Bell Canada Inc., 2009 Carswell Ont. 1784 (leave to appeal denied - 2009 ONSC 14391). As part of the court exercising its broad discretion to fashion an order pending trial that achieves justice between the parties, the variance sought should not constitute an indirect appeal. There is a very heavy onus on the party seeking the variance.

12 The relevant factors to considering include:

a) whether there has been inordinate delay in advancing the claim;

b) any harm to the party opposing the variance being sought;

c) whether the facts presented are substantially different from those upon which the original order was granted; and

d) whether the facts presently are so dramatically different that the underpinnings of the original order are no longer valid.

[68] In the absence of explicit statutory or appellate direction, that approach is a helpful one. Nonetheless, I add that any such test must be considered within the context of equity, one of the goals of the Act. That goal is expressed in the Act’s preamble, which states that the Act is intended to provide “for the orderly and equitable settlement of the affairs of the spouses upon the breakdown of the partnership”.

[69] The point was further made in M. v. H., 1999 SCC 686, [1999] S.C.J. No. 23, at para. 85, where the majority of the Supreme Court of Canada emphasized the centrality to the Act of “the equitable resolution of economic disputes that arise when intimate relationships between individuals who have been financially interdependent break down”: ibid, citing the Ontario Law Reform Commission Report on the Rights and Responsibilities of Cohabitants Under the Family Law Act (1993), at pp. 43-44.

[70] Here, I find that there has been a lengthy delay, but one explained, at least, in part, by Covid and the personal circumstances of the Father. I note as well that the Mother has been equally dilatory in advancing her child support claim. Further, as set out above, the matter is moving towards a July 2024 settlement conference.

[71] Looking to the issue of harm to the party opposing the variation, the Father, I have little evidence in that regard.

[72] However, there is evidence to the effect that a variation on appropriate terms would not harm the Father. In her December 19, 2023 sworn financial statement, the Mother claims $11,672,282 in assets, including the Home, which she values at $4,300,000, and negligible debts. That means that she is likely capable of meeting any financial judgment the Father may obtain against her. That was almost certainly the case at separation and the time of the Nieckarz Order, when she claimed $6,990,486 in assets and no debts.

[73] Moving to the final two arms of the test articulated in Wendy Sokoloff Professional Corp., I note that I have little evidence of any material change in the facts since the time of the Nieckarz Order, other than the growth of the Mother’s net assets since 2019. The only argument regarding the underpinnings of the Nieckarz Order are to the effect that there were never grounds to grant it because of the weakness of the father’s case. But as set out above, by consenting to the order, the Mother had effectively conceded that the test for a preservation order was met.

[74] In considering all of these factors, it is fair to hold the Mother to her bargain until trial. But that does not mean that the Mother should be foreclosed from moving from the Home into another one. At the time of the Nieckarz Order, she had an equity of $2,725,000 in the Home.

[75] The Mother did not request an order allowing her to effectively transfer the terms of the Nieckarz Order to another property. But during the course of argument, her counsel stated that she would be willing to accept such a result. The Father did not object to it and in light of the facts set out above, would not be prejudiced by it.

[76] Thus, I order that the Nieckarz Order is varied to allow the preservation order to be registered against another real property in Ontario solely owned by the Mother with a net value of at least $2,725,000. I assume that counsel can work out the details. If they are unable to do so, they may arrange a Zoom conference with me to work out those details.

[77] During the course of argument I was informed that the Mother intends to move with the Child outside this jurisdiction, although no relocation notice has been served. Nothing in my order as set out above is intended to speak to the merits of any such potential relocation.

[78] In conclusion, I order:

1. The parties are granted leave to amend their pleadings as follows: i. The Mother may amend her Application within 14 days of the release of this endorsement. ii. The Father may amend his Answer within a further 14 days. iii. The Mother may then amend her Reply within a further seven days.
2. On a temporary and without prejudice basis, the Father shall pay table child support to the Mother for the Child at the rate of $556/mo., based on an annual income of $60,000 per year, commencing January 1, 2023 and continuing on the first day of each succeeding month until further order.
3. Based on the above, the Father’s present child support arrears are $8,896, as of the date of release of this endorsement.
4. The issue of child support for the period between separation and December 31, 2022 is reserved to trial.
5. SDO to issue.
6. Paragraph 3 of the Nieckarz Order is varied to allow its preservation order to be registered against another real property in Ontario solely owned by the Mother, with a net value of at least $2,725,000.
7. If counsel are unable work out the details of the varied preservation order, they may arrange a Zoom conference with me to work out those details.

Costs

[79] There appears to be divided success in this motion. Of course, I have not seen any of the parties’ offers to settle, if any were exchanged. I asked the parties to agree to costs of the motion to the successful party but they were unable to do so.

[80] The parties should attempt to resolve the issue of costs on their own. If they are unable to do so, the Applicant may submit her costs submissions of up to three pages, double spaced, one-inch margins, plus a bill of costs/costs outline and offers to settle. She shall do so within 14 days of release of this endorsement. She need not include the authorities upon which she relies so long as they are found in the commonly referenced reporting services (i.e., LexisNexis Quicklaw, or WestlawNext) and the relevant paragraph references are included. The Respondent may respond in kind within a further 14 days. No reply submission will be accepted unless I request it. If I have not received any submissions within the time frames set out above, I will assume that the parties have resolved the issue and will make no costs order.

Justice Marvin Kurz. Released: April 4, 2024