COURT FILE NO.: FS-23-0160
DATE: 2024 06 12
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SINKNER, Jana Nicole, Applicant
AND:
SINKNER, Nicole Jane, Respondent
BEFORE: The Honourable Justice Laura B. Stewart
COUNSEL: BAKER, Ryan, for the Applicant
PAQUETTE, Barry T., for the Respondent
HEARD: February 6, 2024
ENDORSEMENT
Overview
[1] Motion by applicant/husband for refraining order against FRO and order temporarily terminating spousal and child support. The motion was argued on February 6 and counsel for FRO was ordered to provide caselaw which was not served, filed or otherwise provided at the motion. These materials were not provided until March 27, 2024.
Facts and Procedural History
[2] The applicant/husband and respondent/wife married on November 28, 1989 and separated on January 1, 2013. They have two children, born 2004 and 1997.
[3] The parties entered into a separation agreement in April, 2015. The agreement was not filed with the court. The agreement dealt with several topics, the relevant ones for this motion being child and spousal support. On the issue of spousal support, section 7.1 of the agreement provides that after a period of 5 years (December 1, 2019), “there shall be a review and thence the husband can bring a variation”.
[4] The parties retained counsel in 2019 and discussions were had regarding spousal support, but no agreement was reached. The parties disagree as to whether this process satisfied the requirement for a review. The applicant did not bring a variance application after the attempted review.
[5] In September, 2020, the applicant reduced the amount of spousal support paid, reduced the amount again in April, 2021 and he stopped paying it in June, 2022.
[6] In or about August, 2022, the respondent filed the separation agreement with the court which triggered enforcement by the Family Responsibility Office. The respondent takes the position that she is entitled to the full amount of the alleged arears, despite the applicant’s position that material changes in circumstances have occurred since 2019.
[7] On May 5, 2023, the applicant started this proceeding to enforce the separation agreement. The court has made an order regarding the steps the parties are to take in order to deal with income valuation.
[8] On January 4, 2024, FRO issued a notice of intention to suspend any federal licenses, which would include the applicant’s passport. The notice provided a deadline of February 13, 2024 for the applicant to pay the arrears ($51,275.50 at the date of the notice) or enter a payment plan. The applicant does not wish to enter into a payment plan because this application disputes the arrears. The applicant uses both his drivers licence and passport for work travel. This description of the FRO documents and actions is based on the applicant’s affidavit. He did not put the FRO January 4, 2024 notice into evidence on this motion.
[9] During oral argument, counsel conferred and confirmed that, from FRO’s perspective, the child support issue was resolved for this motion and the only issue for FRO was the enforcement of spousal support.
[10] At the conclusion of oral argument, the parties agreed that FRO would not take any action until this decision was released.
Motion to Issue Refraining Order Directing FRO Not To Enforce Separation Agreement re: Applicant’s Passport
a. Motion to Change v. Application to Enforce
[11] When a party seeks a refraining order, they are expected to bring a motion to change. In this case, the procedural circumstances are unique. The applicant started this application in May, 2023 to enforce the separation agreement, prior to FRO advising of their intention to suspend federal licenses.
[12] As a preliminary matter, the applicant argues that he should not have to duplicate proceedings and bring a motion to change on top of this application. I agree. It is clear from the application that the applicant wants the child and spousal requirements under separation agreement to be reviewed and adjusted to take into account the current circumstances of the parties. Requiring a motion to change on top of this to deal with the refraining motion would be duplicative. In making this ruling, I express no opinion on the merits of the application. That is for another hearing.
b. Positions on Motion Seeking Refraining Order
[13] The applicant wants and order requiring FRO to refrain from suspending his driver’s license and/or passport. However, in the applicant’s own materials, he states that he has received a notice regarding suspension of federal licences, not provincial licenses. Unfortunately, the applicant did not file the notices from FRO and neither did FRO.
[14] The respondent did not take an overt position on the refraining motion in her factum or submissions.
[15] FRO did not serve or file materials. FRO offered to file a factum and return on February 13, 2024, the suspension deadline set by FRO. I declined this option, indicating that I was not prepared to visit an emergency motion on the court because FRO did not file materials in the first instance.
[16] FRO made oral submissions and referenced three cases. No factum was filed. When FRO submitted their materials on March 27, the court was provided with four cases as well as citations for additional cases, but not the cases themselves.
[17] In terms of its position, FRO submits that the court has no jurisdiction to grant the relief sought by the applicant. In the alternative, if the court does have jurisdiction, such jurisdiction should be exercised in a limited manner.
c. Disposition of Refraining Motion
[18] There is jurisdiction to prevent license suspension within the limited scope of the statutory scheme that permitted the Director of FRO to suspend federal licenses: Ryckman v. Ryckman, 2020 ONSC 5420 at para 26 and 28 to 30; Lewis v. Dwyer, 2015 ONSC 510 at paras 57 to 62.
[19] The test for a refraining order has been described differently across the cases. At the very least, a prima facie case (that no arrears are owing or inability to pay) is required. Other cases include a second element of clean hands: Lewis v. Dwyer, at para 70.
[20] Regarding the prima facie case, this case is different from Lewis. In Lewis, the court had detailed evidence about the decline in the moving party’s business and financial circumstances which precluded him from paying the amounts owed. In this case, the applicant does not plead a lack of ability to pay the spousal support arrears; rather, he argues that spousal support should not accrue because of the changes that should be made to the separation agreement. That position is countered by the respondent. I find that, on the affidavits on this motion, there is not a clear prima facie case that the applicant’s spousal support obligations under the separation agreement should be varied. That does not mean that the application will ultimately fail; it simply means that that the case is not clear on the preliminary information before me.
[21] Further, I note that the applicant’s need for his passport has not been clearly demonstrated. In the Lewis case, the court received evidence about his business, travel requirements (including frequency, places traveled, and clients met) and financial impacts if business travel was curtailed.
[22] In this case, the applicant relies on a short general statement without supporting evidence. Paragraph 29 of his January 23,2024 affidavit states: “I require my driver’s license to travel within the city and region for work purposes. I require my passport to engage in travel for business purposes. Without my driver’s license and passport my ability to earn income will be severely and detrimentally impacted”. This evidence is not sufficiently particularized to be compelling.
[23] Finally, if the test includes a clean hands analysis, the applicant does not meet this element. The reason why there are spousal support arrears is because the applicant unilaterally reduced, and later stopped, the spousal support payments. The applicant feels strongly that the mandatory 2019 review of the separation agreement was never conducted. However, the practical reality is that the applicant took no formal steps to remedy that perceived breach until starting this application in 2023.
[24] This aspect of the motion is dismissed.
Motion to Temporarily Terminate the Applicant’s Child and Spousal Support Obligations
[25] The respondent argues that this motion is about an interim variation of a final support order and that the applicable test is found in the case of Berta v. Berta, 2019 ONSC 505. The respondent further argues that the applicant fails to meet any of the conjunctive criteria of:
a. strong prima facie case;
b. clear case of hardship;
c. urgency; and
d. the moving party have clean hands.
[26] The applicant takes a different approach, noting that there is no motion to change before the court. Rather, the application seeks a review pursuant to the terms of the separation agreement as well as termination premised on events anticipated in the agreement itself. He relies on the British Columbia case of Hall v. Hall, 2021 BCCA 115.
[27] Regardless of which approach is used, the applicant does not meet the threshold for a temporary order to terminate child and spousal support.
[28] Using the Berta test, the motion fails. There is no urgency and the fact that the applicant unilaterally stopped paying spousal support casts doubt on whether he has clean hands.
[29] Using the applicant’s approach requires an assessment of all the facts, many of which are in dispute, and the evidence as a whole, which would include an assessment of credibility. The applicant effectively seeks, through this short motion, what he seeks through the application itself. There is no basis to grant a temporary order suspending child and spousal support pending the hearing of the applications on the merits.
[30] This aspect of the motion is dismissed.
Costs
[31] The parties are encouraged to agree on costs. If they will not, they can serve, file and upload make submissions in accordance with the following schedule:
a. Submissions from respondent and FRO: by July 30, 2024 at 4pm;
b. Submissions from applicant: by August 16, 2024 at 4pm.
[32] Submissions will be three pages, maximum (not including bills of costs, offers and authorities) and will be double spaced in 12 point font. Copies of submissions should also be sent to me through GuelphOffice.SCJ@ontario.ca.
L.B. Stewart J.
Released: June 12, 2024
COURT FILE NO.: FS-23-0160
DATE: 2024 06 12
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SINKNER, Jana Nicole, Applicant
AND:
SINKNER, Nicole Jane, Respondent
BEFORE: The Honourable Justice Laura B. Stewart
COUNSEL: BAKER, Ryan, for the Applicant
PAQUETTE, Barry T., for the Respondent
ENDORSEMENT
L.B. STEWART J.
Released: June 12, 2024