Thomson v. Delmoro, 2024 ONSC 3816

GUELPH COURT FILE NO.: 198/16-02 DATE: 2024-07-04

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

JOAN THOMSON Applicant – and – THOMAS VICTOR DELMORO Respondent

COUNSEL: W. Gerald Punnett, for the Applicant Colin J. Thurston, for the Respondent

HEARD: June 12, 2024

Justice C. Petersen

OVERVIEW

Nature of Proceeding

[1] This is a motion for summary judgment. The Respondent, Mr. Delmoro, seeks an order dismissing Ms. Thomson’s Motion to Change a final order for child support dated March 12, 2019. In the alternative, Mr. Delmoro seeks an order striking Ms. Thomson’s Motion to Change based on her failure to comply with prior court orders.

[2] Mr. Delmoro also seeks an order requiring Ms. Thomson to pay all outstanding costs orders in this case and to obtain leave of the court before she may bring any further steps in this proceeding or commence any further proceeding in relation to child support.

[3] If summary judgment is denied and the Motion to Change is not dismissed, Mr. Delmoro seeks an order for security for costs payable by Ms. Thomson in the amount of $20,000. He also seeks an order for his costs of this motion and for the Motion to Change.

[4] Ms. Thomson opposes all the relief sought in the motion.

Background Facts

[5] The parties were common law spouses for 27 years. They separated in March 2014. They have two daughters, C.E.D. and M.G.D., who were 14 and 11 years old on the date of their separation. The children resided with Mr. Delmoro after the separation.

[6] During the parties’ cohabitation, Mr. Delmoro was self-employed, and Ms. Thomson worked at an insurance brokerage. Both parties contributed to an R.E.S.P. account for their daughters while they were together.

[7] Mr. Delmoro’s business failed shortly before the parties separated in 2014. He then became employed as an auto mechanic. As the children aged, they started working summers at the same location as their father and they saved money towards the cost of their post-secondary education.

[8] Ms. Thomson’s employment ceased at some point in 2014 or 2015. The circumstances surrounding the termination of her employment have not been disclosed and are unknown. In an affidavit sworn on February 14, 2023 (in the context of an earlier step in this proceeding), Ms. Thomson simply deposed, “I was fired.” No particulars have been provided.

[9] Ms. Thomson commenced a new common law relationship with her current partner, Darryl Billings. They live half the year in Ontario and half the year in Florida.

History of Proceedings

[10] Ms. Thomson commenced an Application in March 2016, claiming spousal support and remedies for unjust enrichment. In his Answer to the Application, Mr. Delmoro claimed spousal support, child support, and contributions to the children’s s. 7 expenses in proportion to the parties’ respective incomes.

[11] On January 23, 2017, the parties consented to an Order stipulating that they would each deliver requests for financial disclosure and would answer those requests within 60 days of receipt. Mr. Delmoro’s counsel delivered a request for disclosure on February 1, 2017. Ms. Thomson did not respond to it.

[12] On August 14, 2017, Justice Bloom ordered Ms. Thomson to provide the disclosure requested by Mr. Delmoro’s counsel within two weeks. Ms. Thomson did not comply.

[13] On October 24, 2017, Justice Barnes issued a Temporary Order for Mr. Thomson to pay monthly child support in the amount of $395, based on an income of $26,824.41. That income amount reflected the funds that Ms. Thomson was withdrawing from her R.R.S.P. account to support herself since the termination of her employment. The interim child support order was made on consent of the parties. It was “subject to retroactive adjustment as to quantum and start date by the Justice disposing of this matter on a final basis.”

[14] On October 24, 2017, Justice Barnes further ordered Ms. Thomson to pay Mr. Delmoro’s costs in the amount of $1,500. He also ordered her to provide eleven specific items of disclosure, including an updated Financial Statement, details of her income over the past three years, any Records of Employment she received since the parties separated, a summary of her efforts to obtain employment since separation, and medical evidence to support any claim that she was off work due to health reasons.

[15] Ms. Thomson did not comply with Justice Barnes’s disclosure order. She also did not pay the costs order and she failed to make the agreed-upon monthly child support payments.

[16] Justice Barnes’s Temporary Order was filed with the Family Responsibility Office (“FRO”) for enforcement on December 1, 2017. Commencing in June 2018, the FRO was able to collect small payments from a source of money owed to Ms. Thomson. The precise source is unknown. FRO records indicate “FOAEA diversion” (Federal Orders and Agreements Enforcement Assistance Act), which refers to payments made by the federal government on behalf of a support payor from a federal source of income such as Employment Insurance or an income tax refund. Most of the payments were in the amount of $75.22. Arrears in child support accrued.

[17] The parties attended a Trial Management Conference on March 5, 2018. A further order for disclosure was made that day. Ms. Thomson did not comply with that order.

[18] A series of adjournments of the proceeding ensued. A trial date was eventually fixed for February 5, 2019, peremptory on Ms. Thomson. Both parties’ lawyers appeared in Assignment Court on January 7, 2019, and confirmed that the matter was ready to proceed.

[19] Ms. Thomson did not attend court for the trial on February 5, 2019. Her lawyer appeared and requested an adjournment. He advised that his client was in Florida. He provided no explanation for why Ms. Thomson was absent, or for why she had not complied with multiple court orders. Mr. Delmoro objected to the adjournment request. Justice Lemon denied the adjournment.

[20] The trial proceeded in Ms. Thomson’s absence. Her lawyer participated but did not call any evidence on her behalf. Justice Lemon dismissed her claims.

[21] Mr. Delmoro withdrew some of his claims, but he pursued his claim for child support retroactive to April 1, 2014, and for reimbursement of s. 7 expenses for the children, who were, at that time, 18 and 15 years old. The eldest daughter, C.E.D., had started post-secondary education in September 2018 and was living away from home at college. Given that her education expenses were covered by her summer employment income, O.S.A.P. funding and the R.E.S.P. savings, Mr. Delmoro did not seek a contribution from Ms. Thomson toward those expenses. He also did not seek child support for C.E.D. beyond August 2018, when she moved out to attend college. However, he sought ongoing child support for M.G.D. He argued that the court should impute income to Ms. Thomson based on the principle of intentional unemployment. Ms. Thomson was still unemployed at the time of the trial.

Justice Lemon’s Final Order

[22] Justice Lemon issued his Judgment on March 12, 2019. He ordered Ms. Thomson to pay child support based on an imputed gross annual income of $60,000: Thomson v. Delmoro, 2019 ONSC 1267. In explaining his reasons for imputation of income, Justice Lemon stated (at para. 41):

[D]espite court orders, Ms. Thomson has admittedly failed to produce an updated financial statement, details of her income over the past three years, investment income and all child tax benefits received by her. She has failed to provide details as to how she has supported herself without working since the parties separated, any records of employment received by her since the parties separated and a summary of her efforts to obtain new employment since the date of separation. Finally, she has not provided any medical evidence that she might have to support any claim that she was off work due to health reasons.

[23] Justice Lemon drew an adverse inference against Ms. Thomson that the above information was not produced by her because it would not have assisted her case. He concluded that she “has means that she refuses to disclose.” He noted that she was living in Florida at the time and had sufficient funds to pay for the parties’ youngest daughter to travel to visit her, and to pay for her daughter’s dance expenses and clothing. He also concluded that Ms. Thomson was able to work and was intentionally unemployed.

[24] Justice Lemon reviewed the available evidence of Ms. Thomson’s employment and earnings history. Her income tax returns for the four years prior to the parties’ separation were adduced as evidence on consent. Those records showed that she had earned a gross income of $53,000 in 2010, $62,000 in 2011, $57,000 in 2012, and just short of $62,000 in 2013. In the absence of any evidence of a reason why she could not earn what she had been earning just prior to the parties’ separation, Justice Lemon imputed to her an income of $60,000 for child support purposes.

[25] Justice Lemon then calculated retroactive support for both children for the period from April 1, 2014 to August 1, 2018, using the imputed income amount of $60,000 for the years post-separation, and the applicable Tables in the Federal Child Support Guidelines. He ordered Ms. Thomson to pay a total amount of $47,483. He also calculated retroactive child support for M.G.D. for the period from September 1, 2018 to March 2, 2019, in the amount of $3,892.

[26] In addition to these lump sums, Justice Lemon ordered Ms. Thomson to pay ongoing monthly child support for M.G.D. in the amount of $556. He ordered enforcement of retroactive and prospective child support through the FRO. He further ordered Ms. Thomson to pay Mr. Delmoro 46% of any s. 7 expenses for the children within 15 days of receiving proof that the expense was incurred. This percentage was calculated based on Mr. Delmoro’s income of $70,000 and Ms. Thomson’s imputed income of $60,000.

[27] Finally, Justice Lemon ordered Ms. Thomson to pay Mr. Delmoro’s costs in the amount of $17,151.72. He found that $15,000 of those costs were incurred to obtain support for the children and ordered that they be enforceable through the FRO.

[28] Ms. Thomson did not appeal Justice Lemon’s decision.

First Motion to Change

[29] Justice Lemon’s Order (“the Final Order”) was filed with the FRO for enforcement. Ms. Thomson did not make any voluntary payments in either 2019 or 2020. The FRO was able to recover some small payments through FOAEA diversion, but arrears continued to accrue. In 2020, the FRO suspended Ms. Thomson’s Ontario driver’s licence and Canadian Passport because of her non-compliance with the Final Order.

[30] On April 8, 2021, Ms. Thomson brought a Motion to Change the Final Order. At that time, she owed approximately $77,636.47 in combined child support arrears and costs. She sought a reduction in the amount of child support that she was required to pay, retroactive to March 1, 2018.

[31] In mid June 2021, Ms. Thomson began to make voluntary payments to the FRO for the first time, in the monthly amount of $756 (i.e., $556 monthly per Justice Lemon’s Final Order plus $200/month toward arrears). There is evidence that she and the FRO had a hearing in the Ontario Court of Justice around that time. I infer that she likely agreed to start making these payments in order to secure a refraining order and obtain reinstatement of her driver’s licence and passport. The evidence in the Motion Record confirms that she has since travelled internationally, so it appears that her passport was reinstated.

[32] In addition to receiving Ms. Thomson’s voluntary child support payments, the FRO continued to collect some payments through FOAEA diversion.

[33] Ms. Thomson’s regular monthly payments of $756 ceased in January 2022, but she continued to make occasional smaller voluntary payments in amounts ranging from $100 to $400.

[34] The parties attended a Settlement Conference on April 26, 2022. Justice Van Melle ordered Ms. Thomson to make financial disclosure within 30 days. Justice Van Melle’s disclosure Order included many of the same items that Justice Barnes had previously ordered her to produce on October 24, 2017, which she had yet to disclose. It also included disclosure of all income received by her over the previous three years, her partner Darryl Billings’s income and income-producing assets, details of how she has supported herself without working since the parties separated, and details of her travel schedule and travel expenses since the parties separated.

[35] In her Endorsement, Justice Van Melle stated, “This disclosure should have been made a long time ago. I cautioned the applicant that if this material is not forthcoming, the trial judge could draw an adverse inference.” Despite this caution, Ms. Thomson did not comply with Justice Van Melle’s Order. At an Assignment Court appearance on August 29, 2022, the court reminded her lawyer of her obligation to produce the requisite information and documents or run the risk of having her Motion to Change dismissed.

[36] At a subsequent Assignment Court appearance in January 2023, the matter was set for trial commencing February 16, 2023, but the court ordered that the trial would only proceed if Ms. Thomson had produced the financial disclosure by then. Mr. Delmoro was granted leave to bring a motion to strike Ms. Thomson’s Motion to Change if she did not comply with the outstanding production order.

[37] On February 14, 2023, two days before trial, Ms. Thomson served and filed an updated financial statement along with an affidavit. She did not produce all the disclosure required by Justice Van Melle’s Order dated April 26, 2022.

Motion to Strike the First Motion to Change

[38] Mr. Delmoro brought a motion to strike Ms. Thomson’s Motion to Change. His motion was heard and granted by Justice Mossip on February 16, 2023: Thomson v. Delmoro, 2023 ONSC 1246.

[39] Justice Mossip ruled that the disclosure produced by Ms. Thomson on the eve of trial was not only late but also “wholly deficient”. Ms. Thomson’s lawyer argued that Ms. Thomson could “fill in the gaps” by her oral testimony if the Motion to Change were permitted to go to trial. Justice Mossip held that to allow the Motion to Change to proceed without full disclosure would make a mockery of the Family Law Rules and of court orders, and it would be highly prejudicial to Mr. Delmoro.

[40] Justice Mossip found that Ms. Thomson’s repeated failure to provide financial disclosure constituted “wilful disobedience” of court orders. She ruled that the missing disclosure was crucial to a determination of whether Justice Lemon’s Final Order should be changed. She concluded that there was no reasonable or fair remedy in the circumstances other than to strike Ms. Thomson’s Motion to Change.

[41] Justice Mossip declined to order that all outstanding costs owed by Ms. Thomson must be paid prior to the commencement of a fresh Motion to Change. However, given the history of the litigation, she ordered that Ms. Thomson shall produce the financial disclosure set out in Justice Van Melle’s Order dated April 26, 2022 prior to commencing any further Motion to Change. She also ordered Ms. Thomson to pay $8,850.73 in costs and ordered that amount to be added to the child support arrears enforceable by the FRO.

[42] When Justice Mossip’s costs order was filed with the FRO on or about February 23, 2023, Ms. Thomson’s balance owing rose to $80,926.69 in combined costs and child support arrears. Justice Lemon’s Final Order remained in effect, requiring Ms. Thomson to pay $556 monthly in child support for M.G.D.

Second Motion to Change

[43] Ms. Thomson continued to make small voluntary payments to the FRO, mostly in the amount of $100. The FRO also continued to collect some payments through FOAEA diversion. The money received by the FRO was insufficient to cover Ms. Thomson’s monthly child support obligation, let alone pay anything toward the arrears. At some point in 2023, the FRO suspended her driver’s licence and passport for a second time.

[44] Ms. Thomson commenced her second Motion to Change on November 6, 2023. She seeks an order rescinding all child support arrears and reducing the amount of prospective child support for M.G.D. (who is currently enrolled in post-secondary education and resides with her father when she is not away at school). Specifically, she seeks an Order requiring her to pay (retrospectively and prospectively) the Table amount of child support based on her actual income, rather than the imputed income of $60,000. In her pleadings, Ms. Thomson declares the following amounts of investment income as her only source of income: $10,055 in 2017, $4,962.47 in 2018, and $12,884.74 in 2019. Her pleadings provide no income information for 2020, 2021, 2022 or 2023.

[45] Apparently, Ms. Thomson’s driver’s licence and passport have been reinstated. I have no evidence about how or when this occurred, but Mr. Punnett advised the court that it was in January 2024, pursuant to a motion that he brought on Ms. Thomson’s behalf in provincial court in December 2023. FRO records show that she resumed making voluntary monthly payments in the amount of $756 on March 1, 2024.

[46] Ms. Thomson did not comply with Justice Van Melle’s disclosure order dated April 26, 2022 prior to commencing her second Motion to Change, despite Justice Mossip’s clear order that she was required to do so. The parties attended a Case Conference on April 4, 2024. Justice Fowler Byrne ordered that Ms. Thomson “shall satisfy all outstanding disclosure and costs orders on or before April 26, 2024”, failing which Mr. Delmoro could schedule a motion to dismiss or strike her Motion to Change.

[47] Ms. Thomson has not paid the outstanding costs orders. The FRO records show that, as of May 14, 2024, she owed Mr. Delmoro $78,057.99, which includes $23,850.73 in costs.

[48] Ms. Thomson provided financial disclosure to Mr. Delmoro on April 24, 2024, including her 2020 and 2021 income tax returns, her spouse Darryl Billing’s 2023 T5 slips and T4A Statement of Canada Pension Plan Benefits, Darryl Billing’s Financial Statement sworn April 4, 2024, a Balance Sheet for Lidar Elmira Ltd., and an affidavit containing information about her current employment status, her efforts to obtain employment since separation, her travel schedule and travel expenses since separation; and health issues that have interfered with her ability to work. Ms. Thomson also filed an affidavit sworn on June 7, 2024, in which she deposed, “I have supplied all of the items that had been ordered by Justice Van Melle dated April 26, 2022.” Mr. Delmoro disputes that statement; he argues that Ms. Thomson’s disclosure remains incomplete.

[49] Rather than proceeding to a trial of Ms. Thomson’s second Motion to Change, Mr. Delmoro brings this motion for summary judgment, or for an order striking the Motion to Change.

ANALYSIS

Analytical Framework

[50] The court’s authority to decide a family law case by way of a summary judgment motion is set out in Rule 16 of the Family Law Rules, O. Reg. 114/99. Rule 16(6) provides: “If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.”

[51] The moving party bears the legal burden of establishing that there is no genuine issue requiring a trial: Chao v. Chao, 2017 ONCA 701, at para. 16. However, once the moving party leads evidence to support that position, the evidentiary burden shifts to the responding party: Sanzone v. Schechter, 2016 ONCA 566, at para. 30, leave to appeal refused, . Rules 16(4) and (4.1) stipulate:

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

[52] Rules 16 (6.1) and (6.2) set out the court’s fact-finding powers in a summary judgment motion:

(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

(6.2) The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

[53] Rules 16(6), 16(4.1), 16(6.1) and 16(6.2) are virtually identical to Rules 20.04(2)(a), 20.02(2), 20.04(2.1) and 20.04(2.2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The jurisprudence interpreting the Rules of Civil Procedure is therefore applicable to the Family Law Rules regarding summary judgment motions: O’Dacre v. Cross, 2019 ONSC 2265, at para. 17; Chao, at paras. 27-28.

[54] The analytical framework for deciding a summary judgment motion is set out in Hryniak v. Mauldin, 2014 SCC 7, at para. 66. The analysis involves a two-step inquiry. The motion judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the fact-finding powers in Rule 16(6.1) or (6.2). There will be no genuine issue requiring a trial “if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure.” If there appears to be a genuine issue requiring a trial, the motion judge should then determine if the need for a trial can be avoided by using the fact-finding powers set out in the Rules. “She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.”

[55] With or without the use of the fact-finding powers, summary judgment will only be appropriate if the motion record “gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute”: Hryniak, at para. 50.

[56] To defeat a motion for summary judgment, the responding party must put forward some evidence to show that there is a genuine issue requiring a trial: Rule 16(4.1). Both parties have an obligation to “put their best foot forward”: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 32, aff’d 2014 ONCA 878, leave to appeal refused, ; Ramdial v. Davis, 2015 ONCA 726, at para. 27; Chao, at para. 24. Given the onus placed on the moving party to provide a supporting affidavit or other evidence under Rule 16(4), “it is not just the responding party who has an obligation to ‘lead trump or risk losing’”: Ipex Inc. v. Lubrizol Advanced Materials Canada, 2015 ONSC 6580, at para. 28.

[57] The motion judge is entitled to assume that the record contains all the evidence that would be introduced by both parties at trial. A summary judgment motion cannot be defeated by references to what may be adduced if the matter is allowed to proceed to trial: Sweda Farms, at para. 33; O’Dacre, at para. 22. Neither party can “succeed on summary judgment by saying that further or better evidence would be available in the future”: Chao, at para. 24.

[58] I have applied the above principles and analytical framework in deciding this motion for summary judgment.

Pre-Conditions to Motion to Change

[59] This summary judgment motion is in respect of a Motion to Change a final order for child support. The court may vary an order for child support only if it is “satisfied that there has been a change in circumstances within the meaning of the Federal Child Support Guidelines or that evidence not available on the previous hearing has become available”: Family Law Act, R.S.O. 1990, c.F.3, s. 37(2.1). If one of those pre-conditions is satisfied, then the court may:

(a) discharge, vary or suspend a term of the order, prospectively or retroactively;

(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and

(c) make any other order for the support of a child that the court could make on an application under section 33.

[60] There is, therefore, a threshold issue in Ms. Thomson’s Motion to Change. The motion cannot succeed unless she can demonstrate either (i) a material change in relevant circumstances or (ii) that evidence not available at trial has become available.

No New Evidence

[61] Ms. Thomson’s lawyer submits in his factum that her Motion to Change should proceed to a trial because she should be given a chance to give evidence “materially different from that heard by Justice Lemon.” In her affidavit in response to the Summary Judgment Motion, she provides evidence that was not adduced during the trial before Justice Lemon, including evidence about her income, employment status and health status in the 5 years immediately following the parties’ separation, and her efforts to improve her education and self-employment prospects at that time.

[62] The evidence in question was available at the time of the trial. Ms. Thomson was given a chance to adduce it (at trial, in February 2019) and she did not do so. The only reason the evidence was not put before Justice Lemon is because Ms. Thomson did not show up for the trial. She cannot now seek a “do-over” of the trial, hoping for a more favourable outcome.

[63] The purpose of s. 37(2.1) of the FLA is not to give a losing party the opportunity to present more or better evidence at a second trial; rather, it provides an opportunity for reconsideration of the outcome of a trial when new evidence becomes available that was not available (with due diligence) at the time of trial. This is not a case in which new evidence has become available since Justice Lemon issued his Judgment in March 2019.

No Material Change in Circumstances

[64] Ms. Thomson argues that this Court can nevertheless vary Justice Lemon’s Order pursuant to s. 37(2.1) of the FLA because there has been a material change in circumstances within the meaning of the Federal Child Support Guidelines. The onus is on Ms. Thomson to prove the asserted material change in circumstances. For the reasons explained below, I have concluded that she has failed to do so.

[65] In a Motion to Change a Final Order for child support, when the alleged change in circumstances pertains to the payor spouse’s income, the court typically compares the income that was used to calculate child support at the time that the Final Order was made with the income that the payor spouse is currently earning. If there has been a change in the payor spouse’s income, the court then considers the amount of the change and examines when and why the change occurred to determine whether there has been a material change in circumstances: Trang v. Trang, 2013 ONSC 1980, at para. 42.

[66] However, in a case like this, where income was imputed to the payor spouse, the usual framework for analysis is neither helpful nor applicable. As Justice Pazaratz stated in Trang (at para. 46):

[I]f the original support order was based upon “imputed” income, a more comprehensive analysis is required on a motion to change. The court must consider:

a. Why did income have to be imputed in the first instance? Have those circumstances changed? Is it still appropriate or necessary to impute income, to achieve a fair result?

b. How exactly did the court quantify the imputed income? What were the calculations, and are they still applicable?

[67] Justice Pazaratz explained:

51. When a court imputes income, that’s a determination of a fact. It’s not an estimate. It’s not a guess. It’s not a provisional order awaiting better disclosure, or further review. It’s a determination that the court had to calculate a number, because it didn’t feel it was appropriate to rely on – or wait for -- representations from the payor.

52. A party who argues that an imputed income level is no longer appropriate must go beyond establishing their subsequent “declared” income. They must address why income had to be imputed in the first place. They must present evidence of changed circumstances which establish that either:

a. It is no longer necessary or appropriate to impute income. The payor’s representations as to income should now be accepted, even if they weren’t accepted before.

Or,

b. Even if income should still be imputed, changed circumstances suggest a different amount is more appropriate.

53. If “declared income” automatically prevailed on a motion to change support, it would defeat the purpose of imputing income in the first place. It might even be a disincentive for payors to participate in the initial court process. They could simply ignore support Applications – as they often do. They could wait to see if the court imputes income, and how much. If dissatisfied with the amount, the payor could later return to court waving their tax returns, to suggest that the original judge got it wrong.

54. Support claimants should not be forced to go through this two-step process. Our family court system certainly can’t afford it.

55. Similarly, the onus should not fall on the support recipient to establish why income should still be imputed on a motion to change. That determination has already been made. The onus is on the support payor to establish that there should be a change in the way their income is to be calculated.

56. If an aggrieved party feels income was wrongly imputed, they can take timely steps to correct the original determination. They can appeal. They can bring a motion to set aside the order based on mistake or misrepresentation.

57. But if a payor proceeds by way of motion to change, they must face the presumption that the original order was correct – and the original imputation of income was correct. If they want to rely on their declared income, they must establish why this time their representations should be accepted by the court.

[68] In this case, Justice Lemon did not find that Ms. Thomson was earning $60,000 in 2019. Rather, he found that she was capable of earning that amount annually from 2014 through to 2019 (and onward) but chose not to work. He imputed an income to her based on intentional unemployment and a failure to provide income information when under a legal obligation to do so: Federal Child Support Guidelines, ss. 19(a) and 19(f).

[69] For the reasons set out below, I have concluded that the circumstances that led Justice Lemon to impute an income of $60,000 to Ms. Thomson have not changed. It is still appropriate, in the current circumstances, to impute the same amount of income to her because her own evidence shows that she is intentionally unemployed. She is still capable of working and earning at least $60,000 annually, but she chooses not to do so.

[70] In her affidavit, Ms. Thomson deposes that, at some point after the parties separated and her employment was terminated, she decided to go back to school and took online courses with the goal of becoming self-employed in the equine industry. She provides no explanation for why she opted to change career paths and leave the insurance industry, where she had worked as a broker for more than a decade. I infer that her decision was influenced by the fact that her new partner, Mr. Billings, owns several horses, which they take back and forth to Florida each year.

[71] I note that all these facts were in existence and were known to Ms. Thomson when Justice Lemon presided over the trial in February 2019. They do not constitute a change in circumstances.

[72] In her affidavit, Ms. Thomson provides no evidence about what, if any, income she has generated from her efforts in the equine industry since March 2019. She provides little information about what she has done since the trial to develop the business and generate an income. She merely states that the cancellation of her passport privileges by the FRO negatively impacted her ability to grow the business because, “While in Florida I can network and train with top drivers. Combined [sic] drivers also have more opportunity to show in the US then [sic] in Canada.”

[73] Ms. Thomson states that she applied for two job postings at insurance brokerages in June 2020 and August 2020. She was granted an interview for the second posting, but a different candidate was ultimately hired. She provides no evidence of any other job applications or efforts made to secure employment in the insurance industry. Given the fact that she has been out of the labour market for many years and lives half of each year in Florida, her prospects of getting hired by a brokerage in Ontario are likely low. However, her low prospects are the result of her own choices (i.e., choices to leave the industry in 2014 or 2015 to pursue education in the equine industry, and to live half of each year in Florida).

[74] Ms. Thomson deposes that in September 2021, she became a consultant for a line of skin, hair, and makeup products. She says she has four clients, but she provides no evidence as to the income she has generated from those clients, apart from saying that it “has been negligible.” She provides no details of the efforts she has made to develop and grow her client base. She states that, “COVID, the economy and the temporary cancelling of my Driver’s License [by the FRO] … has made the growth of this business very difficult.”

[75] Ms. Thomson does not claim to be, nor to have been, unemployed because of disabling health related causes. She provides some information, without any supporting medical evidence, about discrete health episodes that she experienced in 2019 (gallbladder removal), March 2022 (broken ribs) and September 2023 (cyst removal). Had she been employed at the time of these events, they might have prevented her from working for a few weeks, but these events are not the reason why she is unemployed. She is unemployed because she elected to leave a field in which she had enjoyed steady gainful employment (i.e. the insurance industry) to pursue other interests that are less remunerative but more consistent with her desired lifestyle of living half of every year with her retired partner in Florida. The steps that she took to seek re-employment as an insurance broker in 2020 were minimal.

[76] Ms. Thomson was ordered to provide details as to how she has supported herself without working since the parties separated. In her affidavit, she deposes that her partner, Darryl Billings, supports her. She provides no details of the expenses that he pays for her. She simply states, “For my Birthday and Christmas, I am given money as a gift.” She does not disclose how much money she receives, or the regularity with which she receives money from Mr. Billings, apart from on her birthday and Christmas.

[77] Pursuant to Justice Van Melle’s and Justice Mossip’s orders, Ms. Thomson produced a Financial Statement sworn by Mr. Billings. It states that he has been retired for 10 years. The information in the statement is incomplete. For example, it identifies “pension income (including CPP and OAS)” in the monthly amount of $823 as Mr. Billings’s only source of income, yet it lists his gross income from all sources in 2023 as $214,464. Clearly, he has undeclared sources of income.

[78] In the list of Mr. Billings’s monthly expenses, the Financial Statement does not include any expenses related to supporting Ms. Thomson, although she claims to be entirely financially dependant on him. The statement does not include a list of Mr. Billings’s assets, apart from a couple of bank accounts, even though it is clear from the record that Mr. Billings owns a property, a truck, a flatbed trailer, a John Deere tractor, and several horses. Evidently, a significant amount of relevant financial information is omitted from the Financial Statement.

[79] Other items of Ms. Thomson’s disclosure are similarly incomplete. For example, in response to the court order that she provide details of her travel schedule and travel expenses since the parties separated, she deposes that she used funds from the sale of a house in Everton to pay for a trip to Paris in 2015, and she states that any travel to countries other than the United States was paid for by Mr. Billings, who also pays the fuel expense when they travel to and from Florida. She notes that they sleep in their truck rather than in hotels when they are driving between Ontario and Florida. She provides no particulars of the number of international trips she has made, the dates she travelled, the purpose of the trips, the countries she visited, the duration of the trips, or the amount of travel expenses covered by Mr. Billings. I infer from the lack of full disclosure that Ms. Thomson has enjoyed considerable leisure travel over the years, while defaulting on her child support payments.

[80] Based on her own evidence, I find that Ms. Thomson has made only token efforts to seek employment in her field, and minimal efforts to develop income-generating businesses in other fields. She has made voluntary decisions that have negatively impacted her income-earning potential based on a desire to reside with her spouse, who is retired, for half of each year in Florida. I accept Mr. Delmoro’s submission that she effectively decided to retire with her new partner shortly after the parties separated. She is and has been (for almost 10 years) intentionally unemployed or underemployed.

[81] Ms. Thomson was intentionally unemployed when Justice Lemon made the Final Order on March 12, 2019. She remains intentionally unemployed today. Continued imputation of income is therefore appropriate.

[82] There is no evidence before the court to show that a different amount of income (i.e., less than $60,000 gross annually) should be imputed to her. Whatever the reason for the termination of her last job as an insurance broker, had she continued to pursue her career in that industry she would almost certainly be earning significantly more than $60,000 annually today.

[83] I conclude that there has been no material change in circumstances that would trigger this court’s discretion to change the terms of Justice Lemon’s Final Order. As explained below, a trial is not required in order for me to arrive at this conclusion.

No Genuine Issue Requiring a Trial

[84] There is nothing in the material filed by Ms. Thomson that raises a genuine issue requiring a trial of her Motion to Change. Her counsel argues that she has “a prima facie case to proceed to trial.” That is not the legal test on a summary judgment motion. The test is whether the motion provides a procedure and evidence to arrive at a fair and just result, while serving the goals of timeliness, affordability and proportionality, such that a trial is not required. I am confident that the evidence in the motion record allows me to make the necessary findings of fact and apply the relevant legal principles to resolve the dispute between the parties in a fair way with a just outcome.

[85] I have taken into consideration the requirement that each party must put their best foot forward. Assuming that the motion record contains Ms. Thomson’s best evidence, Mr. Delmoro has met his onus of showing that a trial is not required and that the Motion to Change will not succeed if it proceeds to a trial.

[86] Most of the facts of this case are easily ascertainable from the evidence, and reasonable inferences can be drawn from Ms. Thomson’s continued failure to make full disclosure of relevant documents and information. There is no genuine issue requiring a trial. Mr. Delmoro’s motion for summary judgment is therefore granted.

Alternate Grounds for Relief

[87] Had I dismissed Mr. Delmoro’s motion for summary judgment, the Motion to Change still would not have proceeded to a trial because I would have granted his motion to strike Ms. Thomson’s pleadings. Rule 1(8) of the Family Law Rules authorizes the court to make any order that it considers necessary for a just determination of a matter where one of the parties fails to obey an order in a case. The Rules contain a non-exhaustive list of possible remedial orders, including striking out a Motion to Change: Rule 1(8)(c).

[88] Ms. Thomson has repeatedly failed to obey court orders. She has not paid the outstanding costs orders against her, despite Justice Fowler Byrne’s order that she do so by April 26, 2024 or risk having her Motion to Change struck. As described above, she has only partially complied with the disclosure orders made by Justice Barnes on October 24, 2017, Justice Van Melle on April 26, 2022, Justice Mossip on February 16, 2023, and Justice Fowler Byrne on April 4, 2024. She has not even made the most basic financial disclosure of producing her income tax returns and Notices of Assessment for 2022 and 2023 – a fundamental disclosure obligation in any case involving child support, which should not even require a court order. Her counsel argues that any incomplete disclosure “can be fixed before trial”. It would bring the administration of justice into disrepute if she were permitted to seek relief from the court while still ignoring prior orders: Sarassra v. Sarassra, 2019 ONSC 3290, at para. 34.

[89] I recognize that the power to strike out pleadings pursuant to Rule 1(8)(c) is to be used sparingly and only in exceptional cases: Roberts v. Roberts, 2015 ONCA 450, at para. 15. This is such a case. There are no other available remedies that would achieve justice in the circumstances.

[90] Furthermore, Ms. Thomson’s persistent breaches of court orders warrant an additional order pursuant Rule 1(8)(e) disentitling her to any further order from the court without leave and without first paying all the costs that she has been ordered to pay in these proceedings.

ORDERS

[91] I hereby make the following Orders:

a. Ms. Thomson’s Motion to Change the Final Order of Justice Lemon dated March 12, 2019 is dismissed. b. Ms. Thomson must pay all outstanding costs orders in this case before she may bring any further steps in this proceeding or commence any further proceeding in relation to child support. c. Ms. Thomson must serve and file a motion to obtain leave of the court before she may bring any further steps in this proceeding or commence any further proceeding in relation to child support. Any motion for leave must be accompanied by evidence proving that she has paid all outstanding costs orders.

[92] Mr. Delmoro is presumptively entitled to his costs of this summary judgment motion and of the Motion to Change: Rule 24.1. The parties are encouraged to negotiate and try to settle the issue of costs. If a resolution cannot be negotiated, the parties may make written submissions and I will decide the issue.

Justice C. Petersen Released: July 4, 2024