CITATION : G.(P.) v. R.(L.) , 2024 ONSC 3907

COURT FILE NO.: FS-20-0073 DATE: 2024/07/10 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: P.G. Applicant – and – L.R. Respondent

Counsel: Self-represented (for the Applicant) D. Chohan and G. Pellerin, for the Respondent E. Fitzpatrick, for the Office of the Children’s Lawyer J. Faria, for the Director, Family Responsibility Office

HEARD: June 28, 2024

REASONS FOR DECISION ON MOTION

Ellies R.S.J.

OVERVIEW

1The applicant, P.G., moves under r. 14 of the Family Law Rules, O. Reg. 114/99, for several things, including a parenting time order, a refraining order under s. 35 of the Family Responsibility and Support Arrears Enforcement Act 1996, S.O. 1996, c. 31 (the “Act” or the “FRSAEA”), and a retroactive variation of his child support obligation, effective September 2021. The motion is opposed by the respondent, L.R., and by the Director of the Family Responsibility Office (“FRO”).

2For the following reasons, the motion is dismissed, without prejudice to the applicant filing further and better evidence on the issue of parenting time.

BACKGROUND

3The order that the applicant seeks to refrain FRO from enforcing and to vary was made by me following a trial held in 2023. For reasons released on September 1, 2023, I ordered that the children were to reside permanently with the respondent and that the respondent was to have decision-making responsibility with respect to them. I suspended the applicant’s parenting time and prohibited him from contacting the children for four months, during which time I ordered him to obtain counselling to help him deal with the effects of the parties’ separation on him and the effect on the children of his repeated failures to follow court orders. In addition, I ordered the applicant to pay child support in the amount of $3,091.00 per month and spousal support in the amount of $609.00 per month: 2023 ONSC 4988.

4On May 24, 2024, the applicant received a “First Notice” from FRO, advising that his driver’s license was going to be suspended unless he paid or arranged to pay support arrears in the amount of $118,813.22 by July 3, 2024. The present motion was served by the applicant before June 14, 2024, and made returnable on the first motion date thereafter. The respondents have not yet had time to respond. However, as I will explain, there is no need for them to do so.

ISSUES

5In the motion, the applicant seeks the following orders:

(1) an order removing FRO from the case; (2) an order that FRO refrain from suspending his driver’s license; (3) an order varying the child support retroactively to September 2021; and (4) an order that he be permitted to have parenting time with the two oldest children, as per their wishes.

6In the analysis that follows; I will deal briefly with each of these requests in the order listed above.

ANALYSIS

The request for an order removing FRO from the case

7Simply put, the court has no authority to remove FRO from this case.

8FRO is a creature of statute. Under s. 5 of the Act, the Director of FRO is required to enforce support orders where the support order and the related support deduction order is filed in the Director’s office and to pay the amounts collected to the person to whom they are owed. While the Director may refuse to enforce a support order in certain circumstances, for example those set out in ss. 7, 8.1, 8.1.1, and 8.2, and is required to cease enforcement under s. 8 of the Act where support obligation is terminated, there is nothing in the Act permitting the court to order that the Act not be applied.

9As I will explain, even if there were, I would not make such an order.

The request for a refraining order

10Under s. 35 of the Act, a payor such as the applicant may make a motion for an order that the Director refrain from directing the suspension of the payor’s driver’s license on terms the court considers just. Such a motion must be made within the time specified in the notice, which was done in this case.

11However, two other conditions must be fulfilled before the court can make a refraining order under s. 35. Neither condition has been fulfilled here.

12First, under s. 35(7), the payor making the motion must serve and file a financial statement and proof of income along with the Notice of Motion. While the applicant has provided copies of his tax returns for the years 2021, 2022, and 2023, he has not provided a sworn financial statement showing both his income and his expenses.

13The second condition that remains unfulfilled is that the payor must either bring or undertake to bring within 20 days a Motion to Change the support order being enforced. A Motion to Change is not a motion for a temporary order under r. 14 of the Family Law Rules. Rather, a Motion to Change is a motion for a permanent order. It is a completely different motion, provided for under s. 17 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) and s. 37 of the Family Law Act, R.S.O. 1990, c. F.3. It is governed by r. 15 of the Family Law Rules, not by r. 14.

14While it is tempting to pass off the applicant’s procedural error as one that could be made by any self-represented family law litigant, the applicant is not just any self-represented family law litigant. As I made clear in my reasons of September 1, 2023, the applicant has been before the court many times since the parties separated in 2020 and has sought on many occasions to enforce the Family Law Rules to his advantage.

15Even if I were inclined to treat the applicant’s failure to bring a proper Motion to Change as a curable procedural defect, I would not grant the request for a refraining order, for reasons I will now explain.

The request for an order varying the child support order retroactively to September 2021

16A court may grant a refraining order before a Motion to Change has been determined where two conditions are met. First, the moving party payor must demonstrate a prima facie case on the merits of the Motion to Change. Second, the moving party must come to the court with “clean hands”, meaning that, among other things, equitable relief such as a refraining order will not usually be granted to a person who has not shown respect for the very justice system from which he seeks relief: Garneau v. Ontario (Director, Family Responsibility Office), 2010 ONSC 2804, at para. 37. Again, neither condition has been fulfilled here.

17As both s. 17 of the Divorce Act and s. 37 of the Family Law Act make clear, in order to succeed on a Motion to Change, the moving party must demonstrate a material change in circumstances since the order in question was made. The applicant has not done that.

18The applicant deposes that he is totally physically disabled and that he is, therefore, unable to earn income to pay the child support ordered. As proof, he offers only a photograph showing him on a hospital bed, dressed in a hospital gown, with what appear to be two bandages on his back. He also offers what appears to be a schedule of physiotherapy sessions spanning from June 11 to July 31, 2024, and a handwritten note dated May 30, 2024, apparently from a physiotherapist to a doctor. In the note, the author refers to “L4-5 lumbarectomy, L3, L4, L5, S1 radiculopathy”. There is no report from any health professional explaining what the procedure was for, the effect of the underlying problem on the applicant’s ability to work, and what effect the procedure will have on the applicant’s ability to work in the future.

19More importantly, there is nothing new about the applicant’s lower back issues. These were just some of the reasons the applicant put forward in support of his submission during the 2023 trial that he could not work. I rejected this submission in my September 1, 2023, reasons, at paras. 98-100. The evidence the applicant now relies upon is insufficient, in my view, to revisit the position I took then.

20Even if the evidence was better, I would not grant the refraining order requested because the applicant has not come to the court with clean hands. As I set out in detail in my September 1, 2023, reasons, the applicant continually breached court orders throughout the proceedings leading up to the trial and even during the trial itself. As I also explained in detail, it was my opinion based on the evidence that the applicant quit his lucrative employment to avoid paying support.

21It is rather ironic that the applicant now comes before the court asking to keep his driver’s license based, in part, on his hope that he may one day return to work.

The request for an order that the applicant be permitted to have parenting time with the two older children

22In my order of September 1, 2023, I provided that the court would review the issue of parenting time no earlier than four months from that date, provided that the applicant adduced sufficient proof that he had obtained and participated in the required counselling. Unfortunately, once again, the applicant has failed to do that.

23I can find no reference to counselling in the applicant’s affidavit. The only possible evidence of counselling appears to be an email from someone named “Aneta Chencinski”, referring to “30-minute sessions” between 2021 and 2024. There is nothing to identify the sender’s area of expertise or what the sessions were for. As such, the applicant has failed to fulfil the prerequisite set out in my September 1, 2023, order, which prerequisite must be fulfilled before the court will revisit the issue of parenting time without a material change in circumstances.

CONCLUSION

24The applicant has failed to satisfy the prerequisites necessary to obtain any of the relief he seeks.

25Nonetheless, in my view, the applicant ought to be given an opportunity to submit further and better proof regarding the counselling requirement without having to deliver a new Notice of Motion relating to the issue of parenting time. For that reason, that aspect of the motion, and only that aspect of the motion, will be addressed again at the assignment court on August 8, 2024. The applicant and the respondent will be provided with the Zoom coordinates by the Trial Coordinator.

Costs

26I am not inclined to award any costs on this motion.

27None of the relief requested was granted. Therefore, there is no basis upon which the applicant might ask for costs. While the respondent and FRO were successful in opposing the applicant’s motion, they were not required to prepare any responding materials and the appearance on the motion was brief.

28Even if I were to award costs in favour of the respondents, the costs debt would just be piled on top of the other debt owed by the applicant, which will already take years to pay off.

29However, if either of the respondents wish to ask for costs, they may make written submissions of no more than five pages, excluding attachments, within 20 days of the date of these reasons. Submissions received after that date will not be considered.

M.G. Ellies J. Released: July 10, 2024

COURT FILE NO.: FS-20-0073 DATE: 2024/07/10 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: P.G. Applicant – and – L.R. Respondent REASONS FOR Decision on motion M.G. Ellies R.S.J. Released : July 10, 2024