COURT FILE NO.: FS-16-410373-0001 DATE: 20240725

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MASON TOODEH, Applicant – and – ANNA KARMANOVA, Respondent

Self-represented Applicant Self-represented Respondent

HEARD: June 20, 2024

HOOD J.

REASONS FOR DECISION

Introduction

[1] What was before me apparently started out as a motion to change brought by the applicant father (the “AF”) in relation to a number of consent orders.

[2] On November 9, 2016, the parties entered into a final consent parenting order for their two boys, then aged 7 and 5. The children were to reside primarily with the respondent mother (the “RM”), with the AF having parenting time on Tuesday and Thursday evenings from 6 p.m. to 7 p.m. and on alternate weekends from Friday at 6 p.m. to Sunday at 7 p.m.

[3] In the consent order the parties agreed to a holiday schedule for various weekends, holidays and the summer and Christmas breaks. They also agreed on decision making.

[4] On April 7, 2017, the parties entered into a final consent order dealing with equalization, child support and s. 7 expenses. They agreed that there would be no spousal support. This consent order provided that any support amounts would be enforced by the Family Responsibility Office (the “FRO”). The monthly child support was set at $1,376 based upon the AF’s income of $96,700. This income amount was based upon his net business income as an independent contractor with certain expenses added back after being grossed up. Under the consent order, the AF was to provide ongoing financial disclosure pursuant to s. 24.1 of the Ontario Child Support Guidelines, O. Reg. 391/97 and s. 25 of the Federal Child Support Guidelines, SOR/97-175 (the “Federal Guidelines”).

The AF’s Motion to Change

[5] While not contained in any of the motion material filed or uploaded to CaseLines, I was advised by the AF during submissions on the motion itself that he fell into arears with respect to his regular child support payments and s. 7 expenses. As a result, the FRO began to take enforcement steps.

[6] In order to stop the FRO enforcement, the AF brought a motion to change. Neither party provided the motion to change or any of the initial materials which would have been filed for the motion to change.

[7] On October 3, 2018, Monahan J., presumably as part of the initial motion to change, made an order varying the April 7, 2017 financial order by reducing the monthly child support to $1,000 per month, based upon a temporary income of $66,600. The payments towards the s. 7 expenses were suspended until July 2019. In July 2019, following delivery of the previously ordered disclosure by the AF, the parties were to meet and discuss the ongoing child support and s. 7 expenses. If unable to agree they were to return to mediation services at Mediate393. The RM was to continue to send an accounting of all s. 7 expenses to the AF and the amount was to be reconciled in July 2019 based upon his proportion of 48.5 percent in accordance with the April 7, 2017 order.

[8] Since the interim order of Monahan J., very little has happened. Apparently, the parties attended mediation in 2019 without success. The RM states in her affidavit that the AF failed to provide her with the required and ordered disclosure so they were unable to discuss the support issues, and because of this the mediation was unsuccessful. The AF also failed to discuss the s. 7 expenses, although the RM did acknowledge that she failed to send the accounting of s. 7 expenses to him as required. She says she believed it would have been an exercise in futility to send him the required accounting as he would have just ignored it.

[9] The RM has now provided the AF with the s. 7 receipts, but the AF has not acknowledged them or offered to contribute towards them. He has continued to pay the $1,000 per month in child support as ordered by Monahan J.

The RM’s motion

[10] Due to the lack of any response from the AF and the lack of any movement forward on the AF’s motion to change, the RM decided to serve a notice of motion seeking financial disclosure from the AF and an order that he pay child support in accordance with his income, that he pay his share of s. 7 expenses, and that he pay retroactive child support and s. 7 expenses.

[11] This motion was initially returnable June 13, 2023. In support, the RM filed a short affidavit of May 21, 2023. In response, the AF filed a cross-motion asking to vary his child support and percentage of s. 7 expenses, complaining about the RM’s failure to follow the agreed parenting plan, and asking for an order that the parenting plan be changed to an equal one. He filed a very brief affidavit in support, dated June 5, 2023. In it he stated that he was unemployed and that he was attaching his termination letter. Nothing was attached to the affidavit as uploaded to CaseLines. At some point he filed and uploaded to CaseLines an unsworn financial statement, claiming an income (of an undisclosed date) of $37,800 and expenses of $107,361. In response, the RM filed a brief affidavit of June 12, 2023, stating that there was no reason for the AF to be unemployed given his level of education and his work experience.

[12] The motion did not proceed on June 13, 2023, as scheduled. Instead, Shore J. directed the parties to a case conference to, among other things, sort out whether there was a motion to change and whether the scheduled motion brought by the RM should proceed.

[13] At the case conference of January 3, 2024, Ramsay J. granted leave for the RM’s motion to proceed on January 16, 2024 and directed that the case conference would continue on February 5, 2024 to address the AF’s cross-motion. Although affidavit materials had already been exchanged, she set up a timetable for the exchange of materials and confirmed that both parties agreed to provide disclosure as contemplated by the previous orders.

[14] On January 16, 2024, the return date of the RM’s motion, Schabas J. adjourned it as being premature and returned the matter to the February 5, 2024 case conference. He also ordered disclosure primarily from the AF, including signed financial statements prepared by his accountant for his company from 2018 to 2023 and all statements received from the Canada Revenue Agency (the “CRA”) from 2018 to 2023, along with detailed calculations of his income, as was done for the initial financial order of April 7, 2017, from 2018 to 2023, with support of the figures he used in all the calculations. Everything was to be uploaded to CaseLines.

[15] At the returned case conference of February 5, 2024, the RM’s motion and the AF’s cross-motion were set to be heard on June 20, 2024. In the interim, the parties were to try mediation. Mediation was unsuccessful.

[16] As a result, the two motions came before me. The materials consisted of the three above-mentioned affidavits. None of the financial information, as ordered by Schabas J. to be produced and primarily from the AF, was part of the record before me.

Decision

[17] A change to a final order can be made only if there has been a material change in circumstances since the date the order was made. Both the November 9, 2016 and April 7, 2017 orders were final.

[18] Section 17(5) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) and s. 29(1) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, set out the factors a court should consider before it makes a variation order in respect of a parenting order. Change alone is not enough. There must be a change in the circumstances of the children that has altered the needs of the children or the ability of the parents to meet those needs in a fundamental way. The circumstances relied on must be ones that were either not foreseen, could not have been reasonably contemplated by the court who made the existing order, or were clearly not factored into the initial decision making. For the change to be material, the change must be such that if it had been foreseen, reasonably contemplated or factored into the initial decision making, it would likely have resulted in different terms.

[19] Not every circumstance or event that affects a child will be considered a material change for the purposes of a variation application. A party’s non-compliance with an existing court order can amount to a material change if the breaches have affected or are likely to affect the child’s best interest.

[20] There is no satisfactory evidence of non-compliance with the parenting order by the RM other than bold unsupported assertions by the AF, which are denied by the RM. During argument before me, the AF stated that the boys are now 14 and 12 years old and that because of this he should have equal parenting time. Changes in a child’s age and level of maturity will not generally, in and of themselves, satisfy the threshold test for varying a parenting order. It is not as if the change in age and maturity was not foreseen when the initial parenting order was made in 2016. The AF stated numerous times in argument that “the boys need their father” and “he wanted to be more in their lives.” There is nothing in the affidavit evidence or in the material in support of these statements by the AF. In my view, it was more that the AF “needed the boys” to be on an equal parenting plan so as to avoid his ordered child support payments.

[21] In his affidavit, he stated that he was seeking equal parenting time in order to improve the living conditions of the boys. There was no evidence of their living conditions or that they needed material improvement, other than the fact that they share a bedroom when living with the RM, whereas he can provide each of them a bedroom. This is not material and there is no evidence to support this being an unforeseen change.

[22] What would improve the living conditions of the boys more than anything would be for the AF to pay his share of the s. 7 expenses, to make proper financial disclosure, and to pay his ordered initial child support. Despite the numerous and continuing orders to make financial disclosure, and his alleged lack of income, the AF failed to provide anything in support of his position on the return of his motion other than an unsworn financial statement.

[23] The financial statement shows very little but discloses that he owns a 2022 Audi SQ5, a luxury SUV that he values at $65,000, without any offsetting car loan. He acknowledged before me that the information about the car was accurate. While able to buy this car without any financing he was apparently not able to continue paying child support of $1,376 per month or s. 7 expenses, and only able to pay $1,000 per month.

[24] The onus lies on the AF seeking to change the existing parenting order to satisfy the threshold test for variation as previously set out. He has failed to do so. His initial motion to change the parenting order of November 9, 2016 is dismissed.

[25] His cross-motion of June 6, 2023, brought in response to the RM’s May 26, 2023 motion seeking financial disclosure, child support, his share of s. 7 expenses, and retroactive child support and s. 7 expenses, is also dismissed.

[26] As the AF’s motion to change is dismissed, the ongoing child support and s. 7 expenses are to be paid in accordance with the existing order of April 7, 2017, of $1,376 per month for child support and 48.5 percent of the children’s s. 7 expenses. The temporary order of Monahan J. of October 3, 2018, altering the original order of April 7, 2017, is hereby set aside.

[27] Unless the support order is withdrawn from the Office of the Director of the FRO, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they were owed.

[28] A support deduction order shall issue.

[29] The AF and the RM agreed on the motion before me that the child support and s. 7 arrears owing from the AF to the RM from 2018 to 2023 equal $2,440. The AF agreed that he would pay this amount. There was no suggestion by the AF that he could not pay this immediately. His complete lack of financial disclosure to the court as ordered on more than one occasion mitigates against any argument that this should not be paid immediately. This amount is to be paid by the AF to the RM on or before August 9, 2024. If not paid, it is to be enforced by the Director as child support.

[30] The AF is to provide ongoing financial disclosure pursuant to s. 25 of the Federal Guidelines, including the financial information as ordered by Schabas J. in his order of January 16, 2024. As ordered by Schabas J., in addition to the financial disclosure pursuant to s. 25, the AF is to produce:

a) all T1s, T2s and Notices of Assessment from 2018 to present for himself, Toodeh Inc., and any other corporate entities or unincorporated entities through which he carries on business and earns income, along with all his business expenses;

b) annual detailed financial statements for Toodeh Inc. signed by his accountant for the years 2018 to 2024, along with all back-up documentation; and

c) all HST and all other statements received from the CRA in relation to his businesses, including Toodeh Inc., from 2018 to present.

[31] At the close of argument both parties indicated that neither party was seeking costs for the motion to change or the other motions before me. Accordingly, there is no order as to costs.

Justice K. Hood Released: July 25, 2024