Court File and Parties

COURT FILE NO.: FS-19-0071-00 DATE: 2024-02-09

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Joanna Patricia DeCicco v. John Thomas MacNeil

HEARD: February 8, 2024 BEFORE: Fitzpatrick J.

COUNSEL: J. Brown, for the Applicant C. Arnone, for the Respondent

Endorsement on Motion

[1] Both parties bring motions in this family dispute. Both counsel submitted draft orders in support of their motion material. Responding to the draft orders, counsel for Mr. MacNeil indicated certain items of Ms. DeCicco’s draft order are agreed for the purposes of a further order. They are:

a. As of January 1, 2024, both the applicant and the respondent will be responsible for 50 per cent of mortgage payments on a property known municipally as 157 Hogan Road, Nipigon Ontario;

b. The respondent will pay the property taxes on an ongoing basis for 157 Hogan Road;

c. The respondent will produce his 2023 Income Tax Return and Notices of Assessment by June 15, 2024;

d. The respondent will produce his 2022 Income Tax return and notices of assessment on or before March 8, 2024.

[2] Both draft orders contained a clause fixing arrears arising from the temporary orders of Newton J. dated August 23, 2022, and Fregeau J. dated June 8, 2021. The draft orders contain similar language on this issue but vary as to the amount of the arrears and the date at which the arrears are fixed.

[3] Counsel for the Applicant argued that in the face of the concessions made by the Respondent, the amount of the arrears currently being enforced by the Family Responsibility Office (FRO) should be fixed at $21,584.90 as at February 2, 2024.

[4] Counsel for the Respondent argues arrears should be fixed at $9,927.32 as at December 31, 2023.

[5] Despite the able arguments of counsel for the Applicant, I am persuaded that the provision of paragraph 1 of the proposed draft order of the Respondent should be incorporated in yet another interim order of this court.

[6] I say this for the following reasons.

[7] There appears to be a genuine dispute as to arrears of child support and spousal support going back to 2017. The Applicant asserts she is owed over $200,000.00 in arrears. Counsel for the Applicant rightly acknowledges this issue will take a trial to resolve.

[8] Counsel for the Respondent explained the differences in the arrears calculation between December 31, 2023 and February 2, 2024. He argued it consists of the following amounts;

a. $3,399.68 for January payments of child and spousal support

b. $3,262.83 for section 7 expenses; and

c. $4,517.29 for property tax payments for the home at 157 Hogan Road Nipigon

[9] Property tax payments are not usually identified as constituting either child or spousal support in family court orders. From my review of the orders of Newton J. and Fregeau J. (collectively the Orders) I agree that property taxes are not amounts that are even addressed let alone ones that fall within orders made to be collected by the FRO. I was persuaded by the arguments of the Respondent that this amount was included in the Applicant’s calculation of arrears.

[10] I accept the submission of the Respondent that the amount of section 7 expenses are in dispute. The Applicant’s submissions made a great deal of the fact that the Applicant is paying post secondary expenses for one of the children of the marriage. The Orders specify percentages of section 7 expenses that should be paid but do not specify what expenses exactly are to be paid by the parties. No question, section 7 expenses provide much unfortunate ground for dispute in family litigation. This is not a good thing. However, I agree with the submissions of the Respondent that including the express amount of $3,262.83 for section 7 expenses is prejudicial to the ultimate resolution of the section 7 issue which should take place at a trial.

[11] The alleged inclusion of amounts owing for January 2024 child and spousal support in the arrears is only material if the date of the arrears is fixed following January 1, 2024. I am persuaded that is most reasonable to fix arrears for the FRO at December 31, 2023, rather than February 2, 2024 because it is a more certain number and does not prejudice FRO or the Applicant for making claims for these amounts in future.

[12] I was persuaded that by fixing arrears as of December 31, 2023, the Applicant will be able to continue to assert her claim that somehow, on a monthly basis, the Respondent is not making the payments as required by the Orders. The arrears admitted to be owing by the Respondent are substantial, even by his own calculations. I am persuaded that they will be quickly caught up by FRO garnishing a bonus payment that is anticipated to be made to the Respondent in the very near future. Also, the FRO is directed by the order of Newton J. to collect $1,838.00 per month for child support and $4,160 per month for spousal support. They are going to do what they are ordered to do unless a further court order directs otherwise. I am confident they will collect the ongoing amounts as they can. I was persuaded that fixing arrears as of December 31, 2023 is a more fair way to ensure that money will flow as it should without unduly pressuring either party economically in what appears to be litigation that is destined for trial.

Next steps

[13] The parties separated in January 2017. The action was commenced in 2019. I did not have the benefit of the continuing record on this matter as it was commenced pre Covid and has not been loaded in to Caselines. The parties now have seen three different judges for interim motions in a complement that now consists of six judges, (one being added a week ago). More than 50 percent of the Northwest Judicial complement have adjudicated on the dispute between these parties in the last four years. I say all this because this matter has not been on a trajectory that is contemplated by the Family Law Rules. Motions for temporary relief should be the exception and then once held, the parties should get along to trial. If they do not, the relatively effective method of family dispute resolution designed for this province is frustrated. Granted, I do not have the continuing record and I do not know how many conferences these parties have had. But, I do know this motion/counter motion strategy is going to end for this file.

[14] I order that no further motions of any kind can be brought in this matter without leave. Further, the parties are to arrange a trial management conference to occur on or before May 31, 2024, with a view to having this matter placed for trial on the trial sittings commencing September 3, 2024.

[15] No costs for today’s attendance as I see success having been divided for both motions.

[16] Accordingly order to go as follows:

1. Pursuant to the temporary Orders of Justice Newton, dated August 23, 2022, and Justice Fregeau, dated June 8, 2021, arrears of child and spousal support payable by the Respondent, John MacNeil, to the Applicant, Joanna Decicco, are hereby fixed at $9,927.32 as of December 31, 2023. This calculation of arrears takes into account the costs payable by the Applicant to the Respondent pursuant to the Order of Justice Fregeau, and the costs payable by the Respondent to the Applicant pursuant to the Order of Justice Newton.
2. The Family Responsibility Office ("FRO") is hereby ordered to update their records.
3. On or before June 15, 2024, the Respondent shall produce his 2023 Income Tax Return and Notices of Assessment to the Applicant;
4. On or before March 8, 2024, the Respondent shall produce his 2022 Income Tax Return and Notices of Assessment;
5. On or before March 29, 2024, the Respondent shall pay to the Township of Nipigon the sum of $4,517.19 in respect of property taxes for 157 Hogan Road, Nipigon;
6. Commencing January 1, 2024, the Applicant and the Respondent will each be responsible for 50 percent of the monthly mortgage payments in respect of 157 Hogan Road, Nipigon;
7. Neither party shall bring any further motions without leave of the Court;
8. The parties shall arrange a trial management conference to occur on or before May 31, 2024, with a view to having this matter tried on the September 3, 2024, running list;
9. No order as to costs for today’s attendance.

“originally signed by”

The Hon. Mr. Justice F.B. Fitzpatrick

DATE: February 9, 2024