Superior Court of Justice – Ontario

Court File No.: FS-14-0030-001
Date: 2025-03-05

Re: Audrey Duval, Applicant
v.
Otto Budziak, Respondent (Moving Party)

Heard: February 26, 2025, in Fort Frances, Ontario
Before: F.B. Fitzpatrick
Counsel:

• No one appearing for Audrey Duval
• G. Djonin, for the Moving Party (“Respondent”)
• P. Howie, for the Family Responsibility Office (“FRO”)

Endorsement on Uncontested Trial

[1] In July 2023, Mr. Budziak commenced a motion to change the order of Fregeau J. dated June 9, 2015 (“the Order”). The motion to change and supporting materials were personally served on Audrey Duval on July 20, 2024 (about a year after the matter was issued by the Court) as evidenced by the affidavit of service of Cynthia Taylor dated August 12, 2024.

[2] The Order required Mr. Budziak to make monthly spousal support payments to Ms. Duval in the amount of $1,166.00 commencing July 1, 2015.

[3] The motion to change indicated that Mr. Budziak was seeking the following relief:

1. No spousal support is owing in this matter;
2. As of January 1, 2023 there are no spousal support arrears owing in this matter.

[4] Mr. Budziak filed two affidavits in support of this uncontested trial, both dated September 26, 2024. Among other things, in his lengthier Form 14C affidavit, he deposed that Ms. Duval had not responded to his application and did not serve or file a response to the motion to change.

[5] In Mr. Budziak’s Form 23 affidavit the relief sought on this uncontested trial was significantly expanded from that contained in the original motion to change. It included an alternative plea for a recalculation of the amount of support owing. It also included a request for relief asking that the support order be withdrawn from the Family Responsibility Office and not enforced by the Director. This caught the attention of the Director who retained Mr. Howie to appear on this uncontested trial.

[6] The affidavit material filed on this uncontested trial did not include evidence necessary for the Court to grant much of the relief requested by Mr. Budziak. I agree with counsel for FRO that I do not have the jurisdiction to withdraw the order from the Family Responsibility Office without the consent of the support recipient.

[7] Further, the affidavit evidence before the Court did not sufficiently particularize the following important facts necessary to adjudicate this motion to change even on an uncontested basis:

1. Mr. Budziak’s income from 2016 to 2019;
2. Any payments voluntarily or otherwise made by Mr. Budziak in respect of the Order;
3. Particulars and payments made in respect of the alleged agreement entered into with FRO as of March 2023;
4. SSAG calculations necessary for the court to even consider the request to recalculate the arrears even assuming Ms. Duval was in receipt of minimum wage income for the period July 1, 2015 to date;
5. The income and basis upon which the Order was made in 2015.

[8] The affidavit evidence was sufficient with respect to one point material to the relief requested by Mr. Budziak. I find a material change in circumstances has occurred for Mr. Budziak as of January 1, 2022. At that time Mr. Budziak’s annual income for 2021 was reduced from what he had been earning at the time of the Order. His 2021 income was in the order of $18,720. His income apparently remained at that level for 2022. For 2023 it was in the order of $24,800. For 2024 it was $12,480.00.

[9] I accept Mr. Budziak’s affidavit evidence that at the time the Order was made, his income was around $50,000 per year. His material did not disclose any tax return evidence to substantiate his 2016 through 2018 income. He did provide income tax return evidence to evidence his income in 2019 of $49,920. A financial statement filed indicated that his annual income in 2020 was $47,840.00.

[10] I could discern from the material that Mr. Budziak and Ms. Duval were together for ten years. The order for spousal support is now coming on ten years. On a very rough basis, in the face of his decline in income starting in 2021, I am prepared to exercise my discretion to terminate any ongoing obligation for Mr. Budziak to pay spousal support to Ms. Duval commencing March 1, 2025, pursuant to section 37(2)(a) of the Family Law Act.

[11] The matter of the quantum and payment of arrears in respect of the Order is an entirely different matter. Also, I agree with the submissions of counsel for the FRO that the matter before me today was not properly framed as a motion to obtain an order to have the FRO refrain from suspending Mr. Budziak’s driver’s licence. If that matter is to be pursued, separate motion materials should be filed, and a new date independent from this matter should be obtained.

[12] I am also of the view, that despite Ms. Duval not responding to the initial service of the motion to change, the length of time that has elapsed since the matter was served requires that she be served with a copy of this endorsement and any fresh affidavit materials Mr. Budziak wishes to put before the Court in aid of his attempt to lower the amount of arrears owing pursuant to the Order. It would be of assistance to the court if Mr. Budziak recast his motion specifying the particular amount he wishes his arrears to be reduced by and on what is the basis for that reduction for the particular years at issue.

[13] During the course of submissions, I indicated to counsel that I was going to make any request for remaining relief returnable on the regular Fort Frances motion list of Thursday March 27, 2025. I have reconsidered this in light of my requirement that Mr. Budziak attempt to personally serve Ms. Duval with this endorsement. The motion shall be returnable on a regular weekly Northwest motion list but not before April 30, 2025.

[14] Accordingly, temporary order to go as follows:

1. The Order of Fregeau J. dated June 9, 2015 is varied such that the obligation of Otto Joseph Budziak to pay ongoing periodic spousal support and provide annual financial disclosure to Audrey Duval is terminated effective March 1, 2025;
2. The request for relief in respect of arrears of spousal support is adjourned to a regular Northwest Superior Court weekly motion list for any date after April 30, 2025;
3. A copy of this endorsement and any fresh materials which Mr. Budziak seeks to put before the Court on the return date of this uncontested trial shall be served on Audrey Duval by special service, such service to be effected not less than thirty days before the next return date of the uncontested trial;
4. The requirement for Audrey Duval to approve the form and content of this order is hereby dispensed with;
5. No costs for today’s attendance.

“original signed by” F.B. Fitzpatrick

Date: March 5, 2025