Court File and Parties

Court File No.: FS-22-00000060 (Goderich)
Ontario Superior Court of Justice

Between:
Brian Joseph Serapiglia (Applicant)
and
Nicola Jane Serapiglia (Respondent)

Applicant Counsel: Paul Nesseth
Respondent Counsel: Sara Wisking
For the Family Responsibility Office (FRO): A. Ahmad

Heard: January 8, 2025
Released: January 17, 2025
Judge: Jasminka Kalajdzic

Ruling on Motion

Introduction

[1] This is a motion brought by the Applicant, Brian Joseph Serapiglia, for an order staying the enforcement of a support order by the Family Responsibility Office (FRO) and suspending his obligation to pay spousal support effective December 31, 2021.

[2] For the reasons that follow, I find that there has been a material change in circumstances justifying a stay and suspension of spousal support effective December 31, 2023. The balance of the Applicant’s motion is dismissed.

Procedural Background

[3] The parties married in 2004 and separated in 2017. They are the parents of a son, aged 15, and twins, aged 12. The children reside primarily with the Respondent mother.

[4] In 2017, with the assistance of counsel, the parties signed a Separation Agreement. The Separation Agreement was incorporated into a court order in the Ontario Court of Justice (OCJ) in April 2023.

[5] The Applicant commenced this Application on August 31, 2021, for a divorce and final orders related to child support, spousal support, parenting time and decision-making. Since then, the parties have participated in at least four settlement conferences, several case conferences, a pre-trial management conference and a number of motions for interim relief. The parties are scheduled to attend assignment court on January 24, 2025, to set the matter down for trial.

[6] In June 2024, the Applicant received notice of support arrears from the FRO totalling $27,651. It was this notice that prompted the motion before the court.

Spousal Support – Background

[7] Pursuant to s. 6.1 of the Separation Agreement, the Applicant is to pay spousal support of $590 per month. This amount was slightly more than the mid-range level of support at the time of execution ($517 was the mid-range amount, and $809 the high according to the calculations attached at Schedule A to the agreement).

[8] Although the Separation Agreement states that the amount of support “will be reviewed in two years’ time”, it also states that if there is to be a change in support, it must be done in writing and is subject to the dispute resolution provision of the agreement.

[9] There has been no variation of spousal support by court order or written agreement of the parties.

[10] In February 2022, the Applicant ceased paying spousal support. According to him, his former lawyer told him he no longer had to pay spousal support based on the Respondent’s increased income.

[11] In her Answer dated April 11, 2022, the Respondent claimed compensatory and non-compensatory spousal support and noted that the Applicant was in default, having unilaterally stopped paying spousal support two months earlier.

[12] In July 2022, the parties negotiated an interim consent order for the appointment of the OCL, child support and parenting time. The Applicant argues that since no provision was made for spousal support, spousal support was not in dispute.

[13] In the fall of 2022, the parties settled the amount of child support arrears owed by the Applicant. Correspondence from September 2022 attached to the Respondent’s affidavit sworn in support of this motion refers only to child support, not spousal support.

[14] In September 2024, the Applicant brought this motion to vary his support obligations. He seeks to suspend spousal support effective December 31, 2021, stay enforcement by the FRO, declare that there are no arrears of child or spousal support and fix the amount of child support commencing July 1, 2024.

[15] On October 3, 2024, at the first return of the motion, Gorman J. ordered child support commencing July 1, 2024, in the amount of $2,392 per month and adjourned the balance of the motion to January 8, 2025.

[16] The parties disagree as to the amount, if any, of s. 3 child support arrears, although it is a modest amount at best. More significant is the amount of arrears for s. 7 expenses. The Respondent’s evidence is that those exceed $40,000. The Applicant contests this amount and argues that a trial judge will need to determine the Applicant’s s. 7 support obligations.

Law and Analysis

A. Jurisdiction

[17] This motion raises a jurisdictional issue not addressed by either counsel. Does this court have the jurisdiction to grant the relief sought by the Applicant or must any variation of the existing spousal support order proceed as a motion to change in the OCJ?

[18] In 2023, the Respondent filed the Separation Agreement with the OCJ pursuant to s. 35 of the Family Law Act, RSO 1990, c F.3 (FLA). The agreement is thus enforceable as an order of that court. The case law is clear that the Superior Court of Justice has no jurisdiction to vary an order of the OCJ: Jasen v. Karassik, 2009 ONCA 245, Francisco v. Francisco, Stamegna v. Ouellet, 2017 ONCJ 323, Ridley v. DeRose, 2015 ONSC 5635.

[19] The Applicant initiated the Application in this court in 2021, some two years before the issuance of the OCJ order. In the Application, he seeks orders of child and spousal support as corollary relief in addition to divorce. Once the Superior Court makes an order with respect to corollary issues in its judgment of divorce, that order would have the effect of superseding any comparable order made in the provincial court (Pantry v. Pantry, para 7).

[20] In Houle v. Trottier, 2012 ONSC 6661, the Divisional Court overturned the motion judge’s decision that the Superior Court lacked jurisdiction to hear corollary relief under the Divorce Act where a Separation Agreement had been filed with the OCJ under s. 35 of the FLA. The Divisional Court did so because the application was a separate application and not one to vary the other court’s order. The Court held at paragraphs 10 to 13:

[10] The appellant in this case does have the option of proceeding in the provincial court, seeking a variation in that court's child support order under s. 37 of the Family Law Act. However, she is not restricted to that one option. She has the alternative option of initiating a corollary relief proceeding under s. 15.1 of the Divorce Act. That request for relief can only be advanced in the Superior Court of Justice.

[11] The Hearing Judge correctly concluded on the authorities she cites at paragraphs 14 through 18 of her Reasons that the Superior Court of Justice has no jurisdiction to vary an order made in the OCJ under the Family Law Act. A request to change the order already granted in the OCJ can only be advanced in that court …

[12] In a similar vein, it is irrelevant that the Superior Court of Justice has no jurisdiction to vary the terms of the Separation Agreement filed with the OCJ under s. 35 of the Family Law Act. The appellant in this case is not seeking a variation of the Separation Agreement or a variation of the order for child support under the Family Law Act. She is asserting a claim for corollary relief under the Divorce Act.

[13] An order under the Divorce Act does not vary the order under the provincial legislation. Rather it supplants and supersedes the order under the provincial statute.

[21] The facts of the case at bar are analogous to those in Houle. The Applicant has brought a fresh application in the Superior Court for corollary relief and within that court file, has moved for a stay of FRO enforcement proceedings. My order will not vary the OCJ order that incorporates the Separation Agreement but will supersede it on an interim basis.

B. Test on this Motion

[22] Having found jurisdiction to grant the relief sought, I must then determine the test to be applied. Although the legislative basis for the motion was not set out in the notice of motion, counsel for the Applicant cited s. 17 of the Divorce Act in his submissions. It is at least arguable that the Applicant could have proceeded under s. 15.2(2) for an interim order pending determination of the Application. Given the manner in which he has chosen to proceed, I need not address the different language used in ss. 15.2 and 17 and its effect on how a court approaches initial and variation applications.

[23] The parties characterized the nature of this motion differently. The Applicant submits that he is not seeking a variation but an interim order staying FRO enforcement proceedings and reducing his obligation to pay spousal support pending resolution of his support obligations at trial. The Respondent submits that the Applicant has effectively brought a motion to change.

[24] Although I have found that the court does not have the jurisdiction to vary the OCJ order incorporating the Separation Agreement, the terms of the agreement remain relevant: Buffett v. Lacuesta, 2023 ONSC 5528, paras 23-24. A motion for interim relief under the Divorce Act does not mean that prior Provincial court orders, be they on consent or adjudicated, are disregarded. Where there is an antecedent order, the Applicant must establish a material change, whether the issue arises in a variation proceeding or by way of a motion for interim relief under s. 17 of the Divorce Act: L.M.P. v. L.S., 2011 SCC 64, para 27.

[25] Moreover, as both counsel confirmed, the test for a stay is the same as the test on a motion to vary. Prior to 2010, courts applied different legal tests, one for the stay of enforcement and the other for interim variation of a support order. In Hayes v. Hayes, 2010 ONSC 3650, however, Spies J. held that it is preferable to have one test for both types of relief, since the result from each motion is the same in effect. She adopted the test set out in Garneau v. Ontario (Director, Family Responsibility Office), 2010 ONSC 2804: the moving party must establish (1) a prima facie case that there has been a material change; (2) hardship; and (3) that they come to the court with clean hands.

[26] The approach in Hayes has subsequently been followed in a number of decisions, with one important clarification: because the moving party must establish a “clear case” for relief, under step one of the test the prima facie case of a material change must be a strong one. In addition, courts have added the requirement of urgency.

[27] Thus, the test for an interim variation of a final support order, and by extension a stay of the previous one, requires the moving party to prove: (1) a strong prima facie case; (2) a clear case of hardship; (3) urgency; and (4) that the moving party comes to court with clean hands. See Berta v. Berta, 2019 ONSC 505, para 40; Raaflaub v. Gonosch, 2020 ONSC 1578, para 7; Brown v. Brown, 2020 ONSC 7085, para 28.

[28] While I am not, strictly speaking, varying the support order issued by the OCJ, I will refer to the Applicant’s motion as a motion to change, because the tests for a stay of enforcement and for a variation of an order are the same.

Strong Prima Facie Case of Material Change

[29] The case law is clear that there must be a material change in circumstances before a variation of the original order will be made. On this motion, the court is not to go back to square one and decide what an appropriate award would be but rather, must consider the effect of the material change in circumstances in deciding whether variation is appropriate: Sterenberg v. Van Ryswyk, 2017 ONSC 5551. In other words, the Respondent’s motion is not an appeal of the 2023 OCJ order or the 2017 Separation Agreement in disguise.

[30] The Applicant’s main argument is that the Respondent’s income has increased considerably since 2017, and that as of early 2022, she was no longer entitled to support. The change in her income, therefore, appears to be the material change in circumstances on which the Applicant relies.

[31] The parties’ respective incomes appear to be as follows:

Year	Applicant	Respondent
2020	$127,482	$22,466
2021	$117,079	$22,038
2022	$121,335	$35,731
2023	$124,286	$34,702
2024	$126,256	$35,450

[32] Both counsel prepared DivorceMate calculations showing what they believe to be the ‘correct’ spousal and child support amounts. They differ in their calculations based on what numbers they use for income and whether union dues and registered pension plan payments are deducted. The parties also differ in terms of which years are relevant for review.

[33] Ms. Wisking has provided calculations going back to 2018 to demonstrate that in fact, the Applicant underpaid child support in some years and that his spousal support was on the low end. Mr. Nesseth argues that any calculations prior to 2022 are irrelevant on the basis of D.B.S. v. S.R.G., 2006 SCC 37, which held that the date for retroactive support is generally no more than three years prior to the date of formal notice.

[34] While it is true that retroactive support is presumptively limited to three years, the court can order support further back if the payor has engaged in blameworthy conduct. See D.B.S. at para 125; Gil-Eldh v. Branyik, 2018 BCCA 98, para 24.

[35] Neither counsel fully canvassed these arguments. It was only after the conclusion of the hearing of the motion that case citations were emailed to the judicial secretary. In my view, the issue of how far back the court should go in making or varying a support order does not need to be determined on this motion, though it may be a live issue for the trial judge.

[36] The question before me is whether a material change in circumstance occurred in 2022 such that the Respondent has a strong prima facie case for variation. He paid spousal support of $590/month until February 2022, in accordance with the provisions of the Separation Agreement, an amount neither party had sought to vary to that point.

[37] As mentioned, the Applicant states that he stopped paying support at that time on the advice of his former counsel, who allegedly told him that his obligation had ceased under the agreement due to the increase in the Respondent’s income. The absence of evidence of written demands for spousal support (other than the Answer filed in April 2022) tends to support the Applicant’s understanding that spousal support was not in issue. On the other hand, the absence of a written agreement ending spousal support suggests otherwise. Why the Applicant stopped paying spousal support is relevant to the ‘clean hands’ branch of the test but is not important at the stage of determining if a material change took place.

[38] According to the Applicant’s DivorceMate calculations, no spousal support was owed to the Respondent in 2022, 2023 or 2024. Because the Respondent uses slightly different income amounts, she calculates no spousal support owed in the low or mid range. At the high range, she estimates support of $580 in 2022, $509 in 2023 and $76 in 2024.

[39] Even on the Respondent’s own calculations, therefore, a strong prima facie case for variation is made out. The Respondent only has a claim for spousal support in 2022 and 2023 if the very highest amount of support is accepted, and the amount is still less than the $590 per month sought to be enforced by FRO. In 2024 the Respondent’s best case for spousal support is $76 per month.

[40] The Applicant has made out a strong prima facie case on the merits of the variation application.

Hardship and Urgency

[41] It is not enough that the Applicant meets the first part of the test. He must also establish hardship and urgency.

[42] FRO did not begin enforcing the spousal and child support order until April 2024. The Applicant initially resisted paying through FRO, preferring instead to pay the Respondent directly. This dispute is now resolved, and he has been paying support to the FRO since November 2024.

[43] In June 2024, the Applicant received a statement of arrears from FRO in the amount of approximately $27,000. There was some communication between the parties and then he brought this motion in early October. He has acted promptly, consistent with the urgency he ascribes to the motion.

[44] The Applicant’s main submission on hardship is that there is a risk of losing his driver’s license in the FRO enforcement proceedings. FRO counsel stated that no steps were being taken to that end at this time, and the Applicant would, in any event, be able to seek a refraining order if FRO sought to remove his license. I accept that a loss of his license would jeopardize his ability to work and thus affect his ability to honour his child support obligations, but there is no immediate risk of such loss and thus no imminent hardship.

[45] The parties are attending assignment court on January 24, 2025, but given the current backlog, they are unlikely to get to trial this calendar year. If the spousal support payments keep accruing in that time period, the Applicant’s indebtedness increases to a point where a substantial portion of his net income will be deducted. His net monthly income is $4,755 and his ongoing child support obligation is $2,392 per month. On the basis of the uncertain timing of final adjudication of this matter, and the quantum of support arrears being enforced by FRO, I find that hardship exists.

Clean Hands

[46] The Respondent submits that the Applicant does not come to court with clean hands because of child support arrears and because he unilaterally stopped paying spousal support in February 2022.

[47] The Applicant’s evidence is that he is up to date on child support (as of December 2024) but he agrees that s. 7 expenses are still in dispute. There are three entries of outstanding child support in the FRO statement (April, May and June 2024). Exhibit E to the Applicant’s affidavit sworn July 3, 2024, however, includes confirmations of etransfers to the Respondent in those amounts. There is a dispute between the parties about $2,293 allegedly owed pursuant to an agreement reached in 2022. I do not have sufficient evidence to decide if any amounts are owing on this account, but it is at least arguable that the sum has been paid.

[48] The Applicant’s unilateral cessation of spousal support is more troubling. He ought to have obtained a court order or an amending agreement in 2022 to vary his support as contemplated under the Separation Agreement. There are two factors mitigating this bad behaviour. The first is the Applicant’s argument that the parties were engaged in extensive negotiations in the summer of 2022 about parenting and child support, and nothing was raised then about spousal support. While it is inappropriate for me to consider privileged settlement negotiations, I do see that no provision for spousal support was made in the order of Moore J. dated July 12, 2022, and no correspondence confirming that spousal support remained a live issue was in either party’s motion record.

[49] Second, the Respondent delayed enforcing spousal support for over two years. While this delay does not disentitle her to the support, it does tend to confirm the Applicant’s view that spousal support was no longer to be paid due to the Respondent’s increased income.

[50] For these reasons, I do not accept that the Applicant comes to court with unclean hands.

[51] I find, therefore, that the Applicant has met the test for variation.

Orders

[52] I must now determine the appropriate relief having regard to the somewhat limited and conflicting evidence before me and with a view to balancing fairness to both parties.

[53] I will not grant the Applicant’s request for his spousal support obligations to be stayed and suspended effective February 1, 2022. I will, however, exercise my discretion to order the stay and suspension of the Applicant’s spousal support obligations from January 2024 onward.

[54] I have reached this determination on the basis that the evidence supports the Applicant’s submission that the Respondent’s means to support herself have materially changed. At least as of 2024, on the Respondent’s own DivorceMate calculation, only $76 per month is owed at the very highest range of support. The evidence for prior years is less clear, although it may well be that less than $590 a month is owed for the years 2022 and 2023. However, I must also balance these facts with the outstanding s. 7 expenses. Although the Applicant disputes that $40,000 is owed, he concedes that some is owed. A trial judge will be in a better position to determine precise figures, and if there has been an overpayment of spousal support up to 2023, these sums can be credited to his s. 7 arrears.

[55] On an interim without prejudice basis, under the Divorce Act, an order shall issue as follows:

a. The Applicant’s obligation to pay prospective spousal support to the Respondent as set out in the parties’ Separation Agreement dated October 22, 2017, is stayed and suspended effective December 31, 2023;

b. Enforcement of arrears of spousal support by FRO will be restricted to $350 per month, with characterization of those amounts left to the trial judge.

c. The balance of the Applicant’s motion is dismissed.

[56] As success is divided on the motion, I am inclined to order that the parties bear their own costs. I strongly encourage them to settle on costs on that basis. If they are unable to resolve costs, any party who is seeking costs may deliver brief written submissions, no more than two pages double-spaced, excluding offers to settle and bill of costs, by January 24, 2025. Responding submissions of the same length may be delivered by January 31, 2025.

Jasminka Kalajdzic

Released: January 17, 2025