CITATION: Notario v. Notario, 2026 ONSC 2033
COURT FILE NO.: 01-FP-264406 FIS
DATE: 20260407
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ERLINDA N. NOTARIO
Applicant
– and –
JIMMY P. NOTARIO
Respondent
Not present
Elizabeth Rosaldo Quinto, for the Respondent
HEARD: In Writing
REASONS FOR JUDGMENT
M. kraft, J.
[1] This judgment addresses the respondent’s, Jimmy P. Notario (“Mr. Notario”) Motion to Change two previous spousal support orders due to accumulated arrears. Both parties, aged 66, were married on May 8, 1997, and separated on May 4, 2002. They have no children. It proceeded on an uncontested basis.
[2] The parties, both age 66, were married on May 8, 1997, and separated on May 4, 2002. They have no children.
[3] A trial addressing the outstanding issues arising from the parties’ marriage breakdown was held on April 2, 2002, with both parties represented by counsel. On April 3, 2002, Kiteley J. issued a final order (the “2002 Divorce Judgment”) granting the divorce and requiring Mr. Notario, to pay the applicant, Erlinda N. Notario (“Ms. Notario”), spousal support of $1,500 per month,
commencing on the first day of the month before the start of her educational program[^1] and continuing until three months after its completion.[^2] Mr. Notario was also ordered to pay Ms. Notario’s tuition expenses and costs of $12,979.05.
[4] On August 29, 2002, Kiteley J. made a further order (the “August Order”) providing that: (1) the tuition amounts ordered under the 2002 Divorce Judgment were enforceable as support in the total amount of $12,400 ($3,520 for the 2002 program and $8,880 for the 2003 program); (2) the costs award of $12,979.05 was enforceable as support; and (3) the monthly spousal support payments of $1,500 under the 2002 Divorce Judgment were to commence on August 1, 2002.
[5] In his affidavit sworn December 18, 2024, Mr. Notario deposes that Ms. Notario enrolled in two educational programs with total tuition of $13,765, rather than the $12,400 referenced in the August Order. The tuition consisted of: (1) $3,945 for a web design program commenced in September 2002, expected to conclude within 42 weeks, by August 2003; and (2) $9,820 for a web developer program commenced in September 2003 and completed in August 2004. Under the 2002 Divorce Judgment, spousal support was payable until three months after the completion of Ms. Notario’s program, resulting in a final payment date of November 1, 2004.
[6] Although the 2002 Divorce Judgment contemplated that Mr. Notario’s spousal support obligation would terminate three months after Ms. Notario completed her educational program, Mr. Notario did not make any voluntary payments of spousal support to Ms. Notario. Other than sporadic federal garnishments, Mr. Notario did not pay spousal support until 2012 when the Family Responsibility Office (“FRO”) began garnishing his wages. By 2012, over $200,000 in spousal support arrears had accrued under the 2002 Divorce Order and FRO continued to garnish Mr. Notario’s wages until 2025 because no agreement of the parties or court order was made terminating or varying the support obligation. The Director of the FRO has a statutory duty to enforce all support orders filed with the office unless and until the obligation is terminated, varied, or stayed.[^3]
[7] On December 18, 2024, Mr. Notario brought a Motion to Change the 2002 Divorce Judgment, seeking termination of his ongoing spousal support obligation and rescission of the arrears accrued under that order. He asserts that he has significantly overpaid spousal support and lacks the financial capacity to discharge the outstanding arrears. He does not seek repayment of any spousal support from Ms. Notario.
[8] As of May 15, 2025, Mr. Notario’s spousal support arrears totalled $216,299.67, of which $215,499.67 was owed to Ms. Notario and $800.00 to the Director of the FRO for enforcement fees. Mr. Notario calculates that, as of April 20, 2024, he had paid $199,934.05 in spousal support.
[9] Mr. Notario retired in March 2025, at age 65. Since that time, his only sources of income have been Canada Pension Plan (“CPP”) and Old Age Security (“OAS”) benefits, together with occasional income tax refunds.
[10] English is not Mr. Notario’s first language. He deposes that he had limited understanding of the legal system and lacked the financial means to retain counsel. As a result of FRO’s garnishment of approximately $700 from each pay period, he was left with roughly $500 to cover the rent for a single room and his basic living expenses. He does not own a home or a vehicle, has no assets of significant value, and his sworn financial statement reflects a negative net worth. It was only after experiencing serious hardship - rendering him unable to meet basic daily needs, including food, shelter beyond a rented room, and medication - that he retained counsel, became aware of the steps required to address the accumulated spousal support arrears under the 2002 Divorce Judgment, and brought this Motion to Change.
[11] Mr. Notario retired in March 2025, at age 65, and began receiving retirement pension income as of March 11, 2025. His monthly Canada Pension Plan (“CPP”) benefits of $1,010.34 were subject to garnishment, together with his Old Age Security (“OAS”) benefits and income tax refunds, resulting in significant financial hardship.
Issues to be decided
[12] The issues to be determined on this uncontested motion to change are:
a. Is this an appropriate case to rescind the spousal support arrears which have accumulated under the 2002 Divorce Order and August Order?
b. Should Mr. Notario’s spousal support obligation be terminated on a going‑forward basis?
Brief factual and litigation history
[13] Mr. Notario resides in Guelph, Ontario. Until his retirement in March 2025, he was employed by Comtech MFG. His 2024 Notice of Assessment reports Line 15000 income of $41,415. His financial statement, sworn December 18, 2024, reflects a negative net worth.
[14] At the time of the trial in 2002, Mr. Notario’s income information for the years 1997 to 2001 was before the Court. His income, as reported in his Notices of Assessment and Reassessment, was as follows:
Year
Income
1997
$39,230 (Notice of Reassessment)
1998
$67,383 (Notice of Reassessment)
1999
$45,474 (Notice of Reassessment)
2000
$46,766 (Notice of Assessment)
2001
$38,837.62 (T1)
[15] Following the parties’ divorce in 2002, Mr. Notario left Canada and travelled to Italy and then London, United Kingdom, in search of employment. He returned to Canada in May 2003.
[16] In January 2004, Mr. Notario enrolled in a Personal Support Worker (“PSW”) certification program at the Yorkdale Adult Learning Centre to secure employment and meet his spousal support obligations under the 2002 Divorce Judgment. He commenced employment as a PSW in April 2005.
[17] Despite the terms of the 2002 Divorce Judgment and the August 2002 Order, Mr. Notario did not make spousal support payments to Ms. Notario commencing August 1, 2002. A Statement of Arrears from the FRO, sworn May 15, 2025, indicates that no voluntary spousal support payments were made by Mr. Notario between August 2002 and April 2006. From May 2006 to March 2012, the FRO received sporadic payments from Mr. Notario through federal garnishments. From April 2012 to the present, payments were received through a combination of federal garnishments and employment income. By April 12, 2012, spousal support arrears exceeding $200,000 had accumulated. Beginning in April 2025, the FRO also received garnishments from Mr. Notario’s CPP and OAS benefits.
[18] As noted above, Mr. Notario brought this Motion to Change on December 18, 2024.
[19] Mr. Notario has had no contact with Ms. Notario since the 2002 Divorce Judgment, a period of approximately 22 years. He was unable to locate or communicate with her, despite retaining a private investigator. As a result, he brought a Rule 14B motion for substituted service by Facebook Messenger, which was granted by Mathen J. on February 14, 2025.
[20] Mr. Notario effected service in accordance with that order on March 4, 2025. Ms. Notario did not file any response to the motion.
[21] A Dispute Resolution Officer (“DRO”) conference was held on April 8, 2025. The DRO Conference Report notes that Ms. Notario neither attended the conference nor filed any materials, and that Mr. Notario would proceed by way of a Rule 14B motion on an uncontested basis.
[22] In April 2025, Mr. Notario brought a Rule 14B motion seeking leave to proceed with his Motion to Change on an uncontested basis, as Ms. Notario had neither filed a response nor attended the DRO conference. He served Ms. Notario with the Rule 14B motion on April 17, 2025. She did not respond. On June 6, 2025, I granted Mr. Notario leave to proceed with his Motion to Change by way of an uncontested trial in writing. I also ordered him to serve and file a Form 23C containing further and better evidence, including evidence of his financial circumstances at the time the original spousal support order was made in 2002 and his current financial circumstances.
[23] This matter came before me on May 20, 2025, at To Be Spoken To Court. Ms. Notario did not attend. Counsel for the Director of the FRO, Ms. Sadacharam, was present. Mr. Notario sought leave to bring an urgent motion, prior to a case conference, to stay enforcement of the 2002 Divorce Judgment and the August Order. While counsel for the FRO took no position on whether leave should be granted, the FRO opposed the requested stay. I granted leave for Mr. Notario to bring an urgent motion for a stay, returnable on June 5, 2025.
[24] On June 6, 2025, Stevenson J. ordered a stay of enforcement of the 2002 Divorce Judgment and the August Order pending determination of this Motion to Change. Despite the stay order, the FRO continued to garnish Mr. Notario’s retirement income and income tax benefits until July 10, 2025.
[25] Mr. Notario’s CPP and OAS benefits resumed at their full, ungarnished amounts as of July 28, 2025.
[26] In accordance with my endorsement on the Rule 14B motion, Mr. Notario served and filed a supplementary Form 14A affidavit, sworn July 30, 2025, in further support of this uncontested Motion to Change.
Issue One: Is this an appropriate case to rescind the spousal support arrears which have accumulated under the 2002 Divorce Order?
[27] Section 17(1) of the Divorce Act, RSC 1985, c.3 (2nd Supp.), confers jurisdiction on the court, on application by either or both former spouses, to vary, rescind, or suspend a support order or any provision of one, either retroactively or prospectively.
[28] In terms of a variation of spousal support, under section 17(4.1) of the Divorce Act:
(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration
[29] The moving party on a Motion to Change, in this case Mr. Notario, bears the burden of proof: see Ruffolo v. David, 2016 ONSC 754, 75 R.F.L. (7th) 16 (Div. Ct.); Trang v. Trang, 2013 ONSC 1980, 29 R.F.L. (7th) 364, at para 55.
[30] In Colucci v. Colucci, 2021 SCC 24, [2021] 2 S.C.R. 3, the Supreme Court of Canada set out the analytical framework applicable where a payor seeks a retroactive downward adjustment of child support under s. 17(1) of the Divorce Act.
[31] This is not a case, as in Colucci, where a payor seeks a retroactive reduction of a support obligation based on a past decline in income. Rather, Mr. Notario seeks rescission of accumulated arrears based on a current and permanent inability to pay, combined with clear evidence that he has completely satisfied his spousal support obligation under the two existing spousal support orders and, in fact, has significantly overpaid spousal support. He does not challenge the validity or accuracy of the underlying orders.
[32] Courts have generally taken a highly restrictive approach to rescinding or suspending child support arrears based solely on present inability to pay (see, for example, Haisman v. Haisman, 1994 ABCA 249, at paras. 26–27; Gray, at para. 58; C.L.W. v. S.V.W., 2017 ABCA 121, at para. 30; Punzo, at para. 46; Blanchard v. Blanchard, 2019 ABCA 53, at para. 32; S.A.L. v. B.J.L., 2019 ABCA 350, at para. 12; Semancik v. Saunders, 2011 BCCA 264, at para. 25). These authorities confirm that the discretion to grant such relief is narrow
[33] While this is not a child support case, I am satisfied that the same principles apply to applications seeking rescission of spousal support arrears.
[34] A payor seeking rescission of arrears must overcome a strong presumption against such relief. That presumption is rebutted only where the payor establishes, on a balance of probabilities, that, even with a flexible payment plan, they cannot and will never be able to pay the arrears (Earle, at para. 26; Corcios, at para. 55; Gray, at para. 58). Present inability to pay does not, on its own, foreclose the possibility of future ability to pay, though it may justify a temporary suspension (Haisman, at para. 26).
[35] Where a payor’s financial circumstances make repayment difficult, the court should first consider whether hardship can be alleviated through a temporary suspension, structured payments, or other tailored relief (Haisman (Q.B.), at paras. 32–33; Templeton, at para. 47; Brown, at para. 44).
[36] As the Supreme Court of Canada cautioned in Colucci at para. 141, rescission of arrears based solely on current financial incapacity should be ordered only as a last resort, in exceptional circumstances. I find that Mr. Notario has established a prima facie case that he overpaid Ms. Notario spousal support. However, he did not take any steps to notify the FRO that the support obligation ought to have ended, and as a result, significant arrears accumulated.
[37] Based on the record before me, I find that Mr. Notario’s spousal support obligation was meant to terminate 3 months after Ms. Notario’s completed her educational program, which would have made the last payment of spousal support on November 1, 2004.
[38] However, as noted above, the Statement of Arrears from the FRO, dated May 15, 2025, confirms that Mr. Notario did not make any voluntary spousal support payments to Ms. Notario between August 1, 2002, and November 1, 2004.
[39] Mr. Notario calculates his total obligation under the 2002 Divorce Judgment and the August Order to be $53,744, broken down as follows:
a. Spousal support of $1,500 per month for the period May 1, 2002, to November 1, 2004, which he calculates as $27,000;
b. Tuition for Ms. Notario’s educational programs in the total amount of $13,765 ($3,945 for the web design program commenced in 2002 and $9,820 for the web developer program commenced in 2003); and
c. Costs in the amount of $12,979.05.
[40] I do not accept Mr. Notario’s calculation of his spousal support obligation. The period from May 1, 2002, to November 1, 2004, comprises 30 months. At $1,500 per month, the total spousal support payable under the 2002 Divorce Judgment and the August Order is therefore $45,000 ($1,500 × 30), not $27,000. Accordingly, I find that Mr. Notario’s total obligation under the two orders was $71,744.05, comprised of $45,000 in spousal support, tuition of $13,765, and costs of $12,979.05, and not $53,744.
[41] Based on my review of the FRO Statement of Arrears dated May 15, 2025, once Mr. Notario’s employment income began to be garnished on April 24, 2012, it took until approximately mid‑2017 for him to satisfy the quantum of spousal support owing to Ms. Notario under the 2002 Divorce Judgment and the August Order.
[42] Despite this, Mr. Notario did not take any steps at that time to vary or terminate the support orders so that the FRO would cease enforcing them.
[43] I do not find that Mr. Notario’s spousal support obligation ended on November 1, 2004, because he did not voluntarily pay the support required under the orders beginning August 1, 2002. He paid virtually no spousal support until the FRO commenced garnishment in April 2012. However, I do find that he has more than satisfied the total spousal support owing to Ms. Notario under the 2002 Divorce Judgment and the August Order, such that he has significantly overpaid her.
[44] As I have found that Mr. Notario’s total obligation under the 2002 Divorce Judgment and the August Order amounted to $71,744.05, it follows that he significantly overpaid spousal support to Ms. Notario from approximately mid‑2017 until July 2025.
[45] Mr. Notario does not seek repayment of any spousal support paid to Ms. Notario. He seeks only that the arrears which accrued under the support orders be rescinded.
[46] The primary objective of the Family Law Rules is to enable cases to be dealt with justly, including in a manner that is fair, expeditious, cost‑effective, and proportionate. Justice and fairness cannot be achieved without regard to the realities of the parties’ circumstances. On the evidentiary record before me, it is clear that Mr. Notario has overpaid spousal support by a significant margin.
[47] On the record before me, this is an appropriate case to rescind the spousal support since Mr. Notario has satisfied his spousal support under the 2002 Divorce Judgment and the August Order. He did not do so by November 1, 2004, as the orders contemplated, however, he did so by mid-2017. Accordingly, I order that the spousal support arrears be rescinded in their entirety for two reasons. First, the evidence clearly establishes that Mr. Notario has significantly overpaid spousal support relative to what was contemplated under the 2002 Divorce Judgment. Second, given his lack of assets, credit, and income, he will never be able to satisfy the outstanding arrears. Mr. Notario has paid spousal support for more than 13 years following a five‑year marriage, despite an order that contemplated termination of support three months after Ms. Notario completed her educational program. In these circumstances, substantive justice requires that all arrears accumulated under the 2002 Divorce Judgment be expunged.
Issue Two: Should Mr. Notario’s spousal support obligation be terminated going forward?
[48] In light of my findings that Mr. Notario has satisfied his spousal support obligation to Ms. Notario, which was time-limited, and that he has significantly overpaid his spousal support obligation, there is no legal basis for the continued operation or enforcement of the 2002 Divorce Judgment and the August Order.
[49] Accordingly, I order that Mr. Notario’s spousal support obligation to Ms. Notario is terminated effective immediately, and that enforcement of the 2002 Divorce Judgment and the August Order is permanently stayed.
ORDER
[50] This court makes the following order:
a. Mr. Notario’s spousal support obligation under the order of Kiteley J. dated April 3, 2002 (the “2002 Divorce Judgment”), and the order of Kiteley J. dated August 29, 2002 (the “August Order”), is terminated effective today.
b. The Director of the Family Responsibility Office (“FRO”) shall cease enforcement of the 2002 Divorce Judgment and the August Order in all respects, including, without limitation, the garnishment of Mr. Notario’s Canada Pension Plan benefits, Old Age Security benefits, and income tax refunds or credits.
c. Any outstanding balance owed by Mr. Notario to the Family Responsibility Office arising from enforcement of the 2002 Divorce Judgment or the August Order is hereby rescinded, and Mr. Notario is discharged from any further obligation to the FRO in respect of those orders.
M. Kraft, J.
Released: April 7, 2026
CITATION: Notario v. Notario, 2026 ONSC 2033
COURT FILE NO.: 01-FP-264406 FIS
DATE: 20260407
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ERLINDA N. NOTARIO
Applicant
– and –
JIMMY P. NOTARIO
Respondent
REASONS FOR JUDGMENT
M. Kraft, J.
Released: April 07, 2026
[^1]: The Divorce Judgment, dated April 3, 2002, does not specify the educational program but in paragraph 2(b) Ms. Notario was ordered to provide Mr. Notario confirmation in writing that she has registered for the educational program she proposed at Trial and provide details with respect to how many months she will be in the program and her expected date of complete of the program.
[^2]: There was no completion date for Ms. Notario’s educational program identified in the 2002 Divorce Judgment.
[^3]: s.5(1) of the Family Responsibility and Support Arrears Enforcement Act, 1996, SO 1996, c.31 (“FRSAEA”).