Ontario (Family Responsibility Office) v. Buffan, 2012 ONCJ 768

No. D30664/03 DATE: 2012-12-13 Citation: Ontario (Family Responsibility Office) v. Buffan , 2012 ONCJ 768 Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1 BETWEEN: The Director, Family Responsibility Office, for the benefit of Rhonda Gardiner (support recipient) Applicant - and - Ivan Harvey Buffan Respondent Before Justice Robert J. Spence Heard on 28 November 2012 Reasons for Judgment released on 13 December 2012 Ms. Staphania Campola, solicitor for the applicant Ms. Tanya N.

Road, solicitor for the respondent Nature of the Proceeding [ 1 ] The Director of the Family Responsibility Office (“FRO”) has brought a motion seeking a warrant of committal for the purpose of incarcerating Ivan Buffan for a period of 180 days. Mr. Buffan appears with counsel and opposes the motion. More specifically, Mr. Buffan’s counsel seeks an order setting aside the default order and, further, setting aside the dismissal of his prior change motion [1] to permit him to bring another motion to change. [ 2 ] I note at the outset that no such motion was brought by Mr. Buffan’s counsel prior to today.

However, in the interest of fairness, particularly as Mr. Buffan is facing the possibility of imprisonment, I will treat this matter as though counsel had properly brought this motion on behalf of her client, with notice to FRO. [2] In deciding to proceed this way, I am cognizant of Rule 2 and the court’s obligation to deal with cases “justly”. History of Court Proceedings [ 3 ] The court history is lengthy. Given the requests made at this hearing by FRO, and particularly by Mr.

Buffan, to effectively re- set the clock on the support issues, I feel it is necessary for me to detail this history and, most notably the history of the default proceedings before Justice Sherr.

[ 4 ] The support issue was first dealt with by Madam Justice Geraldine Waldman in 2003. Beginning in 2003, and continuing into 2004, Justice Waldman made a series of support orders against Mr. Buffan, based on imputed income to Mr. Buffan in the amount of $118,800. [3] This imputation resulted from Mr. Buffan’s partial financial disclosure combined with his ongoing refusal to make complete disclosure. At the various appearances before Justice Waldman, because of Mr. Buffan’s continued failure to follow court orders, she also made a number of costs orders against him. By May 2005, those costs orders against Mr.

Buffan had reached $5,000. On the last appearance before Justice Waldman in May 2005, she gave Mr. Buffan 14 more days to complete his disclosure. [ 5 ] When the matter came before me in June 2005, I found that Mr. Buffan had continued to be in non-compliance, more specifically, that he had failed to make the ordered disclosure. I struck his pleadings and noted him in default. Trial dates for May 2006 were scheduled before Justice Stanley B. Sherr on the issues of access, a restraining order and support. [ 6 ] Mr.

Buffan did not appeal the orders of Justice Waldman, or my order striking his pleadings. [ 7 ] Prior to the start of that trial, Mr. Buffan’s then-counsel made submissions in support of Mr. Buffan’s request to participate in the trial. Justice Sherr, concluded [4] that Mr.

Buffan ought not to be permitted to participate in the trial. [ 8 ] Justice Sherr made an order for supervised access [5] and dismissed the mother’s request for a restraining order, finding insufficient evidence to support such a claim. [ 9 ] It appears from Justice Sherr’s written Reasons that the majority of trial time was spent on determining Mr. Buffan’s income and quantifying the amount of spousal and child support. Justice Sherr heard evidence regarding Mr. Buffan’s business activities – including his tow truck business as well as his business selling vehicles as a “curbsider”.

He also had evidence regarding Mr. Buffan’s ownership of land, vehicles and the parties’ lifestyle prior to separation. [ 10 ] In his detailed and comprehensive analysis of the evidence, Justice Sherr concluded that Mr. Buffan’s annual income was $60,000, almost all of which was received by him “under the table”. And, as he was receiving this income essentially in cash, and paying no income taxes on the income. Justice Sherr grossed up that income to $86,000. [6] [ 11 ] Justice Sherr made a final order requiring Mr.

Buffan to pay child support in the amount of $1,094 per month, commencing June 1, 2003 [7] and continuing to April 30, 2006, and $1,232 per month commencing May 1, 2006, forward. [8] Justice Sherr fixed Mr. Buffan’s arrears of support in the amount of $29,022, as at May 31, 2006. [ 12 ] For reasons set out in his Judgment, Justice Sherr also ordered Mr.

Buffan to make a one-time lump sum spousal support payment in the amount of $25,860. [ 13 ] On the issue of costs, Justice Sherr declined to go behind the costs orders previously made by Justice Waldman, concluding that it had been appropriate for her to decide costs at each step of the proceedings, pursuant to subrule 24(10) of the Family Law Rules. Following his analysis of how the costs ought to be assessed for the trial just concluded, Justice Sherr ordered Mr. Buffan to pay $10,000 in costs, inclusive of fees, disbursements and GST [9] , payable forthwith. He also ordered Mr.

Buffan to pay Justice Waldman’s outstanding costs orders in the amount of $5,000, for a total of $15,000 in accumulated costs. [ 14 ] Mr. Buffan did not appeal the order of Justice Sherr. [ 15 ] Support arrears continued to accumulate following Justice Sherr’s decision, so that by early 2009, the arrears were in excess of $60,000. [10] [ 16 ] In November 2008 Mr. Buffan commenced a change motion, seeking to vary his support obligation. Specifically, he claimed that he should not have been ordered to pay spousal support as the support recipient had “never been my common law spouse or wife”.

With respect to the child support he had been ordered to pay, he claimed to have been on social assistance in 2005 and 2006 and the ordered support “did not reflect my actual financial status”.

[ 17 ] The change motion was argued before Justice Sherr on June 23, 2009. On June 26, 2009, he released his detailed reasons for judgment, where he ordered: 1 . The change motion is dismissed. 2 . Mr. Buffan is prohibited from bringing any future proceedings in this court, without prior leave, on notice to [the support recipient], unless he has first provided proof that he has paid the outstanding costs orders plus any amount ordered by the court arising from the change motion, and 3 .

The parties are at liberty to make submissions regarding costs on the change motion. [ 18 ] The parties subsequently made written submissions on costs, following which Justice Sherr released another written decision on August 5, 2009, ordering costs on the change motion fixed at $10,000, payable to the Ontario Legal Aid Plan [11] , within 30 days. [ 19 ] Accumulated costs orders against Mr. Buffan had by then reached $25,000, none of which had been paid. [ 20 ] Mr.

Buffan did not appeal the dismissal of the motion to change [12] , or the costs order. [ 21 ] On September 30, 2009, FRO issued a Notice of Default Hearing. As at the date of that Notice, the arrears of support had accumulated to approximately $67,000. On November 26, 2009, FRO served Mr. Buffan with the Notice, and requisite supporting documents. On December 4, 2009, Mr. Buffan filed his Form 30B Default Dispute. [13] In that dispute he stated that he did not owe the amount of money claimed, because: I have grossly imputed income.

When I was living and surviving on social services for 2005, 2006, 2007 and 2008 I didn’t earn anywhere near this grossly imputed income. [ 22 ] He claimed to be working only part-time, not to have enough hours at his job and, additionally, to have medical problems which were impacting his ability to earn an income. [ 23 ] Together with his Dispute, Mr. Buffan also filed a sworn financial statement, asserting that his total income was $926.38 per month.

According to that financial statement, his expenses totalled $900 per month; he had no assets and no debts, apart from an overdraft at the Royal Bank in the amount of $432.21. [ 24 ] In support of his claim that he had a number of medical problems Mr. Buffan did file a few letters/notes from his doctor, the essence of which was that Mr. Buffan suffered from hematuria [14] , headaches, chronic anxiety and insomnia. [ 25 ] There were a number of subsequent scheduled court appearances, all of which were adjourned, until the appearance before Justice Sherr on June 14, 2010. At that time, Mr.

Buffan advised Justice Sherr that he had an appeal pending in the Superior Court of Justice [15] , as a result of which Justice Sherr agreed to adjourn the Default Hearing to November 15, 2010. [ 26 ] On November 15, 2010, the parties again appeared before Justice Sherr, who endorsed the Record as follows: Mr. Buffan produces a letter proving to my satisfaction that SCJ appeal was started, but not perfected. In light of significant payment recently received by FRO and Rule 2 – to deal with cases justly – Mr. Buffin will be given one last opportunity to perfect the appeal and coordinate the appeal date.

Proof shall be provided at the next court date. [ 27 ] Justice Sherr then adjourned to March 9, 2011. Again, the parties appeared, the Default Hearing did not proceed, and Justice Sherr endorsed the Record as follows: Hearing date in Superior Court is set for December 12, 2011. Not perfected yet. Payor says he ordered and paid for the transcripts, but that they are at home of deceased father and his sister has blocked access to the home and the transcripts (may be in sister’s possession). The matter will be adjourned for the sole purpose of [Mr. Bufffan] proving that he paid for the transcripts.

There is no issue that he ordered them. Court staff is asked to also check the records and report if payor paid for the transcripts. If the transcript fees were not paid, this matter will proceed on the next court date.

[ 28 ] Justice Sherr adjourned to March 23, 2011. By then the truth had emerged, namely, that contrary to Mr. Buffan’s assertion to the court that he had paid for the transcripts, in fact he had never done so. In fact, Mr. Buffan never did perfect his appeal and that appeal did not go forward. [16] Accordingly, the Default Hearing proceeded on that day. [ 29 ] Mr. Buffan gave oral testimony at the hearing and he also filed his sworn financial statement, as well as his 2009 Notice of Assessment, an undated letter from his employer Jones Auto Wreckers (“Auto Wreckers”), and a letter from Dr.

Rowan dated March 11, 2011. On the same day, following the Default Hearing, Justice Sherr released his oral Reasons for Judgment. [17] [ 30 ] In rejecting Mr. Buffan’s claim that he did not have the ability to pay and that his circumstances had changed materially, Justice Sherr had this to say, in part [my emphasis]: [Despite his employer’s letter that he had been earning $37,570 annually since 2007, Mr. Buffan’s] 2009 Notice of Assessment shows total income of $4,647, certainly incongruent with the letter from the employer. [And despite Mr.

Buffan’s assertion that he had paid for the transcripts to pursue his appeal in the Superior Court of Justice, and that he had actually obtained those transcripts, this was] borne out to be false with the court staff indicating that he had in fact not paid for the transcripts at all. [And as for the medical evidence, not from a psychiatrist] it is not really evidence of an actual impairment or an inability to earn income. [ 31 ] Justice Sherr fixed the arrears at $72,844.08 as at March 14, 2011. Justice Sherr concluded that he would have been inclined to jail Mr.

Buffan on the spot given his history of “playing games” with the support recipient, his steadfast refusal to pay the support which had been previously ordered, his persistent unfounded requests for adjournments, his continued refusal to provide full and meaningful disclosure, and his lack of fidelity to the truth, Justice Sherr calling it “a continuation of the same old, same old.” [ 32 ] However, because FRO was not seeking immediate incarceration, Justice Sherr relented, even as he doubted that it was appropriate to do so, stating: “I am not sure that this is a just result for the recipient.” Instead, he ordered Mr.

Buffan to pay $2,500 per month, comprised of $1,232 per month for ongoing support, and the balance toward arrears. In default of each $2500 monthly payment, Justice Sherr ordered that Mr. Buffan serve 20 days in jail, or until the default is remedied, with the total time in jail not to exceed 180 days. Subsequent Events leading to this Motion for Warrant of Committal [ 33 ] Subsequent to Justice Sherr’s last order, Mr. Buffan continued to default on his monthly support obligation. Between April 1, 2011 and April 1, 2012, thirteen payments came due, each in the amount of $2,500, for a total of $32,500.

Of that total, Mr. Buffan paid $6,369.79, leaving an unpaid amount on the default of $26,130.21. Accordingly, FRO sought a warrant of committal for 180 days. [18] [ 34 ] The first return of the motion was July 4, 2012. However, on that date FRO counsel advised that it was consenting to an adjournment for Mr. Buffan to provide disclosure. The matter was adjourned to September 20, 2012 before Justice Sherr. [ 35 ] On September 20, 2012, the parties appeared before Justice Sherr who concluded that given his past “expressed very strong opinions . . . about Mr.

Buffan’s credibility”, the matter should be placed before a different judge. The motion was then adjourned to me, for October 15, 2012. [ 36 ] On that date, it was apparent that Mr. Buffan’s counsel would benefit from a further adjournment to better organize documents on behalf of her client. I ordered counsel to prepare a tabbed and indexed brief of documents she intended to rely on at the hearing of the motion, together with a brief of authorities, if any. I then set aside one-half day for argument of the motion on November 28, 2012.

Facts not in Dispute at the Hearing of the Motion [ 37 ] The following facts are not in dispute: 1. Mr. Buffan was personally served with the Motion for warrant of committal. 2. Service included a copy of Justice Sherr’s default/committal order dated March 23, 2011 which set out the terms of the default and committal (as described above in these reasons).

3. Mr. Buffan attended court for the default hearing and was present when Justice Sherr made the default order. 4. Service also included an affidavit supporting the request for the warrant of committal, setting forth a description of the defaultedpayments, and the term of imprisonment sought by FRO (as described above in these reasons). 5. Mr.

Buffan subsequently filed his own affidavit in response, in which he did not dispute the calculation of the amount owing inrespect of the defaulted payments or the term of imprisonment that would flow from those defaults, pursuant to Justice Sherr’s orderdated March 23, 2011, and 6. The total arrears of support owing by Mr. Buffan, according to FRO’s statement of arrears filed at the hearing of this motion is$116,315.25. The Legislation [38] Subrule 30(9) of the Family Law Rules (“Rules”) provides [my emphasis]: ISSUING WARRANT OF COMMITTAL

(9) If the recipient, on a motion with special service (subrule 6 (3)) on the payor, states by affidavit (or by oral evidence, with the court'spermission) that the payor has not obeyed a condition that was imposed under subrule (8), the court may issue a warrant of committalagainst the payor, subject to subsection 41 (15) (power to change order) of the Family Responsibility and Support Arrears EnforcementAct, 1996. O. Reg. 114/99, r. 30 (9); O. Reg. 76/06, s. 8 (2). [39] Subrule (8) provides: CONDITIONAL IMPRISONMENT

(8) The court may make an order under clause 41 (10) (

h) or (

i) of the Family Responsibility and Support Arrears Enforcement Act,1996, suspending the payor's imprisonment on appropriate conditions. O. Reg. 114/99, r. 30 (8); O. Reg. 76/06, s. 8 (1). [40] Clauses 41(10)(

h) and (

i) of the Family Responsibility and Support Arrears Enforcement Act 1996 (“Act”), provides: Powers of court

(10) The court may, unless it is satisfied that the payor is unable for valid reasons to pay the arrears or to make subsequent paymentsunder the order, order that the payor, . . . . (

h) be imprisoned continuously or intermittently until the period specified in the order, which shall not be more than 180 days, hasexpired, or until the arrears are paid, whichever is sooner; and (

i) on default in any payment ordered under this subsection, be imprisoned continuously or intermittently until the period specified in theorder, which shall not be more than 180 days, has expired, or until the payment is made, whichever is sooner. 2005, c. 16, s. 24. [41] The effect of the foregoing legislation is to confer on the court hearing the request to issue a warrant of committal, a discretion todo so, where the payor has previously been ordered to make certain support payments, in default of which to be imprisoned.

Thequestion then for this court is whether, in all the circumstances, I should exercise my discretion in favour of issuing the warrant ofcommittal. The Case Law [42] The starting point for this review is Ontario (Director, Support and Custody Enforcement) v. Levenson (ONCJ), [1990] O.J. No. 2410 (Ontario Court of Justice – Provincial Division), which is a decision of Provincial Division Judge JosephJames.

It should be noted that although this decision pre-dates the Rules, it nevertheless considered whether, and in what circumstancesa warrant of committal should be issued following a debtor’s default. [43] Justice James set out the procedures that should be followed on a motion for warrant of committal, including the requirement forproper service of documents on the debtor, setting out the nature of the default and the amount owing and, essentially, compliance withall of the six facts not in dispute, outlined above in these reasons. [44] Justice James then stated that the debtor must set out in his affidavit filed in response his reasons for failure to pay, and continued[my emphasis]: The debtor’s reasons for failure to pay must be limited to matters or events arising after the date of the default order or the date of the

hearing of any subsequent motion for committal, whichever date is the most recent. The court may be persuaded to admit reasonably unforeseeable consequences of events or matters predating the default order or the subsequent motion for committal. What ought not to be allowed is an attempt to submit reasons for non-payment that were already submitted or that, with due diligence, could have been submitted before the judge who made the order of committal or who heard any subsequent motion for committal.

The motion for committal is never a default hearing de novo . [ 45 ] This position was essentially approved of, subsequent to the enactment of the Rules, by Justice A.T. McKay in Bradshaw v. Davidson [2010] O.J. No. 435 (O.C.J.) . At paragraph 10 of his decision, Justice McKay stated [my emphasis]: In this committal hearing, the court has a limited scope of issues to review . . . . There is a history of arrears going back to 1992 . . . . Essentially [the debtor] appeared at the committal hearing and argued issues about entitlement to the support in question.

He has not established that there is a material change in circumstances since he consented to the default order. [ 46 ] What these cases reveal is that evidence from the payor that pre-dates the default hearing, unless it was “reasonably unforeseeable”, is not admissible at a motion for a warrant of committal. Only evidence arising after the default hearing, which establishes a material change in circumstances going to the debtor’s ability to pay, will be considered by the court. [ 47 ] With that in mind, I turn to Mr.

Buffan’s evidence which purports to explain his reasons for defaulting on Justice Sherr’s order of March 23, 2011. Analysis of Mr. Buffan’s Reasons for his Defaults [ 48 ] In support of his position at this motion, Mr. Buffan filed the following: 1. His own affidavit 2. His sworn updated financial statement 3. Supporting documents, including income tax return summaries, Notices of Assessment from Canada Revenue Agency, letters and medical documentation 4. An affidavit from his sister, and 5. An affidavit from an individual purporting to employ Mr. Buffan at Auto Wreckers [ 49 ] In his own affidavit, Mr.

Buffan refers to his financial circumstances, as set out in his tax returns and Notices of Assessment, going back to 2000. He tells the court that he has never had the kind of income the court has imputed to him in the past. He gives a recounting of his employment and business history extending back for the past 10 to 12 years, and he asserts that the court is mistakenly holding him “accountable to an income of $118,000”. [19] Essentially, Mr.

Buffan’s defence for non-payment is that the court has continually gotten it wrong. [ 50 ] The only new information in the affidavit, subsequent to the default hearing held on March 23, 2011 is: 1. The amount his rent increase on his apartment, effective April 1, 2012 2. The fact that he has a CT Scan and an MRI scheduled for September 21, 2012 [20] 3. Some updated doctors’ notes setting out the prescriptions Mr. Buffan takes for certain self-reported symptoms, and 4.

The fact that he borrowed $10,000 from his sister to pay legal fees for responding to this motion [ 51 ] The bulk of the sister’s affidavit is a re-telling of the history of the problems between Mr. Buffan and his former wife, as well as corroboration that the sister loaned $10,000 to Mr. Buffan. [ 52 ] The only new information contained in the Auto Wreckers affidavit is that Mr. Buffan has been employed by them since 2007, and that his hourly salary was raised to $17 per hour in May 2012. Further, it states that if Mr. Buffan is jailed on this motion, he will likely lose his job.

[53] As for the medical documentation filed, counsel for Mr. Buffan conceded that the symptoms described by the doctor are self-reported, rather than objectively ascertainable symptoms. In any event, the doctor does not state that Mr. Buffan is medicallyincapacitated from working. Furthermore, the Auto Wreckers affidavit would suggest, contrary to what Mr. Buffan argues, that Mr.Buffan is in fact an active individual who is a “good employee” and “an asset” to the Auto Wreckers.[21] Accordingly, the medicalevidence is of no assistance whatsoever to Mr.

Buffan’s position, and certainly does not provide evidence of a material change incircumstances, going to Mr. Buffan’s ability to be gainfully employed, subsequent to the default hearing before Justice Sherr on March23, 2011. [54] Simply put, Mr. Buffan has placed no evidence before the court that would persuade the court that there has been a materialchange in his circumstances since the making of the default order on March 23, 2011. Authorities submitted by Mr. Buffan [55] Mr. Buffan’s counsel prepared a book of authorities containing five cases.

It is not necessary to discuss any of those cases, saveand except to state the following. None of those cases addressed the issue of whether, and under what circumstances, a court ought toexercise its discretion to grant a warrant of committal. Instead, the cases were about the penalties that ought to be imposed on a findingof contempt or the appropriate number of days of imprisonment to impose at a default hearing upon the finding that a debtor has not paidsupport pursuant to an order of the court. As these are not the issues the court is called upon to address at this motion, none of thosecases are helpful. Mr.

Buffan’s Credibility [56] As I noted earlier, Mr. Buffan continues to assert the same thing he asserted at the support trial in 2006 and, again, at the defaulthearing in 2011, namely, that he does not earn the kind of income imputed to him, and that he cannot afford to pay the ordered support. Notwithstanding that these assertions are not relevant on a motion for a warrant of committal, I feel compelled to comment on hiscredibility. [57] Although the Auto Wreckers affidavit states that he has been a full time employee since 2007[22], Mr. Buffan’s documentsreveal the following: 1.

According to his Notice of Assessment for 2011, he had no T-4 income whatsoever. The only reported income is in the amount of$16,096 from business income. This is obviously incongruent with the Auto Wrecker’s affidavit stating that Mr. Buffan was a full timeemployee during 2011. 2. In his financial statement sworn September 18, 2012, Mr. Buffin discloses employment income of $734.98 per month, approximately$8,819 per year. This is less than one-half minimum wage for the Province of Ontario. Again, this is contradicted by the Auto Wreckersaffidavit. 3. In that same financial statement, Mr.

Buffin discloses total current income – including Child Tax Benefit and support received – inthe amount of $18,301 per year. He says that his expenses are $27,619 per year. His expenses exceed his stated income by more than$9,000 annually. Yet that same financial statement reveals no debt. In other words, according to Mr. Buffin, he has no source of fundsto service his annual deficit, something which is mathematically incomprehensible. 4. Again, notwithstanding that Auto Wreckers purports that Mr.

Buffin was a full time employee during 2010, his Notice of Assessmentfor 2010 discloses T-4 income in the amount of $9,880, again, less than one-half minimum wage. 5. In an earlier proceeding[23] Mr. Buffin produced a letter from Auto Wreckers stating: “Effective March 30, 2011”, his salary hadbeen increased to $17 per hour and that his “annual salary will be $37,570.” This directly contradicts the Auto Wreckers affidavit filed inthis proceeding which states that his wage was increased to $17 per hour in May 2012. [58] The result of all this is that even if Mr.

Buffan had adduced evidence of a possible material change in circumstances sinceJustice Sherr made his default order on March 23, 2011, Mr. Buffin’s lack of familiarity with the truth so seriously undermines hiscredibility that if would be difficult for a court to accept any of Mr. Buffin’s evidence unless it was backed up by unimpeachabledocumentary evidence. The $10,000 Mr. Buffin borrowed from his Sister [59] In Vance v. Vance (1982), (BC SC), 28 R.F.L. (2d) 420 (B.C.S.C.), the wife sought to have her husbandcommitted to prison for contempt in failing to pay maintenance as ordered by the court.

The husband was in arrears of support in theamount of $6,870.02. He sought to have those arrears cancelled. The husband withdrew $10,000 from his business partnership in orderto pay his legal bill. In addressing the appropriateness of the husband’s decision to pay his solicitor rather than paying the court-orderedsupport, Spencer J. stated, at paragraph 10 [my emphasis]:

I cannot think that his solicitor’s powers of compelling payment should be more successful than those of the court. To pay his solicitor in preference to paying a sum ordered by the court as maintenance is, in my judgment, contemptuous. [ 60 ] Clearly, according to Mr. Buffin’s evidence, and the evidence of his sister, he had $10,000 at his disposal . He had an opportunity to pay that entire amount to FRO, to be credited toward his court-ordered support obligation, and yet he chose to prefer his solicitor over that legal obligation. I agree with Spencer J’s conclusion that such a choice is “contemptuous”.

Unpaid Costs Orders [ 61 ] There are now in place a number of outstanding costs orders against Mr. Buffan. These orders began to accumulate in 2005. As I noted earlier, the most recent costs order was made by Justice Sherr in the amount of $10,000 following his dismissal of Mr. Buffan’s change motion in 2009. That costs order brought the total costs owing by Mr. Buffan to $25,000, all of which remains outstanding as of today. [ 62 ] Again, as I noted earlier, when Justice Sherr dismissed Mr. Buffan’s change motion, he specifically ordered that Mr.

Buffan is “prohibited from bringing any future proceedings in this court” without first proving that he has paid all outstanding costs orders . [ 63 ] Given the history of proceedings by the time that matter came before Justice Sherr, I am not inclined to go behind his order regarding the payment of costs. Even assuming that Mr. Buffan had a good case on the merits to re-open the issue of support, in my view, he would have to appear before Justice Sherr to seek a change to that order requiring him to first pay the outstanding costs. However, and in any event, because Mr.

Buffan does not have a good case on the merits, such a consideration is purely academic at this stage. Power to Change the Default Order [ 64 ] As I noted at the outset of these reasons, Mr. Buffan did not bring a motion seeking to set aside the default order. However, I expressed my intention to proceed as though such a motion had been brought. [ 65 ] The power to change a default order is contained in subsection 41 (15) of the Act, which provides [my emphasis]: Power to change order

(15) The court that made an order under subsection (10) [24] or (12) may change the order on motion if there is a material change in the payor’s or other person’s circumstances , as the case may be. 2005, c. 16, s. 24 . [ 66 ] As this subsection makes clear, there must be evidence of a “material change” in Mr. Buffan’s circumstance since the making of the default order, before the court is empowered to change that default order. [ 67 ] The question to be answered, then, is whether Mr. Buffan has demonstrated that there is a material change since Justice Sherr made his default order on March 23, 2011.

As I discussed earlier in these reasons [25] none of the evidence filed by Mr. Buffan, including his affidavit, the affidavit of his sister, the affidavit of Auto Wreckers and the medical documentation, persuade the court that anything has changed since Justice Sherr’s default order, which goes to the issue of Mr. Buffan’s ability to earn an income. In short, Mr. Buffan has not demonstrated that there has been a material change in circumstances such that the court would be able to make an order under subsection 41(15) of the Act. Conclusion [ 68 ] For all of the foregoing reasons, I make the following order: 1.

Mr. Buffan’s request to set aside Justice Sherr’s default order dated March 23, 2011 is dismissed. 2. Mr. Buffan’s request to change that default order is dismissed. 3. Mr. Buffan’s request to set aside Justice Sherr’s order dated June 26, 2009, dismissing the change motion, is dismissed. 4. The default under which the FRO is seeking the warrant of committal is in the amount of $26,130.21. 5. The motion brought by the Director of FRO for a warrant of committal is granted. Mr. Buffan shall be incarcerated for a period of 180 days or until the outstanding default is cured.

Justice Robert J. Spence December 13, 2012