Rubatto v. Sandoval, 2018 ONCJ 85

ONTARIO COURT OF JUSTICE CITATION: Rubatto v.

Sandoval , 2018 ONCJ 85 DATE: 2018 02 07 COURT FILE No.: Halton F09/526 BETWEEN: Vanessa Martinez RUBATTO, now known as Vanessa Martinez SCOTT Applicant — AND — Alvaro Ernesto Martinez SANDOVAL Respondent Before Justice Victoria Starr Heard on December 27, 2017 Reasons for Judgment released on February 7, 2018 Sukhman Grewal ...................................................................... counsel for the respondent Vanessa Martinez SCOTT....................................................................... on her own behalf VICTORIA STARR J.: INTRODUCTION [ 1 ] Throughout the history of this family litigation four judges have found some form of blameworthy behavior on the part of Mr.

Martinez. Such findings include that he has been deceitful, misrepresented facts, and/or omitted material facts, all with the intent of misleading the court, the FRO, and/or Ms. Scott. Each (Justices Wolder, O’Connell, and most recently, Justice Kurz, and I), have also found that he has either breached orders and/ or the Family Law Rules, O Reg 114/99. [ 2 ] The final order of Justice S. O’Connell dated May 13, 2011 prohibits Mr. Martinez from bringing any further proceedings, without leave of the Court. This is the court’s decision on this, Mr.

Martinez’s second motion for leave to bring a motion to change his child support obligation both prospectively and retroactively. I also decide his request for an order permitting e-mail service of all documents for use in any such proceedings. [ 3 ] Ms. Scott opposes both requests and asks that his motion be dismissed with costs. UNUSUAL ASPECT OF THIS MOTION [ 4 ] A lot of time was devoted to the hearing of this motion, almost an entire day. Although the evidence in chief was given by affidavit, each party was cross-examined.

Thus, I am well situated to make findings of fact and credibility and to weigh the evidence. BACKGROUND [ 5 ] The parties are the parents of two children. The parties’ daughter is 21 years old and attending university but living at home. The son is 19 years old, and, I find, has not attended a full time program of study since at least May or June 2017. He intends to resume his post-secondary education studies on January 19, 2018. He too continues to reside with the mother, Ms. Scott.

[ 6 ] On October 19, 2010, after hearing a contested motion at which Mr. Martinez participated and was represented by counsel, Justice Wolder made a temporary order for child support based on an imputed income of $71,000. He also ordered the father to direct the lawyer who was handling an impending sale of property for Mr. Martinez, to pay a portion of the sale proceeds to the mother on account of arrears. Justice Wolder’s reasons, particularly with respect to why he imputed an annual income to the respondent of $71,000, are well articulated in his endorsement.

It reads in part as follows: After hearing submissions on behalf of both parties and considering the evidence filed, this court finds that although the respondent has represented many different levels of his income to different lending or financial institutions, he claimed that his income about a year ago was $71,000 per year, for the purposes of securing a mortgage on a house that he is selling this year after making a $77,000 profit. He was able to make all the mortgage payments on the house.

He admittedly states that he has often misrepresented actual income depending on the needs or the recipient of the information. Therefore his current claims that his actual income is in these 30,000 to 40,000 / year range is not credible, considering the respondent’s lifestyle maintained by him as demonstrated by the applicant’s evidence. [ 7 ] Justice Wolder made it clear to Mr. Martinez that he would have the right to attempt to establish at trial that his income was in fact misrepresented by him and over estimated by him. [ 8 ] Shortly after Justice Wolder’s order Mr.

Martinez left the country and moved to Uruguay. He did so with the net sale proceeds, paying no portion thereof to Ms. Scott as directed by Justice Wolder. [ 9 ] On May 13, 2011, the matter came to trial before Justice O’Connell. Mr. Martinez did not show up. Justice O’Connell struck his pleadings and proceeded to decide the issues by way of uncontested trial. She made a final order that day. Among other things, she too imputed the father with an annual income of $71,000. [ 10 ] Pursuant to the final order of May 13, 2011 (which mirrors Justice Wolder’s 2010 temporary order for ongoing child support), Mr.

Martinez is required to pay $1455 per month in support [$1055 table support and $400 a month towards

section 7 expenses, $150 of which, being on account of orthodontic expenses]. She also fixed arrears at $5022.50. [ 11 ] At this hearing Mr. Martinez admitted that he learned of Justice O’Connell’s order shortly after it was made as his current wife had attended court on May 13, 2011. He does not agree with the level of income imputed to him by either Justice Wolder or Justice O’Connell. Despite his disagreement and timely awareness of the results, Mr. Martinez did not move to have either order set aside. He also did not appeal either of them. [ 12 ] Mr.

Martinez returned to Canada in February 2016. [ 13 ] He paid nothing towards his ongoing support obligation or arrears while away and for about 1 ½ years after his return to Canada, except for a one-time payment of $5,000 made in 2016. This was paid shortly after his return to Canada and, I find, as a gesture to stave off enforcement action planned by the Family Responsibility Office (“the FRO”). [ 14 ] Mr. Martinez is in arrears of both child support and

section 7 expenses in excess of $100,000, if one includes interest and applicable FRO enforcement fees. [ 15 ] The Director of the Family Responsibility Office issued a Notice of Default Hearing on October 19, 2016. Justice Paulseth made a temporary default order on May 12, 2017 with a very low monthly payment term. [ 16 ] Mr. Martinez brought his first motion for leave to commence a motion to change child support in Milton. It was brought ex parte . By order dated July 14, 2017, Justice Kurz dismissed the ex parte motion for leave. He made some very negative findings about Mr.

Martinez and his then counsel’s conduct. [ 17 ] On July 27, 2017, Ms. Scott took over carriage of the default proceedings, from the FRO and the default proceedings were shortly thereafter transferred to Milton. [ 18 ] Ms. Scott brought a motion to vary the payment terms of the temporary default order, for disclosure, and other relief relating to Mr. Martinez’s wife and mother in law. I heard that motion on September 26, 2017.

By temporary order dated September 29, 2017, I ordered, among other things that, Justice Paulseth’s order dated May 12, 2017, is varied such that on October 2, 2017, and on the 1 st (first) day of each month thereafter, Mr. Martinez is to pay $1055 on account of his ongoing child support obligation together with the sum of $400 towards

section 7 expenses and together with $100 on account of arrears of support. The total payable is $1555 per month. I also made orders for disclosure and for Mr. Martinez to deposit his Canadian and Uruguay passports into court. [ 19 ] At the time of this hearing Mr. Martinez was in compliance with the payment terms of my temporary default order. [ 20 ] At the start of this hearing Mr. Martinez had not fully complied with his disclosure obligations under the Family Law Rules , the Child Support Guidelines, O Reg 391/97, (the Guidelines ), and previous court orders.

By the end of the day, however, he had provided all of the outstanding disclosure. THE ISSUES [ 21 ] There were some housekeeping issues raised at the outset of this hearing which were resolved on consent. A separate endorsement addressing those issues will be released in due course. [ 22 ] The contested issues this court decides in these reasons are these: (

a) Should leave be granted to Mr. Martinez to start a motion to change his child support obligations, retroactively and prospectively?

(

b) Should the parties be able to serve each other by email with future materials for use in these proceedings? POSITIONS The Father’s Position and Argument [23] With respect to the main issue, leave, If permitted to bring a motion to change, Mr. Martinez intends to seek a downwardsadjustment of his support obligation both prospectively and retroactively. His counsel told the court that he hopes to seek an adjustmentto his support obligation retroactive to the 2010 temporary order of Justice Wolder. Mr.

Martinez’s position is that the court ought togrant him leave without any restriction on the claims he may make. [24] His argument is essentially this: Justices Wolder and O’Connell imputed him with a level of income that was much higher thanhis actual income.

He was not then, nor has he ever since earned an annual income of $71,000. [25] He claims that he left Canada because: he could no longer cope with the stress of the ongoing family litigation; was beingcrushed financially under the weight of his debts; and, needed to be with his mother who lives there and was suffering from significanthealth issues. [26] Mr. Martinez also blames his poor behaviour primarily on others. He claims he was underrepresented and received and actedon bad advice.

He claims that he has now demonstrated that he is acting in good faith and trying to do the right thing. [27] His counsel initially submitted three cases for the court to consider [Dobson v. Green, 2012 ONSC 4432, Kallaba v.BylyKbashi, (ON CA), and Premi v Khodier, 2008 ONCA 313 (On CA). In each case the litigant seeking leave hadbeen declared a vexatious litigant and faced some limit on the right to litigate in future. In each case leave to engage in future litigationwas sought, and ultimately granted. [28] Counsel submits that the behaviour of the litigants in those cases was far more egregious than that of Mr.

Martinez and thus, asthey were granted leave, so too should this court grant leave to Mr. Martinez. [29] Mr. Martinez’s counsel also relies on these cases for the proposition that it would be unfair to refuse Mr. Martinez theopportunity to seek retroactive relief based on his actual income because the matter of his actual income has not been determined. [30] Furthermore, she submits Mr. Martinez has an arguable case that there have been changes in his and the children’scircumstances, which necessitate a change in his support obligation.

As these changes have not been the subject of previous litigation,allowing him to proceed with his motion to change will not amount to an abuse of process. The Mother’s Position and Argument [31] Ms. Scott asks this court to dismiss Mr. Martinez motion for leave. She submits that Justice O’Connell did not provide anydetails on corrective actions the respondent must take to obtain leave of the court. In such circumstances, the reasons given by JusticeO’Connell provide such guidance. [32] She submits that based on Justice O’Connell’s endorsement, to secure leave, Mr.

Martinez must demonstrate that he no longerengages in the type of behaviours he was found to have engaged in at the time of the order: filing false affidavits; misleading the court;not complying with court orders; and, absconding the jurisdiction. [33] Her stance is that Mr. Martinez has continued, right up to the date of this hearing, to engage in these behaviours. As such, he isnot acting in good faith and he should not be denied leave. ISSUE #1: SHOULD LEAVE BE GRANTED TO MR. MARTINEZ TO BRING A MOTION TO CHANGE HIS SUPPORTOBLIGATION The Test for Leave and Relevant Legal Principles [34] Counsel for Mr.

Martinez submitted an additional case, Belway v Weber, 2017 ABCA 108 (Alta CA). That case, while notdirectly on point and tied specifically the sections of statues and rules that do not apply in this, case, none the less provides a goodstarting point in terms of determining the test to be applied by the court in deciding whether to grant Mr. Martinez the leave he seeks. [35] In that case Mr. Belway had twice been declared a vexatious litigant, and was required to obtain leave before bringing anyfurther applications to vary the terms of a consent order.

His motion before the lower court for leave to bring an application to vary childsupport was denied.

He then sought permission from the Alberta Court of Appeal, to appeal the decision of the case management Justicedenying him leave. [36] The Alberta Court of Appeal makes it clear at paragraph 3 of its decision that before granting permission to a vexatious litigantto initiate or continue proceedings, the Court must be satisfied that the litigant has both reasonable grounds, and that the application is notan abuse of process. [37] In assessing reasonable grounds or put another way, whether the appellant had an arguable case, the Court of Appeal looked atthe rule governing the granting of leave to appeal. [38] After satisfying itself that Mr.

Belway had an arguable case on the merits (vis-à-vis meeting the test for leave to appeal), it thenwent on to examine whether Mr. Belway could demonstrate that the proposed application would not amount to an abuse of process.

Itfound that on the single issue of whether the child’s age and attendance at University represents a material change of circumstance doesnot constitute an abuse of process because unlike the changed circumstances relied on in previous failed applications, the change ofcircumstances argued in that application had not been previously tested by the parties and concerned only future child support payments.

[ 39 ] The general principle I draw from this case, and the starting point in terms of the legal standard to be applied in determining whether leave should be granted is this: To obtain leave, Mr. Martinez must, at minimum, demonstrate to this court that he has an arguable case on the merits – a prima facie case for the relief he intends to seek if leave is granted. [ 40 ] The test and thus, his onus on this motion does not stop there, however. Justice O’Connell imposed the limitation on Mr.

Martinez ability to litigate in future because he had failed to participate in the court process properly, honestly and in good faith. By making the order that she did, Justice O’Connell appointed the Court the gatekeeper to future litigation on the part of Mr. Martinez. [ 41 ] The reasons for her order are obvious both from the reasons she sets out in her endorsement and the rules cited therein as the authority she relied on (rules 14(22), 14(23), 15(27), 16(12)(iv) and 19(10) of the version of the Family Law Rules in force at the time, Family Law Rules , O Reg 114/99).

While the focus is on specific conduct – dishonesty and deceit, filing false affidavits, failure to make disclosure, ignoring and failing to obey court orders - both these rules and her specific reasons speak to the broader objective – ensuring that Mr. Martinez is only permitted to use the court process if he can demonstrate that he is prepared to do so properly, honestly, and in good faith. [ 42 ] The test therefor that Mr. Martinez must meet to persuade this court to exercise its discretion to grant him leave to bring a motion to change his support obligation is a two-fold test: (

a) Does he have an arguable case on the merits – a prima facie case for the relief he intends to seek if leave is granted; and, (

b) Can the court be assured, with or without terms, that allowing Mr. Martinez to bring his motion to change will not result in an abuse of process? [ 43 ] I note at the outset that both parties focused their argument on the “abuse of process” prong of the test for leave. Neither party seems to have appreciated the significance of the other question or part of the test that Mr. Martinez must meet to obtain leave.

In my view and following the approach taken by the Alberta Court of Appeal in Belway v Weber , we do not even get to the issue of whether the proposed litigation would amount to an abuse of process or whether it is still necessary to prevent him from commencing litigation in order to protect Ms. Scott and the administration of justice, unless Mr. Martinez can demonstrate that he has an arguable case on the merits. Thus, this is where I begin and to which I now turn. Part One of the Test for Leave: Does Mr. Martinez have an Arguable Case on the Merits?

The Legal Tests Applicable on the Merits [ 44 ] In order to decide if Mr. Martinez has an arguable case, it is important to understand the substantive legal tests and principles that will apply to his proposed claims. [ 45 ]

Section 14 of the Child Support Guidelines , provides that one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order: (

a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof; (

b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support. In this case, as income was imputed to Mr. Martinez, it is the latter test that applies. [ 46 ] In Gray v.

Rizzi, 2016 ONCA 152 , the Ontario Court of Appeal , at paragraph 39, states that a material change in the financial means or circumstances of a payor can constitute a change in circumstances for the purpose of a motion to change child support or spousal support. [ 47 ] In the case of Trang v. Trang , 2013 ONSC 1980 , 2013 CarswellOnt 4069, Justice Pazaratz discussed the approach to take in cases where an order for support is made after the payor has been noted in default and later comes forward claiming that the Court set the level of support based on a level of income the payor claims he has never earned.

The starting point, Justice Pazaratz states, is that the party seeking the change must establish a “material change in circumstances”. The rational for this is explained by Pazaratz J. at paragraphs 53 – 55. [ 48 ] The burden of proof, or onus, is discussed by Pazaratz J. at paragraph 55. He makes clear that the onus should not fall on the support recipient to establish why income should still be imputed on a motion to change, because that determination has already been made. Rather, the onus is on the support payor to establish that there should be a change in the way their income is to be calculated.

What is required to discharge this onus is discussed at length at paragraphs 50 – 52 of the Trang decision. At paragraph 52, Justice Pazaratz states: 52. A party who argues that an imputed income level is no longer appropriate must go beyond establishing their subsequent “declared” income. They must address why income had to be imputed in the first place. They must present evidence of changed circumstances which establish that either: a. It is no longer necessary or appropriate to impute income. The payor’s representations as to income should now be accepted, even if they weren’t accepted before. Or, b.

Even if income should still be imputed, changed circumstances suggest a different amount is more appropriate. [ 49 ] Both the Ontario Court of Appeal in Gray v Rizzi , and the Divisional Court, in the case of Ruffolo v David , 2016 ONSC 754 , 2016 CarswellOnt 2151, have cited the reasoning in Trang with approval.

[ 50 ] At paragraphs 43, 45, 55-70, of its decision in Gray v. Rizzi , th e Court of Appeal states that once the threshold for a variation of child support has been met, the next question is how to approach the retroactive variation in a motion to change. The Court of Appeal adopted the analysis in the case Corcios v. Burgos , 2011 ONSC 3326 (Ont. S.C.J.), which modified the S.(D.B.) v. G.(S.R.), 2006 SCC 37 , [1] [ S.(D.B.) ] principles to a motion to change based on a payor's reduced income.

The court states that when applying the adapted S. (D.B.) principles to retroactively vary child support one must keep in mind the best interests of the child and that the goal is to ensure that the children benefit from the support they are owed when they are owed it. [ 51 ] The approach I have applied in this case to determine whether Mr.

Martinez has an arguable case on the merits, is to consider the evidence and argument on each of the four steps set out by the Supreme Court of Canada in S.(D.B.) and adopted by the Ontario Court of Appeal in Gray v Rizzi as the approach where the payor seeks a downward adjustment of his support obligation or rescission or reduction of arrears, is as follows:

(1) Does Mr. Martinez have an arguable case in terms of proving that a change in circumstances has occurred sufficient to justify changing the support obligation?

(2) Does Mr. Martinez have an arguable case in terms of establishing that this is an appropriate case to grant retroactive relief;

(3) In terms of effective date, has Mr. Martinez an arguable case that the effective date of notice is one of the dates he has asserted; and,

(4) Does Mr. Martinez have an arguable case regarding the quantum of the adjustment he seeks? [ 52 ] I turn to an examination of the evidence in the context of each of these questions. Question 1: Does Mr. Martinez have an arguable case in terms of proving that a change in circumstances has occurred sufficient to justify changing the support obligation? [ 53 ] I note at the outset that although it should have been, no draft of the motion to change form or change of information form was submitted. All that is before the court to identify the claims Mr.

Martinez wishes to advance is what is reflected in his affidavit material (which is minimal) and what his counsel told me during her submissions. [ 54 ] Based on that evidence and those submissions these are my findings with respect to the 9 changes Mr. Martinez asserts or could rely upon to demonstrate that he has an arguable case that a material change in circumstances has occurred. [ 55 ] The main argument of Mr. Martinez is that the issue of his actual income has never been adjudicated.

It should be adjudicated now for two reasons: first, at the time when he left Canada he had what he then considered to be acceptable reasons for leaving and thus, for not being present at the trial to present his evidence regarding his income. Second, his disclosure now of his declared and actual income as at the time when the order was made makes it now possible for a court to determine his actual income and to set his support obligation accordingly.

In other words, his disclosure now of his income at the time when the orders were made and since constitutes a material change in circumstances sufficient to justify a retroactive order back to the date of Justice Wolder’s temporary order and certainly, back to the date of Justice O’Connell’s subsequent final order. [ 56 ] Justice O’Connell found, at the time of trial, that Mr. Martinez had ignored his disclosure obligations. Justice O’Connell’s final order includes a term that required Mr. Martinez to make annual financial disclosure in accordance with

section 24.1 of the Guidelines , each year, within 30 days of the anniversary date of the order. I find that Mr. Martinez did not comply with this term until after the order for such disclosure was again made in the enforcement proceeding on September 26, 2017. I further find that he subsequently provided most of that disclosure by the end of October 2017, but the process was not fully completed until the date of this hearing when he finally provided the last items. [ 57 ] In these circumstances, Mr. Martinez argument has no chance of success.

I adopt as my reason the reasons articulated by the Court of Appeal in Gray v. Rizzi , at paragraph 34 : 34 To allow a party who ignores his or her financial disclosure obligations to later satisfy the requirement and argue that the late disclosure constitutes a material change in circumstances would eviscerate the financial disclosure regime. The practical dangers of such an approach were well-described by Pazaratz J. in Trang v. Trang , 2013 ONSC 1980 , 29 R.F.L. (7th) 364 (Ont.

S.C.J.), at paras. 53 , 54 and 59, discussing motions to change where the final order imputed income to the payor: If “declared income” automatically prevailed on a motion to change support, it would defeat the purpose of imputing income in the first place. It might even be a disincentive for payors to participate in the initial court process. They could simply ignore support Applications — as they often do. They could wait to see if the court imputes income, and how much.

If dissatisfied with the amount, the payor could later return to court waving their tax returns, to suggest that the original judge got it wrong. Support claimants should not be forced to go through this two-step process. Our family court system certainly can’t afford it. Second, Mr.

Martinez relies on events which occurred before the final order was made – relocating with his family to Uruguay, his mother’s illness and the need to move to Uruguay to assist her, the loss or change in his employment status as a result of his decision to move to Uruguay, and his need to escape the stress of his debts and family litigation. The legislation and jurisprudence are clear, the change must have occurred since the order was made. All of these events occurred before the final order was made and thus, cannot be relied on to demonstrate a material change in circumstance.

I find he has not met his onus to demonstrate that he has an arguable case that any of these changes amount to a material change in circumstances. [ 58 ] Mr. Martinez’s claim that the issue of his income has never been adjudicated and his proposal that he be granted leave to seek retroactive relief back to a time which predates the final order and, if not then, starting as at the date of the final order, has no chance of success. No court will decide to award retroactive relief back to Justice Wolder’s temporary order and the court hearing the motion to

change will not substitute its decision for that of Justice O’Connell’s decision. This is because there is no jurisdiction to do so. The imputation of income is an adjudication of the issue of his income for support purposes. It is a finding. As such, unless the underlying order is set aside such as on appeal, no subsequent trier of fact can go behind that finding. In this case neither of the orders was appealed and neither was set aside. I find he has no arguable case on this claim. [ 59 ] The second key argument advanced by Mr. Martinez relates to Ms.

Scott’s failure to seek his consent or to consult him before incurring s. 7 expenses. Through cross-examination of Ms. Scott, counsel for Mr. Martinez was able to establish that Ms. Scott never requested Mr. Martinez’s consent or contribution to incur special or extraordinary expenses after the 2011 order was made. This is of no consequence and cannot amount to a material change in circumstance. Neither the temporary nor final court order requires her to obtain Mr. Martinez’s consent prior to incurring an expense.

Neither orders place an obligation on her that she requests his contribution towards future expenses. There is no arguable case that her failure to consult or obtain consent constitutes the requisite change. [ 60 ] The third argument advanced is that the change in s.7 expenses constitutes a material change in the children’s circumstances. Through cross-examination it was established and I find that the nature and likely quantum of special expenses for the children changed sometime after the 2011 order was made and as the children grew older. For example, of the $400 payable a month by Mr.

Martinez on account of his obligation to pay special expenses, the sum of $150 per month was specifically payable towards the children’s orthodontic expenses. Although it was unclear when, Ms. Scott admitted that this expense was no longer incurred by her at some point after 2011. She also admitted that the nature of the balance of the children’s s. 7 expenses changed over time as they grew older as well. [ 61 ] It was also proven that Ms. Scott had a means of communicating with the respondent as she had maintained contact with both his father and sister both directly and through Facebook.

Although she may not have had an email address for him or contact information for him at the time when Justice O’Connell made her order, it is clear from her evidence, that at some point after the order was made, through her various Internet searches etc., she had a means of contacting him through his business email address, his mother, his sister, his father, and through Facebook. [ 62 ] Finally, it was proven that Ms. Scott never advised Mr. Martinez of the change in the nature and quantum of the children’s

section 7 expenses. Further she admitted that she never provided the annual financial disclosure she was legally obliged to provide to him (that set out in

section 24.1 of the Child Support Guidelines ,), pursuant to paragraph 10 of Justice O’Connell’s order. That paragraph requires annual financial disclosure to be given within 30 days of the anniversary of the order. [ 63 ] Based on the forgoing, I am satisfied that Mr. Martinez has an arguable case for retroactive variation of his fixed obligation to pay $400 per month as his 50% contribution towards the children’s orthodontic and other special expenses.

Put another way, an arguable case that his arrears should be reduced to reflect the actual expenses incurred. [ 64 ] The fourth argument is one of a change in entitlement. I begin with the parties’ daughter. Through cross-examination it was established and I find that the parties’ daughter turned 18 on September 24, 2014 although she continued to attend at a full time postsecondary education program.

She lived in residence for a time but returned for significant periods of time throughout the academic year to her home with her mother. [ 65 ] The mere fact that the daughter attained the age of majority does not, on its own, amount to a material change in circumstance. This is because the presumption under the Guidelines is that the table amount will continue to be payable for a child who has turned 18 so long as the child is enrolled in a full-time program of study. [ 66 ] Counsel for Mr.

Martinez did not cross-examine the mother with respect to any facts surrounding this change and thus, I find, given the presumption and the unchallenged evidence of Ms. Scott, Mr. Martinez is unable to advance and arguable case that such change constitutes a material change in circumstance. [ 67 ] Turning to the parties’ son, through cross-examination it was established and I find that the parties’ son turned 18 on October 10, 2016. Like his sister, he too began attending at a full time post-secondary education program of study. This occurred shortly after graduating high school.

He stopped attending school, however, in June 2017 and as of the date of the hearing of this motion was not enrolled in a full-time program of study. Ms. Scott did indicate however, that he had plans to return to school in January 2018 in a different program. [ 68 ] The legislation ( s. 31 of the Family Law Act, R.S.O. 1990, c.

F.3) and jurisprudence is clear that a parent’s obligation to support his or her child who has attained the age of majority may continue if the child, is enrolled in a full time program of education, or, is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents. I find that the parties’ son was not enrolled in a full time program of study from June 2017 onwards and as there is no evidence that he was otherwise unable to withdraw from parental control, that Mr. Martinez has an arguable case that he had no obligation to support him from June 2017 onwards.

Thus, I find that Mr. Martinez also has an arguable case that his son’s cessation of his full time program of study in May or June 2017, constitutes a material change in circumstance. [ 69 ] Mr. Martinez’s fifth argument is that his return to Canada and the consequent change in his employment and thus income, constitute a material change in his circumstances. [ 70 ] Mr. Martinez’s evidence includes the following claims: that he returned to Canada to take responsibility for his misconduct. He has since worked in general labourer earning $16.40 per hour.

He has and continues to work on a commission basis, with the Mortgage Centre in Woodbridge. In 2016 (the year of his return to Canada), he claims he earned about $5,228.88. More recently he deposed that he has been hired by Allstate in a commission based sales position. In that position, he expects to earn approximately $45,000 per year. [ 71 ] He also claims he no longer operates the driving school he operated at the time when the orders were made. He further, denies Ms.

Scott’s claim, supported by some evidence, that he is operating two out of country businesses (one selling fine hats and the other, jewellery). [ 72 ] His return cannot, on its own, amount to a material change in circumstances for two reasons. First, a material change in

circumstances is generally one that is unavoidable, or one over which the party has no control. In this case Mr. Martinez had completecontrol over the timing of his return (and departure). [73] Similarly, he cannot make out an arguable case that the effect this decision had on his employment status and subsequentincome constitutes a material change in circumstances sufficient to justify a retroactive order back to the date of his return. This isbecause it is directly tied to his misconduct – his decision to quit his employment (including the driving school) and move to Uruguay inthe first place. [74] Justice R.

Zisman, in her decision in Costello v. Costello, 2012 ONCJ 399 (Ont. C.J. ), explains the public policy reasons whycourt’s generally do not reduce a payor’s support obligation when the reasons for loss of employment are due to his own conduct. Sheadopted, as I do in this case, Justice G. Czutrin’s comments in the case of Luckey v. Luckey, (S.C.J.). At paragraphs34, 40–43, and 60, of her decision she writes: 34. In this case, the father lost his employment because he chose to drink and drive and was subsequently arrested and convicted. … 40. I adopt the reasoning of Justice Czutrin in the case of Luckey v.

Luckey (S.C.J.) wherein he stated as follows: Should the dependent children also have to pay the price of this loss of employment? A court will grant relief of support where the payorloses the ability to provide support for reasons beyond the payor's control. The courts have long recognized that where a payor parent quits his or her employment for selfish or for "bad faith" reasons, the courtswill not grant a variation of support based on a material change in the means of the Applicant. After all, as the court comments in Ronan v. Douglas Walsh (1994) (ON CJ), 5 R.F.L. (4th) 235 (Ont. Prov.

Div.) atpage 238: .....a payor spouse who has contracted to pay child support in a separation agreement and then quits his or her employment or changedthe nature of his or her employment in bad faith should not be able to rely on that change. 41. In the case of Luckey v. Luckey, the support payor lost his employment because he was convicted of assaulting a co-worker. Thecourt did not vary his support obligation as this was an event over which he had control.

The court found that it could not condone theparent's actions of assaulting a co-worker to create legitimate inability to pay support that justified a variation. 42. Similarly, in the case of Myatt v. Myatt (1993), (BC SC), 45 R.F.L. (3d) 45, 1993 CarswellBC 595, a policeofficer who lost his job as a result of a drug conviction could not rely on such a loss of employment to reduce his support arrears. 43.

I find that as the father lost his job because of his criminal behaviour, that occurred not just once but twice, he is the author of hisown destiny and he should not be able to rely on his own misconduct as an excuse to avoid his obligations to his children. Even though Iaccept that the father did not commit these offences to avoid his obligation to pay child support, the court should not condone suchconduct. … 60. Based on all of these factors, I would not exercise my discretion to vary the father's current support obligation.

The father certainlycannot expect a court to exercise its discretion to reduce his child support obligation, when he loses a well paying job because of his ownreckless behaviour, fails to abide by court orders for disclosure, fails to provide any proof of any sincere efforts to find alternateemployment and when he is content to work part-time for minimal income. [75] Furthermore, a material change in circumstances is generally one that if known at the time, would likely have resulted in adifferent order [see paragraph 39 of Gray v Rizzi].

I cannot see how, if Justice O’Connell knew of the date of his return – the outcomewould have been any different. Mr. Martinez has simply no chance of success on this argument. [76] Sixth, although not argued, I find that an arguable case is made out that the combination of returning to Canada and thenmaking efforts to take responsibility for his transgressions and for the support of the children, complying with court orders, and takingthe necessary steps to facilitate a fair and just determination of the issues, amounts to a material change in circumstances.

In this regard, Irefer to such efforts as: his payment of the $5,000 to FRO; his compliance with the payment terms of Justice Paulseth’s and then mytemporary default order; his compliance with his disclosure obligations; bringing the first and now this motion for leave; securing fulltime employment; and his recently demonstrated efforts and willingness to re-engage with the family justice system. [77] As noted earlier, in Trang Justice Pazaratz noted that in determining whether a material change in circumstances has occurred,the court ought to consider the reason why income had to be imputed in the first place and then examine if those circumstances havechanged.

In this case income had to be imputed to Mr. Martinez because: 1. There was, by his own choice, no evidence before the court to demonstrate that his previous representation that his income was$71,000 was false or overstated; or, why his evidence as to his actual income was reliable and should be preferred. He also failed to putevidence before the court to refute the mother’s evidence regarding the lifestyle he maintained. 2. He had not complied with his disclosure obligations under the legislation, regulations and court orders; and, 3.

He was no longer willing to participate in the legal process and had put himself out of the reach of the court’s jurisdiction. [78] I am satisfied and find that Mr. Martinez has demonstrated some positive change in his behaviour, approach and commitment toa fair adjudication of the support issues. As such his changed behaviour could arguably constitute a material change in circumstances on

the basis of his actual income. [ 79 ] Fairness now demands that Mr. Martinez be given the opportunity to have the matter of his income and consequent support obligation based on that income, determined at a hearing in which he may participate. [ 80 ] The problem for Mr. Martinez is that other than returning to the jurisdiction and paying the $5,000, all of these changes have all occurred in and since August 4, 2017, with the last of them (his compliance in full with his disclosure obligations) occurring on the date of this hearing.

Thus, while an arguable case is made out, the date of the material change in circumstances, is, at best, sometime after the August 4 2017 and more likely, December 27, 2017 (the date of this hearing and when he was finally in full compliance with all court orders, save and except for the support order he seeks to vary). He has no arguable case for any earlier date vis-à-vis the date of the material change in circumstances. Question 2: Is this an appropriate case for a retroactive order to be made? [ 81 ] At paragraph 60, of the Ontario Court of Appeal’s decision in Gray v.

Rizzi , the Court of Appeal directs that while there is no fixed formula a court must follow, the following factors act as a guide to the court in determining whether to grant retroactive relief, to determine the date of retroactivity, and the quantum of relief:

(1) The nature of the obligation to support, whether contractual, statutory, or judicial.

(2) The ongoing needs of the support recipient and child.

(3) Whether there is a reasonable excuse for the payor's delay in applying for relief.

(4) The ongoing financial capacity of the payor and his ability to make payments towards the outstanding arrears.

(5) The conduct of the payor including whether the payor has made any voluntary payments on account of arrears, whether he has cooperated with the support enforcement authorities, and whether he has complied with obligations and requests for financial disclosure from the support recipient. Behaviour that indicates wilful non-compliance with the terms of the order or failure to work cooperatively to address the child support issue is a factor that militates against even partial rescission or reduction of arrears.

(6) Delay on the part of the support recipient, even a long delay, in enforcing the child support obligation does not, in and of itself, constitute a waiver of the right to claim arrears.

(7) Any hardship that may be occasioned by a retroactive order reducing arrears or rescinding arrears or by an order requiring the payment of substantial arrears. [ 82 ] The support obligation in this case is judicial. It was made following a trial at which Mr. Martinez chose not to participate and Knew or ought to have known, based on Justice Wolder’s comments in his endorsement referenced earlier in the background

section of these reasons, that he would have an opportunity to show why his representations to a lender that his annual income was $71,000 should not be relied on. [ 83 ] I have no detailed evidence as to the ongoing needs of the support recipient and the children. However, both children continue to reside with her full time and thus, would derive some benefit from the payment of arrears. [ 84 ] There is no evidence of delay on the part of Ms. Scott in enforcing the child support. [ 85 ] On the other hand, there is significant delay on the part of Mr. Martinez in addressing his claims vis-à-vis child support.

The first time he took any active steps to address this issue was in June 2017, when he brought his first motion for leave to bring a motion to change, without notice to Ms. Scott. After that and specifically, after Ms. Scott took over carriage of the default proceedings in July 2017 and the matter transferred to Milton, Mr. Martinez has managed to do a lot of work in a relatively short period of time to move the matter forward. [ 86 ] With respect to any hardship that may be occasioned by requiring the payment of substantial arrears, Ms.

Scott has put sufficient evidence before me and drawn out admissions during her cross-examination of the father, to raise doubt about this. She has shown that Mr. Martinez representations vis-à-vis his current financial circumstances are not to be taken at face value and are likely untrue. For example, she has shown that: 1. He may still be operating two businesses abroad; 2. He is a beneficial owner of a home, title to which is in his mother in law’s name and that he holds a ½ interest in; 3.

He returned to Canada with over $100,000 in savings (the money used to put a down payment on the property just referred to); 4. His living expenses far exceed his and his wife’s declared income; 5. He retained savings even after purchasing the home; 6. He has been given significant amounts of money from a friend, since running out of those savings. [ 87 ] There is no doubt that Mr. Martinez has engaged in blameworthy conduct. In this regard I note the following: 1. He failed to comply with the disclosure orders of Justice O’Connell and Wolder; 2.

He failed to direct that his real estate lawyer pay, out of the sale proceeds, the arrears of support as directed by Justice Wolder;

3. He left the jurisdiction with all of the sale proceeds paid to him on account of the sale of property and returned with substantial savings. 4. He made no annual financial disclosure and in fact made no disclosure whatsoever until the fall of 2017; 5. He brought a motion for leave which was dismissed, in part, because he had been less than honest and forthright; 6. He paid no support while abroad even though he clearly had savings and income that he could have used to pay something in the way of child support; 7.

He left Canada with over $77,000 in sale proceeds and returned to Canada with over $100,000 in savings. He had the resources upon his return to Canada to honour his support obligations in whole or in part. Despite this, from the time of his return in February 2016 until Justice Paulseth made her temporary default order in mid-2017, he paid nothing more than the $5,000 he paid to FRO upon his return to Canada to stave off enforcement; 8. He purchased the home he and his family currently reside in with part of the savings he returned to Canada. He placed title in his mother’ in law’s name.

He lied to this court by denying that he had any interest in the property initially, and by denying initially that he and his wife were making the mortgage payments due each month. Instead and until he was found out, he claimed he was merely a tenant paying rent and his mother in law the landlord. It has since been proven, and I find that, he and his wife are the beneficial owners of the property and they are paying the mortgage e and related expenses; 9. He failed to keep the FRO updated as to his address and when asked for it, gave an address where he no longer lived.

His evidence at this hearing was that he changed his mailing address for with all but the FRO. He claimed he not telling the FRO was an oversight. 10. He lied to the Canada Revenue Agency when filing his tax returns while living outside of Canada. Not only did he claim to be a resident n Ontario but he claimed business income and expenses for a business he admitted to this court he was not operating at the time. 11. He has, even since July 2017, consistently engaged in a game of “Hide and Seek”. He has made false claims (i.e.

Regarding his financial resources, his residential address, and his interest in the home he and his family live in) and then, after Ms.

Scott has gone to extensive effort to prove that these claims are false and he is thus, found out to have lied, comes clean about the truth, blaming his deceit or misrepresentations on his lawyers, his poor grasp and command of the English language, and his lack of sophistication. [ 88 ] There is more but the forgoing demonstrates the point. [ 89 ] I find his “explanation” for these deceptions - that he is unsophisticated or lacks command of the English language and thus, did not understand things - not credible. Through her cross-examination of him Ms.

Scott adeptly showed that he holds a mortgage license and that he wrote his licensing exams in English, without accommodation, and passed on the first try. This alone countenances his argument that he lacks command over the English language. [ 90 ] Further, he is employed in the field of mortgage applications. It is simply not believable that he lacked the sophistication to know what he was doing when he placed title to the home in his mother in law’s name.

Given his profession it is not believable that he somehow identified himself as a tenant paying rent because he was not sophisticated enough to understand the true difference between that relationship and the one he actually has with his mother in law. In any event, he was lying. It has been proven by Ms. Scott that the mortgage payments were coming out of an account over which he and his current wife have control. [ 91 ] Having listened to him during cross-examination and looking at the evidence in its totality, he is anything but unsophisticated.

The more appropriate description is dishonest, not trustworthy, cunning, and, highly strategic. By delaying the enforcement proceedings and in bringing the motion for leave, and by failing to file affidavit material in the enforcement proceedings placing title to his home in his mother in law’s name, and delaying in giving full disclosure in these proceedings, he has managed to hide his interest in property so as to keep it out of the reach of his creditors, including Ms. Scott.

He has also managed to hide his savings long enough to deplete them. [ 92 ] I conclude that with the exception of an arguable case for adjustment of arrears on account of

section 7 expenses and on account of the changed entitlement status of his son, even if I am wrong about any of the changes he claimed but which I have found has no arguable case, he has no arguable case when it comes to persuading a court that this is an appropriate case to award any form of retroactive relief prior to the date of this hearing [2] . Question 4: What is the effective date of notice? [ 93 ] In S. (D.B.) , supra, the Supreme Court of Canada held that, as a general rule, the date of effective notice should serve as the date to which the award should be retroactive [ see paragraph 118].

It also held that it will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given [see paragraph 123]. That these two principles apply in cases where the payor seeks a retroactive downward adjustment of his support obligation or the reduction and rescission of arrears, is confirmed by the Ontario Court of Appeal in Gray v. Rizzi , at paragraph 45 . [ 94 ] Justice S. Sherr reviews the concept of effective notice and what is required to demonstrate it in his recent decision in the case of Watson v. Watson , 2017 CarswellOnt 1665, 2017 ONCJ 24 (Ont.

CJ) . Although the context of his analysis is such that the recipient was seeking a retroactive increase, the legal principles are equally applicable where a retroactive downward adjustment or rescission of arrears is sought.

At paragraphs 96 – 104 Justice Sherr states: 98 Where ordered, an award should generally be retroactive to the date when the recipient gave the payor effective notice of his or her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility (S. (D.B.), par. 5 ). 99 Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the

current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done, the payor can no longer assume that the status quo is fair ( S. (D.B. ), par. 121 ). In this case, the mother gave the father effective notice of her claim for child and spousal support in the letter sent by her lawyer to the father's lawyer, dated May 8, 2013. 100 Once the issue is raised, the recipient must still be responsible in moving the discussion forward. If he or she does not, legal action should be contemplated.

A prolonged period of inactivity after effective notice may indicate that the payor's reasonable interest in certainty has returned. Thus, even if effective notice has already been given, it will usually be inappropriate to delve too far into the past. ( S. (D.B.) par.123). This principle is very relevant to this case. [ 95 ] I adopt and apply this same reasoning to this case, although modified to show the recipient’s obligations above as those of the payor seeking retroactive relief. [ 96 ] In this case the earliest effective notice date that Mr. Martinez has an arguable case for is sometime after July 14, 2017.

This is why I make this finding: I find that implied notice was given sometime after that and by August 4, 2017. On July 14, 2017, Justice Kurz dismissed the motion for leave to bring a motion to change. That motion was brought without notice to Ms. Scott. It is not clear when or how she found out about it. Ms. Scott took over carriage of the enforcement proceeding from the FRO on July 27, 2017. As a result she was in attendance at court on August 4, 2017, when the matter next came before the court on the default notice. From her attendance that date it is clear that she had learned about the motion for leave.

I say this because there is a note in Justice Paulseth’s endorsement of the day that discusses the motion and the fact that it was dismissed. [ 97 ] Other than the implied notice I have just referred to, there is no evidence whatsoever that Mr. Martinez broached the subject of child support or s. 7 expenses with Ms. Scott until the hearing in the enforcement proceedings held on September 26, 2017. Mr. Martinez did not serve or file any material whatsoever for use on that hearing until after that date. [ 98 ] The date of formal notice is after November 1, 2017, the date when Mr.

Martinez served his 14B Motion form requesting leave to bring a motion to change on Ms. Scott. [ 99 ] Given the lack of formal notice until November 2017, effective notice prior to August 4, 2017, and Mr. Martinez blameworthy conduct which persisted unabated until sometime after September 26, 2017, Mr. Martinez has no chance of convincing the motion to change justice to award him retroactive relief based on a change in his income, prior to August 4, 2017, at best and most likely November 2017.

Giving him the benefit of the two possible dates, and putting it another way, he has an arguable case for retroactive adjustment based on his income back to August 4, 2017. [ 100 ] There is one caveat to this and that relates to a request to adjust arrears on account of

section 7 expenses and on account of the fact that the parties’ son likely stopped being entitled to support in June 2017. Here, and as already discussed earlier, the blameworthy conduct lies at the feet of Ms. Scott. Although the approach when there is blameworthy conduct may justify retroactive relief going back to 3 years from the date of formal notice (which in this case would be November 2015), Mr. Martinez has no chance of convincing a judge to award him any form of retroactive relief prior to his return to Canada, for the reasons I have already given. Thus, I find that Mr.

Martinez has an arguable case for retroactive relief with respect to his son’s entitlement back to June 2017 and with respect to

section 7 expenses for both children, back to February 2016. Question 4: What is the appropriate quantum of relief? [ 101 ] On the evidence before me I am not in a position to determine if Mr. Martinez has an arguable case on quantum. This is something better left to the motion to change trial judge. Part two of the Test for Leave: Can the Court Be Assured, With or Without Terms, that Allowing Mr. Martinez to Bring His Motion to Change Will Not Result In An Abuse Of Process? [ 102 ] While I have found that Mr.

Martinez is not credible, has continued in his practice of putting false, incorrect, or misleading evidence before the court, and, has continued to engage in a strategy of “hide and seek”, I would still grant leave to Mr. Martinez to bring a motion to change. I have decided this for three reasons: [ 103 ] First, the grounds upon which I have found Mr. Martinez has an arguable case are very narrow.

Allowing him to proceed with a motion to change to seek that specific and limited relief will not result in an abuse of process because fairness and justice demands that those claims be adjudicated. [ 104 ] Second, there are some signs that Mr. Martinez is prepared to engage in this litigation process properly and in good faith. For example: 1. He has been paying the support due under the September 26, 2017 temporary default order; 2. He has now made all of the disclosure he was ordered to provide; 3.

He has refiled his income tax returns for the years he was out of the country, to accurately reflect his residency status, correct misstatements as to his income, and he claims, to accurately report his income; 4. When he discovered a mistake in his most recent sworn evidence regarding who gave him the loan, he attempted to correct this by telling his lawyer. She inadvertently failed to advise Ms. Scott of the correction; and, 5. He brought his motion for leave. [ 105 ] Third, the significant risk of prejudice to Ms. Scott and the administration of justice, if Mr.

Martinez elects not to engage in the process properly, honestly and diligently, can be mitigated. This can be achieved in two ways: by way of orders designed to expedite the

process and by making an order for security for costs. [ 106 ] Ms. Scott asks me to direct that $20,000 be posted as security. Counsel for Mr. Martinez suggests $10,000 is the more reasonable amount given Ms. Scott does not have counsel. I agree with counsel for Mr. Martinez because there is no evidence that Ms. Scott will retain counsel and so her costs are likely to be relatively low. I have thus, made an order for Mr. Martinez to post $10,000 as security for costs. [ 107 ] I cannot order, as counsel for Mr.

Martinez suggests, that the security be in the form of essentially, a lien against the property to which his mother is the titled owner and he and his wife the beneficial owners. His mother in law is not a party to these proceedings. I thus, order that the security be posted in the form of actual funds, paid into court. [ 108 ] To expedite the process I have made various orders for disclosure to be given on the part of Ms. Scott. I have also set deadlines for various steps to be taken.

It is my intention as the case management justice to deal with any additional requests for disclosure on the next attendance and then to

schedule a settlement conference so that the motion to change can proceed to trial expeditiously. It is my goal to minimize the number of attendances going forward. ISSUE #2: SHOULD THE PARTIES BE ABLE TO SERVE EACH OTHER BY EMAIL WITH FUTURE MATERIALS FOR USE IN THESE PROCEEDINGS? [ 109 ] Mr. Martinez seeks an order that he be able to serve Ms. Scott with any future materials for use at these proceedings via email regardless of their nature or number of pages. His counsel argues that this is cost effective and will ensure that there are no future problems related to service.

She proposed certain conditions that would ensure the receiving party can double check receipt of all material. For example, she suggested that one attachment to the email would be a chart setting out each exhibit accompanied by a second attachment consisting of the affidavit, and the third attachment consisting of the exhibits themselves. [ 110 ] Ms. Scott opposes service of any materials over and above 20 pages via email. She submitted that she is a “paper oriented” person and would need to print the material delivered to her in order to be able to use it. Thus, while this method of service may save Mr.

Martinez expense, those savings would come at her expense as she would have to cover the costs associated with printing voluminous materials. [ 111 ] The material filed in this and the enforcement proceedings has been voluminous with much of that volume attributable to exhibits. Materials have been filed, by Mr. Martinez in the wrong records. The volumes for both proceedings are a mess with more documents than the usual 100 page maximum filed in certain volumes. Tabs have not been used to segregate documents. The indices are a mess. [ 112 ] The confusion is not Mr.

Martinez fault but these difficulties suggest to me that there will be more problems and confusion in future. I have little confidence that the parties will carry out the terms counsel for Mr. Martinez has suggested govern email service, properly and without adding to the confusion and difficulty managing the documents. [ 113 ] Furthermore, Ms. Scott is self-represented and while she has done an admirable job so far, I do not expect her to possess the level of understanding counsel possesses when it comes to organizing court materials.

It is unfair to expect her to put together documents emailed to her and to expect that she will organize them in the way counsel and the court intended. It is important to ensure that the documents she has to work with from the respondent be organized in the exact same way as those that will be provided to the judge. This can only be done if a hard copy is delivered. [ 114 ] For this reason I dismiss this request. If Mr. Martinez wishes to serve by email he will have to do so as per the manner set out in the Family Law Rules . CONCLUSION AND ORDER [ 115 ] For all these reasons I make the following order:

(1) The respondent’s request for blanket email service is dismissed. Service shall be carried out as permitted in the Family Law Rules .

(2) On the issue of whether the son’s age and nonattendance at a full time program of study represents a material change in circumstances for the purposes of a retroactive adjustment to the respondent’s support obligation or justifies a reduction in arrears the respondent is granted leave to commence a motion to change. Relief may be sought back to the date when the son ceased attending his full time program of study;

(3) On the issue of whether there was a material change in the nature, type and quantum of

section 7 expenses for both children, and an adjustment to arrears or the respondent’s 50% share based on the expenses actually incurred, the respondent is granted leave to bring a motion to change. Relief may be sought retroactive to February 2016.

(4) The respondent is granted leave to bring a motion to change to seek a determination of his income for child support purposes and a retroactive and prospective adjustment to his support obligation, on the basis of his income, from August 4, 2017 onwards.

(5) Other than a claim for costs and the three claims the respondent has been granted leave above to assert in his proposed motion to change, the respondent shall not make any other claim for relief in his motion to change.

(6) The respondent shall concurrent with the commencement of his motion to change, pay into court the sum of $10,000 as security for costs on the motion to change. Unless otherwise ordered, said funds shall be held by the court until the motion to change proceedings have been concluded and the issue of costs determined, whereupon they will be released as directed by the trier of fact.

(7) The transcript of evidence in this proceeding shall form part of the evidence at any trial in the motion to change proceedings;

(8) The applicant shall, within 30 days of the date of this order, present the respondent with an itemized list of all

section 7 expenses for each child incurred by her from February 2016 onwards. She shall also produce all documents in her possession or control which relate to said costs, to substantiate these costs. Said material is to be provided to the respondent in a bound documents brief. The brief shall have an index at the front of it setting out the date, author, and nature of the document found in the brief as well as the tab number at which it can be found. Tab 1 shall consist of three charts, one for each of 2016, 2017, and 2018 year to date.

These charts shall set out the name of the child for which an expense was incurred, the nature of the expense, the total cost, the total amount the applicant paid, and the tab number of the brief at which the supporting documentation the applicant relies upon can be found. The backup documents themselves shall follow segregated by tabs. All pages in the brief are to be numbered consecutively. The brief is to be bound.

(9) The applicant shall, within 30 days, produce the final report card for the parties’ son from high school, and documentary proof of the son’s attendance at a full time program of study thereafter, and proof of credits earned (i.e. report cards). She shall also provide an affidavit setting out the specific details relating to the son’s attendance at a post-secondary education program including start dates, end dates, the nature of the program, all courses taken, and all credits earned.

(10) The respondent shall commence his motion to change within 45 days of the date of this order.

(11) If either party seeks costs of this motion for leave, he or she is to serve the other side with a statement setting out the amount he or she seeks in costs, his or her itemized bill of costs, and any authority he or she will be relying upon by February 28, 2018. The parties will make oral submissions with regards to costs on the next court attendance.

(12) This matter is adjourned to March 12, 2018 at 10 a.m. The purpose of that attendance will be for the court to hear submissions with respect to costs and to set a date for the case conference and settlement conference in this matter. Released: February 7, 2018 Signed: Justice Victoria Starr [2] I gave serious consideration to his argument that the fault for his behavior, at least from January 2017 to July 2017, lies at the feet of the lawyer representing him at the time. Having now looked at all of the evidence before me, I reject this argument.

While there may be some signs of under representation, there is sufficient evidence to conclude that Mr. Martinez’s is the one primarily responsible for the poor conduct that occurred during this period.