Hayes v. Hayes, 2011 ONCJ 137

Toronto Registry No. DFO 01 1046 01 A1 DATE: 2011·III·08 CITATION: Hayes v. Hayes, 2011 ONCJ 137 ONTARIO COURT OF JUSTICE BETWEEN: ROSE MARIE HAYES, Applicant (Responding party), — AND — ANTHONY GEORGE BERTRAM HAYES, Respondent (Moving party). Before Justice Debra A.W. Paulseth Heard on 1, 2 and 3 February 2011 Reasons for Judgment released on 8 March 2011 STATUTES AND REGULATIONS CITED Family Law Act, R.S.O. 1990, c. F-3 [as amended],

section 37. CASES CITED Fendelet v. Dohey, 2007 ONCA 475, 158 A.C.W.S. (3d) 626, [2007] W.D.F.L. 4691, [2007] O.J. No. 2519, 2007 Cars​well​Ont 4079(Ont. C.A.). Harris and 358207 Ontario Ltd. v. Harris, , 135 O.A.C. 312, 10 R.F.L. (5th) 45, [2000] O.J. No. 2794, 2000 Cars​-well​Ont 2703 (Ont. C.A.). Wark v. Wark (1989), (ON SC), 18 R.F.L. (3d) 75, [1989] O.J. No. 82, 1989 Cars​well​Ont 212 (Ont. Dist. Ct.);affirmed at Wark v. Wark (1990), (ON SCDC), 28 R.F.L. (3d) 410, [1990] O.J. No. 3104, 1990 Cars​well​Ont 295(Ont. Div. Ct.). Willick v. Willick, [1994] 3 S.C.R. 670, 173 N.R. 321, 125 Sask.

R. 81, 81 W.A.C. 81, 119 D.L.R. (4th) 405, 6 R.F.L. (4th) 161, [1994]R.D.F. 617, , [1994] S.C.J. No. 94, 1994 Cars​well​Sask 48. Rose Marie Hayes ................................................................................................ on her own behalf Sarah M. Boulby ............................................................. counsel for the respondent (moving party) For previous proceedings, see: • confirmation of foreign provisional order of spousal support with modest increase: Hayes v. Hayes, , 141A.C.W.S. (3d) 90, [1999] O.J. No. 5964, 1999 Cars​well​Ont 5833 (Ont. Prov.

Div.), per Provincial Judge Penny J. Jones;• ex-wife’s motion to increase spousal support allowed: Hayes v. Hayes, 2005 ONCJ 241, 18 R.F.L. (6th) 340, [2005] O.J. No.3301, 2005 Cars​well​Ont 3385 (Ont. C.J.), per Justice Marion L. Cohen;• payor’s motion to stay non-existent enforcement process dismissed: Hayes v. Hayes, 2009 ONCJ 632, 85 R.F.L. (6th) 333, [2009]O.J. No. 5841, 2009 Cars​well​Ont 8709 (Ont. C.J.), per Justice Ellen B. Murray; and• Justice Murray’s judgment affirmed: Hayes v. Hayes, 2010 ONSC 2410, [2010] O.J. No. 1791, 2010 Cars​well​Ont 2707 (Ont.S.C.), per Justice Craig Perkins.

JUSTICE D.A.W. PAULSETH:— 1: BACKGROUND [1] Rose Marie Hayes was born on 30 October 1938 in Saskatchewan and Anthony George Bertram Hayes was born on 14January 1942 in Scotland. They were married in 1968 and had two boys. Mr. Hayes was employed throughout the marriage and since asa mining analyst and the family enjoyed an affluent international lifestyle. Ms. Hayes was not employed outside the home since 1970. The family last lived together in England when the parents separated in 1989. A final divorce was granted by the English court in 1991. Mr.

Hayes has been remarried to Ashley Hayes for about 20 years. 2: HISTORY OF COURT PROCEEDINGS [2] This is a chronology of court proceedings leading up to this motion to change the order of 7 June 2005: England: • 3 January 1991 — Decree absolute of divorce • 22 July 1992 — Order reflecting divorce settlement of property and annual payments by Mr. Hayes to Ms. Hayes of$50,000 a year, from 1 May 1992 for the joint lives of the parties or until Ms. Hayes remarries or until further order of thecourt. • 10 November 1993 — Order reflecting that Mr.

Hayes is in arrears in the amount of $7,000 and providing for repayment atthe rate of $333 per month. As well, the annual payments were reduced to $20,000 effective 1 December 1993. Mr.Hayes was also ordered to pay Ms. Hayes costs of this proceeding and to provide regular income information. • 5 December 1994 — Order confirming and clarifying the disclosure obligation of Mr. Hayes and increasing the annualperiodic payment to $30,000, effective 1 December 1994. Again, Mr. Hayes was ordered to pay Ms.

Hayes costs. • 30 April 1997 — Order varying support to $50,000 a year, payable monthly effective that day; continued disclosure; costspayable by Mr. Hayes. District Judge Conn referred in his decision to the fact that Mr. Hayes was considered to be a“contemptor” for failure to pay his support and there was an outstanding order of 24 July 1995 sentencing him to a term ofincarceration. Judge Conn went on to say: I am not satisfied with the way in which Mr.

Hayes has conducted himself in relation to theseproceedings and the level of financial disclosures and documentation which he has supplied. • 6 May 2003 — Order discharging the incarceration order Ontario: • 11 January 1999 — Provisional order from England confirmed and varied to $35,000 a year, commencing on 1 May 1997and indexed. See Hayes v. Hayes, , 141 A.C.W.S. (3d) 90, [1999] O.J. No. 5964, 1999 Cars​well​Ont5833 (Ont. Prov. Div.). Mr. Hayes to pay the costs, fixed on 30 July 1999 at $5,000. • 10 March 2000 — Order fixing arrears owing by Mr.

Hayes at $45,100 and costs owing at $9,000. • 17 January 2003 — Motion for contempt brought by Ms. Hayes in February 2002, is dismissed. In her reasons, JusticeMarion L. Cohen stated: In the result, the contempt motion must fail. However, it does appear that the respondent’sprovision of disclosure, and his payment of substantial arrears, both proximate to hearings in thismatter, were motivated by the contempt application. • October 2003 and March 2004 — Motion and cross-motions by Ms. Hayes and Mr. Hayes respectively, culminating in anorder of Justice Cohen on 7 June 2005. The order states, in part, that Mr.

Hayes is to pay support in the amount of $5,500per month to Ms. Hayes, effective 1 January 2002, with interest at 4% on defaulted payments, enforceable through theFamily Responsibility Office. See Hayes v. Hayes, 2005 ONCJ 241, 18 R.F.L. (6th) 340, [2005] O.J. No. 3301, 2005 Cars​-well​Ont 3385 (Ont. C.J.). Costs of the proceeding were later ordered against Mr. Hayes in the amount of $40,000 plusGST plus travel costs for Ms. Hayes of $7,000. [3] It is clear from the reasons of Justice Cohen that she did not find Mr. Hayes credible, in particular, with respect to hisstated income and his expenditures. Although Mr.

Hayes stated that his income was $120,000 a year, Justice Cohen found that employeestock options formed a regular and significant part of his employment compensation. Justice Cohen rejected the submission from Mr.Hayes that the exercise of these stock options was a one-time source of income to him. She found that, at the same time as he wasreporting monthly deficits, he increased his net worth from $-171,663 in April 1998 to $1,384,058 in June 2004.

Further, although hisdebts increased by about $500,000, his assets increased by about $2 million (exhibit 1-1, tab 14, page 19). [4] With respect to real property, Mr. Hayes and his current wife, Ashley, owned a house on Edith Drive in Toronto, whichthey sold after the hearing of the motion before Justice Cohen. This was the only property with associated expenses listed in Mr. Hayesfinancial statement. However, on 18 June 2003, it was learned during the course of that proceeding that Mr. Hayes purchased a propertyin Niagara-on-the-Lake for $655,000 with a mortgage of $355,000 and the balance paid in cash.

On 3 February 2004, Mr. Hayestransferred that property to Ashley as a gift. Mr. Hayes was indirectly making the mortgage payments by transferring the necessary$1,958. a month to Ashley. Indeed, all of the expenses associated with that house were funded by Mr. Hayes through payments toAshley, although he did not show any of the payments in his financial statements filed with the court. Further, Mr. Hayes gaveapproximately $500,000 to Ashley for renovations to the home and about $60,000 for furnishings. [5] Another example in kind, noted by Justice Cohen was ownership of a car. Mr.

Hayes stated that he did not own a car. In cross-examination, it emerged that he was the guarantor on Ashley’s lease of a Mercedes Benz at a cost of about $530 a month.

[ 6 ] Mr. Hayes at that time stated that Ashley did not have the resources to own or maintain a house. [ 7 ] Between June 2003 and September 2004, Mr. Hayes showed a monthly deficit of $1,315, while at the same time, buying and significantly renovating a home in Niagara-on-the-Lake, carrying the Toronto home and mortgage and driving around in a Mercedes. This picture led Justice Cohen to conclude: [45] The respondent [Mr Hayes] has structured his financial affairs in a way that frustrates financial disclosure and could also frustrate enforcement of support payments.

Through the device of his stock options, admittedly with some risk, the respondent is able to expend and defer income at will. . . . 3: CURRENT PROCEEDING [ 8 ] On 9 March 2009, Mr. Hayes filed a motion to change the support order of Justice Cohen. He is seeking to terminate his spousal support obligations, effective 1 April 2009. Mr. Hayes is now 69 years of age. He was forced to retire in January 2008, with severance until March 2009. He has suffered from ill health in recent years and his investment portfolio is exhausted. Mr. Hayes stopped paying support in April 2009.

In February 2010, he filed for bankruptcy. As part of this motion, Mr. Hayes seeks repayment of $7,000 of pre-judgment interest that was “mistakenly” added to the amount of support seized by the sheriff in 2006. [ 9 ] Ms. Hayes is opposed to any variation. 3.1: The Financial Situation of Mr. Hayes [ 10 ] Mr. Hayes testified in this hearing that he probably spent about $1.1 million in renovations to the Niagara home and an additional $100,000 on furnishings. This was in 2004 and 2005. It is currently being taxed on an assessed value of about 1.2 million. In addition to Mr.

Hayes and Ashley’s home on Gage Street, Ashley purchased a second home for about $650,000, also on Gage Street, with funds that she and Mr. Hayes report as coming from her mother and this home is now in both her and her mother’s name. [ 11 ] Until March 2009, when the severance ended, Mr. Hayes earned regular employment income from Etruscan of about $10,000 a month. He exercised his share options, buying and selling, such that his “line 150” income shows as follows: 2004 $665,225 2005 $273,994 2006 $370,535 2007 $871,341 2008 $220,609 2009 $59,830 [ 12 ] Total assets for Mr.

Hayes were identified as: 2004 $2,013,120 2005 $1,220,185 2006 $1,257,418 2007 $568,437 2008 $133,562 2009 $16 [ 13 ] Throughout most of this time, Mr. Hayes testified that he had no other bank account than his investment account and his line-of-credit account. He did admit that, in early 2005, he had a joint account with Ashley at a bank on University Ave. but, after they moved to Niagara-on-the-Lake, that was closed out.

At several points in his evidence, he said that he did not want his assets touched by his ex-wife. [ 14 ] In November 2007, the value of his share options dropped dramatically and reduced his total net worth. As well, because he had been borrowing from the company to exercise the options, he had to repay this loan of $339, 390, which he did in 2007. The interest on the loan was forgiven but added to his income as a taxable benefit, in the amount of $109,617.

All options expired 6 months after his last severance cheque, in September 2009. [ 15 ] The property on Edith Drive in Toronto was sold in 2005 and, after the mortgage, Mr. Hayes’ 50% of the equity was calculated to be $128,945. [ 16 ] The value of his RRSP’s and retirement plan savings in December 2006 was almost $500,000. By December 2007, they had dropped to about half of that. In 2008, he drew out $95,000. By December 2008, they were worth about $13,000 and $16 by December 2009. [ 17 ] Following the court order of 7 June 2005, Mr. Hayes owed costs, arrears and interest totalling approximately $156,000.

He knew that he owed that amount and had indicated that he would pay through their respective counsel. Ms. Hayes registered her judgment with the sheriff. On 6 February 2006, the sheriff seized $163,000 from Mr. Hayes’ account. He disputes the additional $7,000 as pre-judgment interest, which he argues was not part of the order. Attempts to clarify this with the court, by motion to register the order with Family Responsibility Office were dismissed by Justice Brian C. Weagant on 3 May 2006. As part of this motion, Mr. Hayes seeks the return of this $7,000. [ 18 ] Mr.

Hayes was employed by Etruscan Mining Company, which funds gold and diamond exploration. Part of his

employment also came, for a period of time from Novogold, an Alaskan exploration company. By early 2008, Etruscan was in bad financial shape and was closing down operations in Ontario. Mr. Glen Holmes testified by telephone from Halifax in this matter. He was the Financial Vice President and CFO in 2008 and he confirmed that Mr. Hayes was terminated, receiving a retirement package of one-year’s employment income and benefits and a continuation of the share options for a further six months. Mr. Hayes was then entitled to employment insurance for 18 months until August 2010. [ 19 ] Mr.

Hayes did make efforts to find employment after the termination. He started writing business articles in hopes of attracting a contract. This was an area he knew well but the articles posed some ethical dilemmas for him: if a business paid him for the research, then he was not truly being objective. In any event, the business did not produce any income. [ 20 ] In February 2010, Mr. Hayes had significant debts and no real income, with his employment insurance expected to run out later in August. He met with a trustee in bankruptcy and reported the credit card, unpaid taxes and unpaid loan debts. His trustee, Mr.

Sapiro, testified in this hearing. Ms. Hayes has filed an objection to the bankruptcy and a hearing will have to be scheduled. Hearings are backlogged at this point. If the objection had not been registered, Mr. Hayes would have discharged his bankruptcy in 9 months. When advised of the substantial value of the home in Ms. Ashley Hayes’ name, the trustee testified that, because the transfer was more than five years ago, the trustee would not try to interfere with that title. [ 21 ] Currently, Mr. Hayes is entitled to two pensions; from the United Kingdom $214 a month and from his Aviva RRSP $986 a month.

He is deferring his Canada Pension Plan [CPP] and old-age security [OAS] because it would only be lost in the bankruptcy. When he is discharged, he will apply and likely receive approximately $980 a month for CPP. [ 22 ] A comparison of Mr. Hayes’ financial statements from 2008 to 2010 indicates his drop of monthly income from $10,000 to 1,200. This figure will rise again once he applies for CPP and OAS, bringing his annual income to about $30,000. His expenses have been reduced from $15,229 a month, including $5,945.79 for Ms.

Hayes and $3,500 for mortgage and taxes, to about $1,000 a month, including $600 in groceries he gives to Ashley and $300 a month for the insurance premiums for which he testified that Ashley actually pays. He stopped paying his spousal support in April 2009 because “he couldn’t afford it.” 3.2: Health of Mr. Hayes [ 23 ] Mr. Hayes attended at Ashley’s family doctor, of 18 years. Dr. Nunes-Vaz reported by letter dated 13 May 2010 that Mr.

Hayes had suffered from two bouts of shingles, a blocked duct due to gall stones, the removal of his gall bladder and is currently on medication for depression. 3.3: Financial Situation of Ashley Hayes [ 24 ] Ashley Hayes was a stock broker in South Africa, where she and Mr. Hayes were married in March 1991. She emigrated to Canada and originally made a modest income tutoring in languages. In 1992, she launched a small importing business, first in cashmere and then in diamonds. In 2008, she landed a very good sale and made $250,000.

Her business accountant spread that income over two years, $125,000 in each of 2008 and 2009. In 2010, she made $65,000. Ashley is covering most of the expenses now. [ 25 ] Ashley and Anthony Hayes jointly owned 82 Edith Drive in Toronto. When they purchased 440 Gage in Niagara-on-the- Lake, the purchase price was $655,000. Mr. Hayes paid the down payment of $320,000 and the balance was mortgaged. Mr. Hayes transferred his share of the property to Ashley for her security. [ 26 ] Mr. Hayes admitted to lying to protect Ashley.

In previous proceedings, he had hidden the fact of his contract of employment with Novagold. When served with the third party disclosure motion, Ashley was “horrified”, in the words of Mr. Hayes, and retained her own counsel. In his view, she has disclosed everything and co-operated by participating in cross-examinations and written interrogatories. Ashley is also funding Mr. Hayes legal counsel . Mr. Hayes purchased 3 term policies on his life, totally $750,000 and Ashley is paying the premiums now. She is the beneficiary. [ 27 ] Ashley and her mother now own 496 Gage St. property in Niagara-on-the-Lake.

It was purchased with funds from her mother and then transferred into both their names in 2009. 3.4: Financial Situation of Ms. Hayes [ 28 ] Ms. Hayes is 72 years of age. Her entitlement to spousal support is not an issue. Her income consists of spousal support of $5,500 (currently not being paid), pension income of $780 a month ($508 from CPP and OAS, and $279 from UK), 519.48 interest income from her approximately $156,000 in capital/savings. This income has dropped as a result of the drop in the value of her capital and the British pound.

She also owns a farm property in Blaine Lake Saskatchewan, which she inherited from her mother, valued at approximately $35,000, which produces rent of $438. She pays rent on a flat in London and owns a 2000 Plymouth car. Over the past year and a half, her savings have dropped in value and her son has lent her money to pay for lawyers fees and travel to Toronto to defend her support order. Although she had retained counsel throughout this proceeding and wanted to retain a financial evaluator, mentioned by name in the trial management notes as Mr.

Wayne Redsen, she participated in this hearing without either of these supports, as she stated that she could no longer afford them. [ 29 ] In 2005, Justice Cohen noted that the Ms. Hayes’ assets had declined in value from $511,571 in 2003 to $355,498. Considering all of her financial statements filed at that time, Justice Cohen found that a fair indication of her need was between $72,000 and $90,000 a year. The range in her financial statements in this proceeding, without the legal fees, indicates approximately the same level of need and standard of living.

Taking into account the fact that she pays no income tax, and thus adding an equivalent, Ms. Hayes annual income would be $20,980.

3.5: Temporary Variation Order [30] As part of the motion to change proceeding, Justice Murray made a temporary order under

section 37 of the Family LawAct, R.S.O. 1990, c. F-3, as amended, on 1 October 2009, suspending part of the spousal support. See Hayes v. Hayes, 2009 ONCJ 632,85 R.F.L. (6th) 333, [2009] O.J. No. 5841, 2009 Cars​well​Ont 8709 (Ont. C.J.). Mr. Hayes appealed arguing, in part, that the spousalsupport order should have been suspended entirely as Mr. Hayes was without any means to pay. [31] On 23 April 2010, the appeal was dismissed. See Hayes v. Hayes, 2010 ONSC 2410, [2010] O.J. No. 1791, 2010 Cars​-well​Ont 2707 (Ont.

S.C.). 4: LEGAL FRAMEWORK UNDER THE FAMILY LAWACT [32] In a motion to change, the moving party must first show on a balance of probabilities, a material change in circumstancessince the date of the last order or show that evidence that was not available at the time of the last hearing is now available. The type ofmaterial change must be one that: • was not foreseeable as a probable future consequence; see Wark v. Wark, (1989), (ON SC), 18 R.F.L.(3d) 75, [1989] O.J. No. 82, 1989 Cars​well​Ont 212 (Ont. Dist. Ct.); affirmed at Wark v. Wark (1990), (ON SCDC), 28 R.F.L. (3d) 410, [1990] O.J.

No. 3104, 1990 Cars​well​Ont 295 (Ont. Div. Ct.); or • was not a foreseeable event that sprung upon the unaware payor; see Harris and 358207 Ontario Ltd. v. Harris, , 135 O.A.C. 312, 10 R.F.L. (5th) 45, [2000] O.J. No. 2794, 2000 Cars​well​Ont 2703 (Ont. C.A.). [33] The Supreme Court of Canada dealt with this issue in Willick v. Willick, [1994] 3 S.C.R. 670, 173 N.R. 321, 125 Sask. R.81, 81 W.A.C. 81, 119 D.L.R. (4th) 405, 6 R.F.L. (4th) 161, [1994] R.D.F. 617, , [1994] S.C.J. No. 94, 1994 Cars​well​-Sask 48, regarding child support, but the test has been used in spousal support matters as well. Until Willick v.

Willick, a material changein circumstances was one that was significant, grave or weighty that was not anticipated at the time of the original order. Willick v.Willick, introduced the additional and broader test of foreseeability. 5: MR. HAYES’ MATERIAL CHANGE OFCIRCUMSTANCES [34] Mr. Hayes maintains that the combination of his ill health, forced retirement and bankruptcy constitute a material changein his circumstances. 5.1: Health [35] At 69 years of age, Mr. Hayes has had shingles, gall stones and his gall bladder removed. He is currently on medicationfor depression.

There is no evidence as to the cause of this depression, which appears to be wholly treatable by medication. Nor is thereevidence that it is negatively impacting on his standard of living while residing in a million-dollar-plus home in Niagara-on-the-Lakewith his wife Ashley. 5.2: Forced Retirement [36] At the age of 67, Mr. Hayes was forced to retire from his company. The company itself was starting to divest, whichcould not have been a surprise to Mr. Hayes, given the value of his own shares at that time. As well, the fact of retirement at that agecould not have come as a surprise to Mr.

Hayes. 5.3: Employment [37] No one would expect a sixty-nine year old former company executive to be looking for work. Indeed, the decision ofJustice Cohen made it clear that it was not employment income that formed the substantial part of his ability to pay. 5.4: Lifestyle [38] There is no evidence before the court that the lifestyle of Mr. Hayes has changed substantially. He signs any of thecheques he receives over to Ashley and they live as they have before. In fact, having stopped paying support in April 2009, Mr.

Hayesnow owes in spousal support approximately what he paid for furnishings for his home in Niagara-on-the-Lake. There is no evidence thatMr. Hayes gave one thought to investing any of the capital available to him as part of his employment or severance to fulfill his futuresupport obligations. 5.5: Bankruptcy [39] The evidence of Mr. Hayes is that, since the date of the last order of this court increasing his spousal obligation, he

continued to take every cent he could from his income and the accompanying share options and put the cash into property that he then transferred solely to his second wife. The trustee in bankruptcy does not go beyond five years of history and thus, six years later, Mr. Hayes files for bankruptcy with impunity. [ 40 ] In Fendelet v. Dohey , 2007 ONCA 475 , 158 A.C.W.S. (3d) 626, [2007] W.D.F.L. 4691, [2007] O.J. No. 2519, 2007 Cars​well​Ont 4079 (Ont. C.A.), the payor claimed that his financial business woes led to his bankruptcy.

The motion judge found that, since the parties separated, the payor had diverted assets to the benefit of his common law partner and her sister under suspicious circumstances and that he had deliberately stripped himself of the means to honour his support obligations. The motion judge concluded that the payor had failed to discharge the onus of establishing a change in circumstances that would justify any variation. The Court of Appeal agreed with the motion judge’s findings of credibility and dismissed the payor’s appeal. [ 41 ] It is clear from the documents that Mr.

Hayes contributed sizable amounts of money to Ashley’s benefit through 2006, when his total income was $370,535. By 2007, however, his financial affairs did change. He sold about $650,000 in shares then had to repay the loan of $339,000. The interest on the loan is added to his income as a taxable benefit, in the amount of $109,000 and he had to pay out over $200,000 to exercise his options. In November, the stocks fell in value and never really recovered before he was forced out. In 2008, he is laid off and has to cash in $95,000 of RRSP’s that he just invested in 2003.

He then owed taxes and credit cards, which is what really led to the bankruptcy. The actions of the stock market contributed to this state of affairs. Mr. Hayes’ standard of living then became an albatross. [ 42 ] I find that the fall in the value of his investments does constitute a material change in circumstances for Mr. Hayes. 6: CALCULATING CURRENT SPOUSAL SUPPORT [ 43 ] Mr. Hayes is now earning about $20,000. He is not collecting OAS and CPP until his bankruptcy proceeding is concluded. With these additional sources of income, he will bring in approximately $30,000 a year. Mr.

Hayes, however, has positioned himself to continue living in a lifestyle reminiscent of the time of his first marriage. Thus, some additional ability to pay must be imputed to him, taking into account all of his resources. [ 44 ] Ms. Hayes is earning approximately $20,980, grossed up for income tax comparison. Her entitlement is not in question. At her age, it is not reasonable to expect her to contribute any more than she has. [ 45 ] Considering all of the relevant factors, including need, ability to pay, lifestyle, and respective abilities to contribute, Mr.

Hayes should still be expected to contribute some income for Ms. Hayes. I would fix the amount at Can $1,000 a month. 7: COMMENCEMENT DATE FOR THE CHANGE IN SPOUSAL SUPPORT [ 46 ] Mr. Hayes stopped paying spousal support unilaterally on 1 April 2009, having filed a motion to change on 9 March 2009. In this proceeding, he is seeking to have the reduced obligation effective 1 April 2009. [ 47 ] Mr. Hayes comes before this court with a history of non-compliance. Ms. Hayes, on the other hand, counted on the spousal support for about 75% of her income. Mr.

Hayes has been described by this court as conducting himself in a frustrating manner aimed at concealment. Ashley is funding this litigation for him. Ms. Hayes ran out of money to retain counsel before this hearing was held and has been dependent on one of their sons to assist her. On the basis of the very litigious nature of their history, one might be able to conclude that she has had to fight for every cent that she got from Mr. Hayes. It was natural for her to suspect that he had conducted his financial affairs in a more astute manner than he actually did. [ 48 ] Mr.

Hayes was unsuccessful in the appeal of the temporary order reducing his payments and still did not pay anything. [ 49 ] Considering all of the above, I would order the reduced payments to begin on 1 April 2011. Arrears are payable forthwith and subject to post-judgment interest of 4%. 8: PRE-JUDGMENT INTEREST FROM THE 2005 ORDER [ 50 ] The order of 7 June 2005 provides for interest at the rate of 4% from the date of default. The default could only occur from the date of the order.

Thus, the pre-judgment interest of $7,000 should be deducted from the total of the arrears. 9: ENFORCEMENT [ 51 ] The arrears, net of the $7000 and the ongoing spousal support should be enforced through the Family Responsibility Office, unless it is withdrawn.