The Director, Family Responsibility Office, for the benefit of Lucia Felizardo Applicant — v. —, 2021 ONCJ 133

ONTARIO COURT OF JUSTICE CITATION: Ontario (Director, Family Responsibility Office) v.

Felizardo , 2021 ONCJ 133 DATE: March 2, 2021 COURT FILE No.: D90427/16 BETWEEN: The Director, Family Responsibility Office, for the benefit of Lucia Felizardo Applicant — AND — Rui Felizardo Respondent Before Justice Roselyn Zisman Heard on February 22, 2021 Reasons for Judgment released on March 2, 2021 Sobika Sadacharam...................................................................... counsel for the applicant Ritika Kumar………………………………………………………agent for the respondent Decision on motion Zisman, J.: Nature of Proceeding [ 1 ] The Respondent Rui Felizardo (“payor”) has brought a motion to terminate or suspend indefinitely the temporary default order made on July 10, 2019 that requires him to pay spousal support of $5,000 per month. [ 2 ] The Director, Family Responsibility Office (“FRO”), the responding party to the motion, opposes the motion on the basis that the payor has not established that a material change of circumstances has occurred since the temporary default order was granted and he has not provided full and frank financial and medical disclosure.

History of Court Proceedings [ 3 ] FRO is enforcing the final order of Justice Czutrin of the Superior Court of Justice dated November 8, 2011 that was made after

an uncontested hearing. [ 4 ] The payor was ordered to pay spousal support of $5,000.00 per month to Lucia Felizardo (recipient) as of January 1, 2013. [ 5 ] The recipient also received the net proceeds of the parties’ matrimonial home in Woodbridge and their condominium in Collingwood.

The order provided that this lump sum represented the recipient’s equalization payment, costs and spousal support claims up to and including January 2013. [ 6 ] The order continued the temporary order of Justice Spies dated April 9, 2010 that required the payor to pay spousal support of $5,000.00 per month based on an imputed income of $150,000. [ 7 ] On July 18, 2010 the payor’s pleadings were struck for failure to comply with multiple court orders. [ 8 ] The case was registered with FRO in August 2010 and immediately fell into arrears.

The payor has made sporadic payments and has always been in arrears. [ 9 ] The Director’s Statement of Arrears dated February 16, 2021 is filed and indicates arrears of $384,787.13 that includes $400 owing to FRO for enforcement fees. [ 10 ] FRO began enforcement proceedings and commenced a Notice of Default hearing against the payor in March 2016. [ 11 ] At the first appearance on May 24, 2016 a temporary default order was made requiring the payor to pay a lump sum of $1,000.00 by June 21, 2016 as well as provide disclosure including proof that he commenced a Motion to Change. [ 12 ] On June 21, 2016 the payor, who was represented by counsel, paid the $1,000 and advised that he was in the process of bringing his Motion to Change. [ 13 ] The case was further adjourned several times as the payor’s counsel advised that the Motion to Change was being prepared. [ 14 ] As the Motion to Change had still not been issued, on December 20, 2016 a temporary default order was made that the payor pay $5,000 as a lump sum by January 15, 2017 or in default 5 days in jail.

The endorsement states that the court would then hear submissions about ongoing payments. The payor was also ordered to provide financial disclosure. [ 15 ] On the return date, although the payor had only paid $3,500, FRO counsel granted the payor further time to pay the amount owing as he has commenced a new job. [ 16 ] There were further attendances between April 2017 to January 2018.

Although the Motion to Change had still not been issued, counsel for FRO advised that it was garnisheeing 50% of the payor’s income and counsel was content not to pursue any other enforcement measures. [ 17 ] In March 2018, FRO was served with a copy of the issued Motion to Change in Superior Court of Justice with a first appearance date of March 20, 2018. FRO continued to receive monies from its garnishment of the payor’s income. [ 18 ] However, on June 20, 2018 neither the payor or his counsel attended court and FRO counsel had not received any updates with respect to the Motion to Change.

The court ordered that the payor pay the ongoing support of $5,000 within 2 weeks and each month thereafter or in default 5 days in jail. A bench warrant with discretion was issued. [ 19 ] On August 23, 2018 the payor and his new counsel attended court. The payor was not in compliance with the temporary default order and FRO had only received $1,316.08.

The payor was ordered to pay the balance of $3,683.20 within 30 days or be committed to jail for 5 days and a warrant for committal was to issue. [ 20 ] On the next return date of November 7, 2018, the court was advised the payor paid $3,800 and that the warrant of committal was rescinded. [ 21 ] The court was also advised that a temporary motion was scheduled to be heard in the Superior Court of Justice in January 2019.

On consent, counsel agreed to a temporary default order that only required the payor to pay $500.00 for December 2018 and January and February 2019 or in default 3 days in jail. [ 22 ] On the next return date of March 7, 2019, the court was advised that the payor paid the outstanding payments. The court was further advised that a temporary motion to stay the enforcement or terminate the spousal support order was now scheduled to be heard on March 28 th in the Superior Court of Justice.

A further order for payments from the payor was not made. [ 23 ] On May 10, 2019, the court was advised that the motion was heard in the Superior Court of Justice and that the decision was reserved.

The default hearing was further adjourned to await the decision. [ 24 ] On July 10, 2019, which was the 17 th attendance on the default hearing, the court was advised that Justice Hood released his decision on May 24, 2019 dismissing the Payor’s temporary motion. [ 25 ] The payor had sought interim relief within his Motion to Change to forthwith terminate the monthly spousal support payments, terminate all support arrears, suspend FRO’s enforcement proceeding and to direct FRO to return his Canadian passport that had been previously seized as part of its enforcement proceedings. [ 26 ] In dismissing the payor’s temporary motion, Justice Hood [1] held that the payor had not made out a prima facie case for a variation evidencing a material change of circumstances.

Justice Hood made the following findings:

• At the time of the separation the payor and the recipient owned a house and vacation condominium and had well over $400,000 in equity; • The payor owned and operated a number of corporations that showed sizeable director’s fees 2 years prior to separation of about $92,000 and $226,000; • The parties lived an affluent lifestyle despite the payor’s position that he was always a simple labourer making $60,000 per year; • The payor claimed he was no longer able to work as a drywaller and earns far less working as a driver. He only declared income of approximately $9,500 to $27,000 from 2013 and 2016.

However, on the motion, the payor argued that he was prepared to accept income of $60,000 for support purposes; • The payor claimed he was not able to work full time as a drywaller due to his medical issues. The medical letter filed by the payor was found not to be helpful or convincing. The letter merely stated that payor suffered from medical issues, which were under investigation, that prevented him from working full time. Justice Hood noted that there was nothing as to what those issues are or might be or what their treatment or prognosis is; and • The payor did not come to court with clean hands.

He made no effort to comply with the support obligations since November 2011, he ignored the legal process that he started and failed to comply with the disclosure that was required of him and which he had undertaken to provide and he continues to make inadequate disclosure [ 27 ] At the default hearing on July 10, 2019, counsel for the payor advised that as a result of Justice Hood’s decision, the Motion to Change would have to proceed to trial and there was a settlement conference scheduled for August 9, 2019. [ 28 ] In view of the length of time that the default hearing had been before the court, counsel for FRO sought a final default in terms that the payor pay the ongoing spousal support of $5,000 and a yearly lump sum of $60,000 to pay off the arrears in 5 to 6 years. [ 29 ] As the Motion to Change was scheduled for trial, the court only made a temporary order that the payor pay the ongoing spousal support of $5,000 per month on August 1 st , 2019 or in default 5 days in jail and if not paid a hearing for a warrant of committal would be held on August 16 th .

The payor was ordered to continue to pay $5,000 per month until there is a court order changing the outstanding spousal support order of November 8, 2011 and in default 5 days in jail for each missed payment. [ 30 ] On the next court attendance of August16, 2019, the court was advised that the payor had not paid the $5,000 ordered. He paid $2,114.17 and a balance owing of $2,858.83. The payor requested an adjournment but was not prepared to pay any further funds.

After the matter was held down the payor paid a further $1,000 and as a result a further short adjournment was granted. [ 31 ] On the next court attendance on September 4, 2019, the payor provided $1,500 and was then in substantial compliance with the outstanding order of August 1 st .

The settlement conference in the Superior Court of Justice did not proceed as scheduled on August 23 rd . [ 32 ] On October 2, 2019, which was the 20 th attendance on the default, the court was advised that the settlement conference proceeded in the Superior Court of Justice on September 23 rd and orders for disclosure were made and a trial management conference was set for November 27, 2019. [ 33 ] As of October 1 st , the payor was in default of the temporary default order in the amount of $9,335.51 and was ordered to pay this amount or be committed to jail for 9 days or until the sum was sooner paid.

A warrant of committal was issued. [ 34 ] On November 7, 2019 the court was advised that the payor had not made the required payments. A 14B motion for a warrant of committal to issue was granted by the court. [ 35 ] On December 19, 2019 counsel for the payor requested that the warrant for committal be rescinded as the payor had paid $1,000 and owed $7,640.48. FRO sought an order that the warrant of committal be issued and executed.

The court granted the order requested. [ 36 ] Counsel for the payor advised that the trial management conference was scheduled for January 17, 2020 and the matter would then be scheduled for trial. [ 37 ] On January 22, 2020 the payor attended court with new counsel Ms Kumar who advised that the payor was arrested and spent from December 19 to 27, 2019 in jail.

He did not pay the outstanding amounts owed. [ 38 ] Counsel advised that the trial management conference on January 17, 2020 was adjourned to March 23, 2020 as the payor had just retained Ms Kumar and there was a delay in receiving his file from his former counsel. The court was further advised that the payor paid $10,000 in costs with respect to the motion in the Superior Court of Justice so he could proceed with his Motion to Change. [ 39 ] As of January 22, 2020, the payor continued to be in non-compliance with the outstanding temporary default order and owed $12,449.84.

The payor was ordered to pay a further $1,000 that day and a further $1,000 on February 3 and March 3, 2020. [ 40 ] Leave was granted to the payor to bring a motion to vary the temporary default order of July 10, 2019 that requires the payor to pay his ongoing spousal support obligation of $5,000 per month.

The endorsement provided that any monies collected by means of federal diversion payments were not in lieu of the order. [ 41 ] The motion to vary the temporary default order was scheduled for March 26 th but due to COVID-19 the motion was adjourned several times. [ 42 ] On October 8, 2020 a telephone conference proceeded and the court was advised that the Motion to Change in Superior Court of

justice was suspended due to COVID. [ 43 ] After several further delays, the payor‘s motion to vary the temporary default order of July 10, 2019 was heard on February 22, 2021. [ 44 ] This was the 27th attendance since FRO commenced enforcement proceedings in March 2016. [ 45 ] The Motion to Change the final order of Justice Czutrin has been outstanding since March 2018. Ms Kumar is the payor’s third counsel with respect to the Motion to Change.

As of February 22, 2021, counsel is still attempting to obtain a return date for the trial management conference and a trial date has not been set. [ 46 ] It is against this background that the payor’s motion to vary the temporary default order proceeded. [ 47 ] The payor relies on his affidavit sworn December 21, 2020 and his financial statement sworn December 30, 2020. [ 48 ] FRO relies on the affidavit of Tom Ly, a law clerk employed by FRO, sworn November 17, 2019 and the Statement of Arrears filed. FRO counsel also filed a Factum.

Position of the payor and FRO [ 49 ] It is the position of the payor that there has been a material change of circumstances in that there has been a decrease in his income and that due to his medical issues he is no longer able to work full-time. [ 50 ] It is the position of FRO that both these issues were known at the time of the temporary default order of July 10, 2019 and therefore as they predate that order they cannot be relied as proving a material change of circumstances. [ 51 ] FRO counsel further submits that the payor has not provided full and frank disclosure with respect to both his financial circumstances or his medical health issues.

Legal Framework [ 52 ] This proceeding is governed by the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 (“ FRSAEA ”). [ 53 ] The two main issues at a default hearing (temporary or final) are the amount owing and the payor’s ability to pay the arrears and the ongoing support. [ 54 ] Pursuant to subsection 41(9) of FRSAEA , unless the contrary is shown, the payor has the onus to rebut the two presumptions that apply at a default hearing namely, that the Director’s statement of arrears is presumed to be accurate for the period in which the order is filed with the Director’s office and that the payor has the ability to pay the arrears and to make subsequent payments under the support order. [ 55 ] Pursuant to subsection 41(10) that onus requires the payor to provide “valid reasons” for an inability to pay support arrears or subsequent payments. [ 56 ] The court’s broad available remedies when it finds that the payor has failed to pay support without a valid reason are set out in ss. 41(10), which reads as follows: Powers of court

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

a) pay all or part of the arrears by such periodic or lump sum payments as the court considers just, but an order for partial payment does not rescind any unpaid arrears; (

b) discharge the arrears in full by a specified date; (

c) comply with the order to the extent of the payor’s ability to pay; (

d) make a motion to change the support order; (

e) provide security in such form as the court directs for the arrears and subsequent payment; (

f) report periodically to the court, the Director or a person specified in the order; (

g) provide to the court, the Director or a person specified in the order particulars of any future change of address or employment as soon as they occur; (

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

i) on default in any payment ordered under this subsection, be imprisoned continuously or intermittently until the period specified in the order, which shall not be more than 180 days, has expired, or until the payment is made, whichever is sooner.

[ 57 ] As the Ontario Court of Appeal stated in Fischer v. Ontario (Director, Family Responsibility Office): [2] Any one of those powers may be exercised by the court unless it is satisfied that the payor is unable for valid reasons to pay the arrears or to make subsequent payments under the order [ 58 ] The court’s power to make a temporary order and to subsequently change it pending the default hearing is found in subsections. 41(14) and

(15) FRSAEA which read as follows Temporary orders 41(14) The court may make a temporary order against the payor, or a person who was made a party to the hearing under subsection (5), that includes any order that may be made under subsection (10) or (12), as the case may be. Power to change order

(15) The court that made an order under subsection (10) or (12) may change the order on motion if there is a material change in the payor’s or other person’s circumstances, as the case may be. 2005, c. 16, s. 24 . [ 59 ] Subsection 41(14) does not set out the test the court is to apply when making a temporary default order. [ 60 ] The case law establishes that it is only evidence arising subsequent to the date of the temporary or final default order that is relevant to determining whether a material change in circumstances has occurred. [3] [ 61 ] The Supreme Court of Canada in Willick v.

Willick [4] describes a material change of circumstances as a “change, such that, if known at the time, would likely have resulted in different terms.” The court noted that “ if the matter which is relied upon as constituting a change was known at the relevant time it cannot be relied on as the basis for a variation”. [ 62 ] Also, in Grey v.

Rizzi [5] the Ontario Court od Appeal noted that a material change of circumstances must be a change with some degree of continuity and “not merely a temporary set of circumstances.” [ 63 ] I adopt the reasoning of Justice Victoria Starr in the case of Ontario (Director, Family Responsibility Office) v.

Kumar [6] that where a payor seeks a temporary default order below the ongoing amount, the court should apply a higher standard on the basis that “another court has already determined that the level of support is appropriate based on the payor’s ability to pay.” [ 64 ] The court held that the standard should be that the payor, on actual evidence before the court, demonstrate that (1) he has a strong prima facie case on its merits; (2) is acting in good faith; and (3) has filed a sworn financial statement to demonstrate his current financial circumstances.

Evidence of the payor [ 65 ] The payor in his affidavit attempts to relitigate the basis for the final default order made by Justice Czutrin.

He deposes that he never earned the $150,000 that was imputed to him and that he is a skilled labourer with only the equivalent of a grade 6 education. [ 66 ] However, he does not explain how he could then have accumulated assets namely, the matrimonial home and the vacation property, that he deposes had a net worth of over $1,000,000 or how he had $195,000 in his business account at the date of separation. [ 67 ] The payer further deposes that the court proceedings proceeded without notice to him and the recipient and her counsel had to “guess” at his income as they did not have his financial disclosure.

He does not refer to the fact that there was a court order for such disclosure that he failed to comply with and as a result his pleadings were struck. [ 68 ] With respect to his reduced income the payer offers several contradictory reasons. He deposes that he was put on modified duties even before the pandemic due to his health and that he is no longer working as a drywaller. [ 69 ] But he also deposes that there has been a significant reduction in his income due to the Covid-19 pandemic and due to his health condition.

He also deposes that his hours of work have been reduced due to the shortage of available work. [ 70 ] He further deposes that he has tried to find other employment to supplement his income, however, there has been a shortage of work in the construction industry. [ 71 ] The payer deposes that in the years since 2008 [7] he has earned the following income: YEAR INCOME 2008 $20,500 2009 $1,369 2010 $33,676 2011 $39,434 2012 $20,414 2013 $25,277 2014 $27,407 2015 $13,921 2016 $14,982

2017 $26,679 2018 $19,677 2019 $8,190 [ 72 ] With respect to the payor’s income for 2020, he deposes that he only worked 148 hours and earned a total of only $3,475.50 of which $1,423.51 has been garnisheed. [ 73 ] In support of his reduced income, the payor relies on a letter from his employer Omnia Services that is undated but signed by F. Cardoso.

The letter confirms that the payor has been employed with that company since April 2017 as “a delivery man (a modified job) and cleaner.” [ 74 ] The letter further states that the payor has “a medical condition (I believe depression) and doesn’t have the ability to work many hours.” The letter further states that the payer’s hours were decreased and modified to a cleaner because of his medical condition, for the past months he has only worked an average of 15 hours per week. [ 75 ] Based on the payor’s various statements about his reduced income that are often contradictory and without any corroboration, I have serious concerns about the payor’s credibility. [ 76 ] With respect to the payor’s inability to work due to his medical condition, the payer deposes that as he was unable to keep up with the support payments he was arrested and jailed from December 19 to December 27, 2019.

He deposes that he had never been to jail before and this was “an extremely traumatizing experienced for him.” [ 77 ] He relies on medical reports from his Dr. Salama dated September 14, 2020 and December 14, 2020. The payor also deposes that he was diagnosed with a dilated heart which causes him shortness of breath. [ 78 ] In the letter of September 14, 2020 Dr. Salama confirms that he has been the payor’s family doctor since January 2020 and that the payor is “under stress and slowly overcoming a personal ordeal.” Dr.

Salama recommends that the payor’s hours of employment be reduced to 24-26 hours per week. [ 79 ] In the letter of December 14, 2020, Dr. Salama states that he first saw the payor on January 21, 2020 and he complained of severe anxiety after he was released from prison. A sedative was prescribed. Subsequently, Dr. Salama diagnosed the payor with Post Traumatic Stress Disorder with co-occurring depressive and anxiety disorders. Dr. Salama states that the payor’s “traumatic event has been extreme” and that he recommended modified hours of employment 24-26 hours per week. [ 80 ] Dr.

Salama’s letter also states that he has continued to treat the payor and by July and August 2020, he noted that the payor had continued to improve. He continued to meet with the payor about once a month and has continued to prescribe medications, provide cognitive behavioural therapy and supportive therapy.

Analysis [ 81 ] The payor does not dispute the accuracy of FRO’s Statement of Arrears that as of February 16, 2021 he owes $384,787.13. [ 82 ] Therefore, the only issue to be determined on this motion is whether the payor has met the high burden of proof upon him that there has been a material change of circumstances since the temporary default order was made on July 10, 2019. [ 83 ] In this case, the payor is proposing not only that he pay less than the ongoing spousal support order of $5,000 per month but that he pay no support. [ 84 ] Based on the letter from Omnia Services, the payor has been on reduced hours since 2017.

The payor in his affidavit confirms that his hours were reduced before the pandemic. [ 85 ] According to the payor’s evidence, he only earned $19,677 in 2018 and $8,190 in 2019. His income reduction from the $150,000 that was imputed to him in 2011 has been ongoing and pre-dated the temporary default order. [ 86 ] Even if it could be argued that his income has declined even more after the July 10, 2019 temporary default order, the payor has not provided full and frank disclosure of his financial circumstances. [ 87 ] The payor alleges that he only made $8,190 in 2019.

His financial statement indicates that he is currently only earning $419.51 a month or $5,03412 yearly. He offers no explanation as to how he is meeting his yearly expenses of $38,122.44. [ 88 ] The payor does not explain how he was able to obtain $10,000 on November 7, 2019 to pay the cost order made against him in the Superior Court of Justice.

He does not explain why the money order for this amount is drawn from the Toronto-Dominion Bank when he claims his only bank account is with the Scotiabank. [ 89 ] The payor alleges that he is being supported by loans from family and friends and that he has had to borrow $90,000. [ 90 ] The payor’s financial statement indicates a loan from Viktor Lampert in the amount of $40,000.

As proof of this loan, he attaches a copy of a Promissory Note dated April 6, 2015 between Carla Leocadio Teixeira (who is his current wife) and Viktor Lampert for $40,000 with monthly payments of $189 and the balance being due on April 5, 2020. The loan is secured by a 2015 BMW.

There is no explanation as to the relationship between the parties, what happened to the BMW that is not listed as an asset on his financial statement or what happened on the due date as the loan is shown as still outstanding on the payor’s financial statement. [ 91 ] The payor’ s financial statement also indicates a loan from Fernando Cardoso of $10,000 to the payor and his wife dated March 30, 2019. The monthly interest of $47.00 per month is payable and the entire amount comes due by March 30, 2024. This is the same

person who signed the payor’s employment letter. [ 92 ] The payor’s financial statement also indicates a further loan from Mr. Cardoso’s company Omnia Contracting for $37,675.00. There is no documentation to substantiate this loan and no information as to the date of the loan. [ 93 ] The payor attached to his affidavit a list of loans to him of $500 on a fairly regular basis in 2019 and 2020 from Omnia Contracting that total $9,500.00. It is not clear of this is in addition to or part of the alleged $37,675 that the company loaned the payor. [ 94 ] There is no explanation as to why Mr.

Cardoso either personally or through his company would loan a part-time employee $47,675 or if the further $9,500 is included a total of $ 57,175. [ 95 ] Based on the lack of any plausible explanation for these loans on this motion, I draw the common sense conclusion that there is not an arm’s length relationship between the payor and Mr. Cardoso. [ 96 ] Further, I do not find credible that the payor is only able to work 15 hours either due to COVID-19 and a shortage of work. The letter from Mr.

Cardoso does not mention any shortage of work. [ 97 ] The payor attached to his affidavit a statement of his income that shows he was laid off on March 9, 2019 and rehired June 15, 2019. He does not provide any proof that he applied for any government relief through the CERB program which he would have been entitled to if he was laid off due to a shortage of work due to the pandemic. [ 98 ] The payor’s own doctor states that he could work 24-26 hours a week and yet he only worked 15 hours or less.

The payor deposes that he looked for other work but provides no proof. [ 99 ] With respect to the payor’s position that there has been a material change of circumstances due to his medical condition, based on his own affidavit and the letter from his employer, as of April 2017, the payor has been unable to work as a drywaller and on reduce hours as he was depressed. [ 100 ] There is no evidence of the payor’s mental health condition prior to the temporary default order as Dr.

Salama only became his doctor in January 2020. [ 101 ] However, even if the payor’s current mental health issues are the basis of a material change of circumstances, I find that the payor’s current diagnosis of post traumatic stress disorder is a result of his own misconduct. [ 102 ] Based on the payor’s own affidavit, his present diagnosis appears to be directly related to the fact that he spent 9 days in jail and his stress and anxiety relate to his financial circumstances.

In other words, he was incarcerated because he failed to meet his court ordered support obligations and his lack of due diligence in complying with court ordered financial disclosure. The payor allowed the support arrears to accumulate until FRO began enforcement proceedings.

He now claims that he has been traumatized by the fact he was incarcerated and he is depressed and under stress as he tries to deal with his current financial circumstances court proceedings. [ 103 ] The payor alleges that he also has a heart condition that impacts his ability to work but his doctor does not mention any incapacity due to the payor’s heart disease. [ 104 ] There is no specific prognosis in the letter of Dr. Salama or an indication as to when the payor can return to full-time employment. The letter indicates that the payor’s condition is improving.

There is no indication that this is a permanent condition. Further, the payor’s mental health condition was not deemed serious enough for a referral to a psychiatrist. [ 105 ] Given my findings that the payor lacks credibility, I also consider that all of the information provided to his doctor are based on self-reporting. [ 106 ] I find that the payor’s mental health issues are not a valid basis to suspend or terminate his support obligation. [ 107 ] In

summary I find that the payor has not met the onus on him to prove there has been a material change of circumstances since the temporary default order of July 10, 2019. [ 108 ] Based on the payor’s lack of credibility, I cannot conclude that he has a prima facie case on the merits. I note that the payor’s temporary motion to vary the outstanding spousal support order was also dismissed by Justice Hood based on much of the same evidence that is before me. There are credibility issues that can only be resolved at the trial of the Motion to Change.

I further find that the payor does not come to court with clean hands as he has never met his spousal support obligation and that he has not provided full and frank financial disclosure. [ 109 ] The enforcement of this temporary default order, that has been before this court since March 2016, is in the discretion of FRO. The default hearing has been adjourned numerous times so that the payor could pursue a Motion to Change in the Superior Court of Justice. However, as of this date there is still no date set for a trial.

The payor can only vary the present spousal support order by moving forward with his Motion to Change. [ 110 ] The payors’ motion to vary the temporary default order of July 10, 2019 is dismissed. To be clear, the payor is under an obligation to continue to pay $5,000 per month in spousal support or in default 5 days in jail. Order [ 111 ] There will be an Order as follows: 1. The motion by the Respondent, Rui Felizardo to vary the temporary default order of July 10, 2019 is dismissed.

[ 112 ] If the Director is pursuing costs and if counsel cannot resolve the issues of costs, counsel for the Director shall submit written costs submissions not to exceed 3 pages with a Bill of Costs and any Offer to Settle attached within 30 days. Counsel for the Respondent shall submit her written response not to exceed 3 pages with any Offer to Settle and a Bill of Costs, if desired, within 30 days of receipt of the Applicant’s costs submissions. All submissions to be filed with the trial coordinator. If counsel refer to case law, copies of the case law should not be submitted. Released: March 2, 2021 Signed: Justice Roselyn Zisman