CITATION: Clarke v. Lambert , 2020 ONCJ 119 DATE: February 19, 2020 COURT FILE No.: FO-19-152-0000 ONTARIO COURT OF JUSTICE BETWEEN: MARSHA CLARKE Applicant — AND — COLLIS LAMBERT Respondent Before Justice K.A . Baker Heard on December 13 & 24, 2019 and February 12, 2020 Reasons for Judgment released on February 19, 2020 Marsha Clarke ............................................................................................................... in Person M. Tubie ........................................................................................

Counsel for the Respondent BAKER, J. : [ 1 ] This is my judgment on the focused hearing of the Motion to Change brought by the Respondent, Collis Lambert. The Respondent seeks an adjustment, including retroactive adjustment, to child support, as well as rescission of arrears. The Applicant, responding party to the motion, disputes the claims and seeks the dismissal of the Motion to Change. Background and Precis of Evidence: [ 2 ] This matter was previously scheduled to be heard on November 25, 2019.

Orders concerning the hearing procedure had been made on August 22, 2019, when the matter was first scheduled for hearing. This included a requirement that the Respondent file a Trial Record. The Respondent had not discharged his obligation to file a Trial Record as of the first hearing date and the matter was accordingly adjourned to December 13, 2019 for hearing, pre-emptory on both parties. [ 3 ] The Respondent had filed a Trial Record by that point, albeit one that was noncompliant with Rule 23 of the Family Law Rules.

The Trial Record accordingly was not marked as an Exhibit and provided little utility in the matter. [ 4 ] The hearing did commence on the scheduled date of December 13, 2019. As it did not complete within the anticipated time frame, the matter was adjourned to December 24, 2019 for continuation of hearing, scheduled for the entire day. [ 5 ] On December 24, 2019, neither the Respondent nor his counsel appeared, and the matter was further adjourned, with hearing ultimately resuming on February 12, 2020. [ 6 ] The order under review is that of Nelson, J. dated March 20, 2014.

It grants the Applicant mother custody of one child, being Deja Clarke, born […], 1999. It also requires the Respondent to pay support for two children being the child Deja, as well as the child Shanice Ebanks, born […], 1996. [ 7 ] The Respondent did not participate in the litigation that gave rise to the prior order. He was accordingly noted in default and the matter resolved by way of uncontested hearing. [ 8 ] The support obligation was premised upon an “estimated income” of $130,000 per annum. It is clear from the totality of the matter however, that this income was imputed to the Respondent.

In fact, at paragraph 16 of his Change Information Form, the Respondent acknowledges that the prior Order imputed income, when he references the “imputed amount” (of income) set out in the previous Order. The fact that income was imputed was also conceded by counsel for the Respondent during the hearing. [ 9 ] The Respondent alleges that there has been a material change in circumstances in relation to his income since the time the order

was made due to a kidnapping that took place in 2013, prior to the making of the Order imputing income. He says that as a result of that event, his income earning capacity was adversely affected. [ 10 ] In this regard, the Respondent relies upon the following evidence:

a) His Change Information Form 15A. (Tab 2 to the Trial Record)

b) His Financial Statement sworn May 14, 2019. (Tab 3 to the Trial Record)

c) His Affidavit sworn November 28, 2019 and appended Exhibits (Exhibit #1 to this proceeding). [ 11 ] The Respondent’s Financial Statement at line 3 under ‘Income Source’ asserts that he has a “gross monthly income of $27,000.00”. All of this income is said to derive from self-employment. The Respondent asserts that when his expenses are deducted, his “net monthly income from self-employment is $2,260.00”. His “total annual income is stated $27,000”. [ 12 ] The Financial Statement does not provide any details of the expenses that he says reduce his monthly income to a net figure of $2,260.00.

Neither does the Respondent provide any documentary evidence in this regard. (It should also be noted that in point of fact, a monthly income would give rise to an annual income of $27,120.00.) [ 13 ] The Respondent’s Financial Statement also shows a monthly rental income of $3,000. In his testimony, the Respondent took the position that expenses for maintenance of the property exceed the income generated.

He seemed to take the position that his rental income was irrelevant to the analysis. [ 14 ] The Respondent’s Financial Statement is seriously out of date and the Respondent did not comply with Rule 13(12.2), which required him to serve and file updates to his Financial Statement at least seven days before the trial date. This was particularly problematic as during the hearing, even as late as reply submissions, the Respondent asserted that the amounts contained therein were not correct. [ 15 ] Attached to this Financial Statement are the following documents pertaining to the Respondent, in order of appearance:

a) A 2018 Tax Return showing line 150 income of $99.89

b) A 2017 Tax Return

Summary showing a line 150 income of $12,800.00

c) A single (front) page of the 2016 T1 tax return

d) A 2016 notice of assessment showing nothing under line 150 income and zero under line 236 taxable income. e) 2015 notice of assessment showing a line 150 income of $5,089.

f) A 2014 income tax statement showing no line 150 income

g) A 2013 notice of assessment showing a line 150 income of $8,000

h) The 2017 T1 general return showing a gross income of $12,800.00

i) The 2016 T 1 general showing line 150 income as zero [ 16 ] Attached to the Respondent’s affidavit sworn November 28, 2019 are the following documents:

a) A Business name registration for ‘Pyrex Mov Ent’ issued October 20, 2009.

b) Various police records pertaining to a kidnapping complaint investigated January 16, 2013.

c) A handwritten letter dated November 28, 2019 with an illegible signature

d) A letter from Home Trust confirming a mortgage amount for 3210-25 Capreol Court in Toronto.

e) A front page of a 2015 T1 General tax return

f) A 2016 T1 Tax Return showing a zero income

g) A 2015 Tax Return showing a line 150 income of $5,090.24.

h) A redundant 2017 Tax

Summary

i) A 2018 Tax return showing line 150 income of $99.89. [ 17 ] The Respondent has not produced a notice of assessment for 2018 or proof of income for 2019. He has not complied with his obligations pursuant to Rule 13(3.1) and section 21(1) of the Child Support Guidelines to produce his business financial statements, or a breakdown of all salaries and other expenses. There is no document whatsoever to confirm the Respondent’s assertion that his annual income is currently $27,000, as stated in his Financial Statement.

[ 18 ] Neither has the Respondent served and filed a Certificate of Financial Disclosure as required by Rule 13(5.0.2) or a current statement of arrears from the Family Responsibility Office, as required by Rule 13(5.0.1)(2). (Over the course of the hearing, the Applicant produced and filed a Statement of Arrears to June 7, 2019.) The Law: [ 19 ] Where an existing final child support Order is in place, the Family Law Act provides that the Court may vary that Order, prospectively or retroactively, where a material change has taken place. Section 37 (2.1) provides: Powers of court: Child Support

(2.1) In the case of an Order for support of a child, if the Court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may, (

a) discharge, vary or suspend a term of the order, prospectively or retroactively; (

b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and (

c) make any other order for the support of a child that the Court could make on an application under

section 33. [ 20 ] The starting point for any Motion to Change support is that the party seeking the change must establish that some important facts or circumstances have changed since the date the order was made. A ‘material change in circumstances’ must be established. This generally entails some new facts or circumstances, which if known at the time would likely have resulted in different terms in the order. [ 21 ] The procedure to be undertaken in Motions to Change was comprehensively set out in the decision of Pazaratz, J. of the Superior Court of Justice in Trang v.

Trang 2013 ONSC 1980 , where the court stated : “The analysis can be summarized thusly: a. What was the payor earning then? b. What is the payor earning now? c. When did the payor’s income change and why? [ 22 ] Answering the first question, what was the payor earning then, requires a fundamental determination:

a) Was the support order based upon the court accepting the payor’s ‘declared’ income? Or

b) Was the support order based upon the court ‘imputing’ income to the payor? [ 23 ] If the original order was based upon imputed income, a more comprehensive analysis is required. The court must consider: a. Why did income have to be imputed in the first instance? Have those circumstances changed? Is it still appropriate or necessary to impute income to achieve a fair result? b. How exactly did the court quantify the imputed income? What were the calculations and are they still applicable? [ 24 ] Where a court imputes income, that is a determination of fact. It is not an estimate. It’s not a guess.

It is not a provisional number awaiting better disclosure or further review. It’s a determination that the court had to calculate a number because it didn’t feel it was appropriate to rely on – or wait for – representations from the payor. [ 25 ] 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 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 not appropriate.” [ 26 ] As noted by Pazaratz, J.: “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 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… If an aggrieved party feels income was wrongly imputed, they can take timely steps to correct the original determination. Theycan appeal. They can bring a motion to set aside the order based on mistake or misrepresentation.

But if a payor proceeds by way of Motion to Change, they must face the presumption that the original order was correct – and theoriginal imputation of income was correct. If they want to rely on their declared income, they must establish why this time theirrepresentations should be accepted by the court.” [27] There is also a duty on a family law litigant to provide full and frank disclosure of their actual financial situation. As noted byJones, J. in Boneva v. Boneva (No.2), 2005 ONCJ 176 , the duty to provide full and frank disclosure has become a touchstone ofthe family law regime.

This obligation was again highlighted by Madsen, J. in Smith v. Davies, 2018 ONSC 920, whocommented, “Full, frank, and timely disclosure of the basis for the request for a reduction in child support is an importantconsideration.” [28] The Ontario Court of Appeal set out the applicable considerations where a party advances a claim for retroactive adjustment ofsupport in Gray v. Rizzi, 2016 ONCA 152 . [29] In such a case the following factors must guide the Court: 1. The nature of the obligation for support, whether contractual, statutory, or judicial; 2. The ongoing needs of the support recipient and the 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 in particular, his ability to make payments towards the outstanding arrears; 5. The conduct of the payor, including whether he has made voluntary payments, whether he cooperated with support enforcementauthorities, and whether he has complied with obligations and requests for financial disclosure from the support recipient.

Behaviour that indicates willful non-compliance with the terms of the Order or a failure to work cooperatively to address thechild support issue is a factor that militates against even partial rescission of arrears. (my emphasis). 6. Delay on the part of a 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 arrears; 7. Any hardship that may be occasioned by a retroactive order reducing or rescinding arrears, or by an order requiring the payment ofsubstantial arrears.

See Gray, supra, at paragraph 61. [Emphasis added] [30] Where a support recipient advances a claim for continued support for a child over the age of eighteen years, it is her onus todemonstrate that the child remains a dependent. This requires showing that the child is in a full-time program of education (orequivalent given the child’s capabilities) or that the child is otherwise unable to support themselves.

Analysis: Issue #1: Has there been a material change in circumstance such that income should no longer be imputed to the Respondent inthe amount previously set by the court? [31] At the time the previous order was made, the Respondent was found to be earning $130,000 per annum. The previous Ordermaking that finding is presumed to be correct. It is not available to the Respondent to argue that he has never earned that much moneyand that the order was wrong. As noted in Trang, that determination is a finding of fact.

It is not a guess, an estimate or a provisionalnumber awaiting confirmation. [32] Income was imputed to the Respondent. It was not a situation where the court accepted the payor’s ‘declared’ income. [33] Unfortunately, the Respondent has not chosen to adduce any evidence about how the court quantified the income. [34] Why income was imputed to the Respondent is implied by the face of the Order. The Respondent was noted in default ofpleadings and the matter proceeded on an uncontested basis.

The clear implication is that in the prior proceeding, the Respondent failedto serve and file the required materials including proper financial disclosure. Accordingly, income was imputed in accordance withsection 19(1)(

f) of the Federal Child Support Guidelines. [35] The Respondent comes before the court today, on this Motion to Change, again having failed to provide full and completeincome information whilst he is under a legal duty to do so. What information he has provided is confusing and internally incoherent. [36] The Respondent has not provided any corroborating evidence of his current income. He asks the court to just accept his baldassertions about the amount of his income. [37] He expects the court to do so despite his flagrant disregard of his obligations under the Rules of the Family Court.

He expectsthe court to do so despite the complete absence of any confirmatory documentation of either his gross business income or his expenses.

[ 38 ] He expects the court to accept his assertion of an annual income of $27,000 despite his sworn evidence set out in his Financial Statement that he is able to spend $60,146.64 per year. He says he is able to maintain this level of expenditures on an income of $27,000 without incurring any debt other than a mortgage and of course, arrears of support. [ 39 ] In his sworn Financial Statement, the Respondent’s net assets are stated as over a million dollars. This figure appears at

part 5 ‘Summary of Assets and Liabilities’ immediately above the Respondent’s signature. The Respondent did not correct that figure in his evidence, at any point in the hearing. In reply submissions, his counsel sought to represent that the asset figure was wrongly stated and that in fact the Respondent’s assets were much less. He said that $1,000,000.00 of the asset base was set out as a life insurance policy and thus did not really constitute an asset. [ 40 ] The figure for value of the life insurance policy appears immediately underneath the words, ‘Cash surrender value’.

It is difficult to reconcile this with the Respondent’s assertion, again in reply submissions, that the value given was actually payout value upon death. [ 41 ] It is also difficult to understand why the Respondent would not have corrected or clarified this point in his evidence . But even were the court to accept that the $1,000,000 cash surrender value was actually payout value, it raises another concern. The fact that the Respondent asserted what he later said were inaccurate figures for his assets suggests a cavalier attitude towards his representations on vital issues.

It is another reason not to accept his bald assertions about his income. [ 42 ] In any case however, even if the asserted insurance policy value is left out of the equation, and by his own uncorroborated figures, and after deducting mortgage debt, the Respondent still has an asset base of at least $130,200.00. [ 43 ] The Respondent has provided contradictory and confusing evidence about his circumstances generally. This makes it difficult to understand his true financial situation. For example, the Respondent asserts that he is not living in his condo at 25 Capreol Court in Toronto and has rented it out.

His Financial Statement reveals no other living expenses such as rent or other mortgage. The

Schedule ‘B’, other income earners in the home is not filled out. The Respondent does not indicate any address on the style of cause of any of his documents. [ 44 ] In his Form 15A Change Information Form, the Respondent refers to himself as a “single father”. Nowhere in his material does the Respondent address his living situation. In cross examination, the Respondent said he was “staying with” a girlfriend. He did not provide an address. Later he said, “I don’t live nowhere”.

When questioned about various mailing addresses, one of which was 25 Carpreol Court, the Respondent said that he had five or more mailing addresses. [ 45 ] It is difficult to understand why the Respondent would use a rented out apartment as a mailing address. [ 46 ] In his testimony during cross examination, the Respondent said he has within the last few months, rented a music studio at a cost of $780.00 per month. This is not reflected on his Financial Statement and the Respondent did not mention it when he was asked and confirmed that the Financial Statement remained accurate.

He says he was able to do this due to contributions by investors. Nowhere has the Respondent disclosed financial contributions by “investors”. At no point over the course of this matter did the Respondent serve and file an updated Financial Statement to reflect what, by his account, are changed circumstances. [ 47 ] The Respondent’s evidence about his income are similarly problematic. The

section of the Financial Statement that says, “Last year my gross income from all sources was _____________ ” has been left entirely blank. [ 48 ] The Tax returns reflect declared income for the years following the making of the order as follows: 2015: $5,089.00; 2016: Zero; 2017: $12,800.00; 2018: $99.89. [ 49 ] The Respondent offers no evidence whatsoever as to how he could have possibly supported himself for these four years on these incomes.

This is particularly confounding given that over that time frame the Respondent has apparently managed to either accumulate or hold on to assets worth either over a million dollars, or $130,000. [ 50 ] These historical income figures also bear no connection to the income the Respondent says he is currently generating. The logical inference is that the Respondent is not candidly and accurately reporting his actual business income to the Canada Revenue Agency. [ 51 ] The Respondent presents himself as having been self-employed as a music producer over the last number of years.

At paragraph 2 of his affidavit he says he has worked as a music producer under the business name of P.M.E. Ontario. He attaches a business name registration from 2009. Strangely, many of the Respondent’s Tax Returns show no self-employment income. The 2018 tax return indicates that the Respondent’s entire income that year of $99.89 was derived from ‘’other employment income’. [ 52 ] The 2017 Tax Return shows gross business income of $12,800.

Both gross and net self-employment income are the same figure. [ 53 ] The 2016 Income Tax return shows no self-employment income. [ 54 ] The 2015 Tax Return shows no self-employment income. The total income of $5,089.00 is reflected at line 121 as interest or other investment income. [ 55 ] It is obvious from the totality of the evidence that the Respondent’s income tax returns, and hence the Notices of Assessment are

not reliable indicators of his actual income. I do not accept that they reflect his income subsequent to the prior Order. [ 56 ] The Respondent did not produce any evidence whatsoever as to his 2019 income, either gross or net. [ 57 ] Other than the tax returns, the only evidence as to the Respondent’s income, either gross or net is his assertion at paragraph 3 of his affidavit that, “Prior to my kidnapping my income was around $50,000 as reflected in my Financial Statement for the year 2012.

But after 2013 my income declined dramatically because of the kidnapping”. [ 58 ] I find that the Respondent’s evidence of his income since the making of the order is insufficient, confusing and unreliable. It lacks any coherence and any credibility whatsoever. [ 59 ] It is also notable that although the Respondent was ordered to produce his application for the condominium mortgage, he did not do so. This document would have indicated what income the Respondent was representing to the mortgagee that he was earning. He did not offer any credible explanation for his failure to do so.

I therefore draw an adverse inference from this breach of the Order. [ 60 ] For these reasons, I am not prepared to accept the Respondent’s evidence about his income subsequent to the making of the Order including current income. The Respondent seems to have structured his affairs and his disclosure in such a way that his current income is unascertainable. His representations about his income cannot be accepted by the court. [ 61 ] Further, in cross examination the Respondent himself acknowledged that there has been no change, let alone a material change to his income since the making of the original order.

This occurred in response to the Applicant’s question, “From 2014, when I took you to court to present what has changed in your financial situation?” The Respondent’s reply was, “Nothing. I am still in the process of building back my company.” [ 62 ] For these reasons, I find the Respondent has not met his onus to demonstrate a material change in circumstances with respect to his income. The court making the final order found that the Respondent was capable of earning an income of $130,000 per annum.

The Respondent has not demonstrated that this has changed. [ 63 ] Aside from that, the Respondent does not come to the court with clean hands. He has not even fulfilled his obligations for the required disclosure, let alone full and frank disclosure. In my view, it would be contrary to public policy, to grant relief with respect to the imputation of income in such circumstances. [ 64 ] Finally, on this point, I will address the respondent’s submission in closing that a different, lower quantum be imputed, specifically that the amount of $50,000 per annum be selected.

The only evidence in support of this amount is, again, the Respondent’s bald assertion in his November 28, 2019 affidavit that, prior to the kidnapping, he was earning “around $50,000.00”. Although the Respondent says that this was an amount reflected in his “Financial Statement for 2012” he does not attach any such document.

It is unclear what document the Respondent is referring to in this regard, as the previous litigation concluded by way of uncontested hearing in March of 20 14 . [ 65 ] In any case, I have already found that the Respondent’s evidence about his income lacks credibility, or indeed, any believability, and I am not prepared to accept his bald assertion on this matter. Issue #2: Are the children still dependents and entitled to support? [ 66 ] Both children are over the age of eighteen years. Deja was born […], 1999 and turned 18 years as of […], 2017. Shanice was born […], 1996 and turned 18 years as of […], 2014.

The Applicant bears the onus of demonstrating that the children remain entitled to support. [ 67 ] The Applicant says that both children continue to attend school and accordingly remain entitled to support. [ 68 ] The Applicant relies on her own affidavit sworn December 5, 2019 and appended Exhibits in this proceeding. Attached to that affidavit are a number of documents, none formally marked as Exhibits. The attachments were also not paginated.

No exception was taken to the Applicant’s request to rely on these documents. [ 69 ] Contained therein is both an original letter and a photocopy addressed to ‘To Whom It May Concern’ and signed by the child Deja Clarke. It indicates that the author “has been going to school” and “plans to attend beauty school soon”. [ 70 ] There is also a document apparently from Grand Erie Board Learning Alternative entitled ‘Educational Assessment’. The date is shown as “Friday Oct. 18”. A further reference to ‘year’ suggests that this relates to a programming undertaken in 2018.

A further appointment date of November 19, 2019 is also shown. [ 71 ] There is also an attached document that would seem to be an attendance record. It indicates that Deja was attending ‘Grand Erie Learning Alternative’ between March 6, 2017 until April 7, 2017 and again between October 12, 2018 and October 12, 2018. [ 72 ] Finally, there is an exchange of email between the Applicant and Ontario e-Learning Consortium dated November 19, 2019 and November 28, 2019. It indicates that Deja is registered for a full year science course.

It indicates however that the course start date and the course end date are both November 19, 2019. [ 73 ] This evidence falls considerably short of establishing that Deja has been in a full-time program of education since turning eighteen years of age. In fact, in cross examination the Applicant conceded that Deja is not currently in school, although she hopes to begin college sometime in the future. [ 74 ] With respect to Shanice, the Applicant relies on a single page document headed, ‘list of courses and grades’. It includes the

caveat that it is not an official transcript. It does however indicate that the information is valid as of September 25, 2019. Only four of the courses are marked as “in progress”. It is not possible to tell from the face of the document when the graded courses were attended and completed. [ 75 ] It should be noted that the Motion to Change claims an order that the Respondent pay child support in the amount of $223.00 for the child Shanice.

This would suggest that at the time he commenced the Motion to Change, on May 14, 2019, he acknowledged that Shanice remained a dependent. [ 76 ] In the course of this trial however, the Respondent challenged the Applicant’s assertion that either child remains a dependent. The only evidence the Applicant adduced was the single page document listing grades and courses. Four courses are marked as ‘in progress’ but there is nothing to confirm that this equates to a full-time program of education. [ 77 ] That document was also stated as valid as of September 25, 2019.

The final ‘installment’ of this hearing took place in February 2020. The Applicant testified that Shanice continues to attend York University, but she did not provide any particulars, including any indication of courses attended and course load. [ 78 ] I therefore find that the Applicant has not met her onus to demonstrate that either child continues to be a dependent and thus entitled to support.

Issue #3: Retroactive adjustment to stop support after the children turned eighteen years [ 79 ] In his Motion to Change, the Respondent does not specifically seek a retroactive adjustment to support, although he does seek rescission of (all) arrears.

In fact, the Motion to Change proposes that support continue, albeit at a considerably reduced figure, for the child Shanice. [ 80 ] Because retroactive support adjustment is not specifically claimed for the child Deja, the pleading does not indicate a requested date for termination. [ 81 ] In closing submissions, the Respondent proposed that support cease for both children as of January 1, 2019.

In reply submissions, the Respondent then invited the court to go back further, to each girl’s eighteenth birthday, and terminate support from that date. [ 82 ] This was an extremely unfair approach by the Respondent towards the unrepresented Applicant.

The Applicant was presented with one position to address, only for the Respondent to change it and seek a much more expansive order in reply. [ 83 ] In any case, turning to the factors regarding retroactive adjustment: [ 84 ] The Respondent explains his delay in commencing this Motion to Change by pointing to his two prior failed efforts to advance the claim in the Brampton Ontario Court of Justice. Mr. Tubie represented the Respondent at both earlier proceedings. These prior court records are revealing. [ 85 ] The Respondent seems to have commenced his first Motion to Change sometime in 2016.

The Applicant attached a disclosure order from the Brampton court to her materials. Although it does not clearly state a date, it does indicate that the documents must be filed by June 1, 2017. Included in the required disclosure were business income and expenses from January 2013 to present, as well as all personal bank records from June 1, 2016 to date. [ 86 ] There is also a handwritten endorsement from a case conference held May 3, 2017 which also requires the production of business records from 2014, 2015 and 2016.

The matter was then adjourned to settlement conference on July 28, 2017 and an hour-and-a-half was set aside. The Motion to Change was dismissed when neither the Respondent nor his counsel attended the settlement conference. [ 87 ] The Respondent then seems to have filed a motion form, without notice to the Applicant, seeking to “reinstate” the dismissed Motion to Change.

In an endorsement dated January 5, 2018, Justice Khemeni declined to make the order and indicated that service of any motion seeking an order setting aside the dismissal would require service, as well as payment by the Respondent of the costs from the earlier dismissal.

Finally, the court instructed that any new motion should also request transfer to the Brantford Ontario Court, because that was the place of residence of the Applicant. [ 88 ] The endorsement also notes that, “If the R/F is serious about proceeding with a Motion to Change, he will ensure that … (costs are paid) and ensure that his Financial Statement and any supporting affidavit explain how he is able to live when his Notice of Assessments show no income”. [ 89 ] What is particularly striking in this recitation is that the Respondent has twice before been ordered to produce his business documents, after commencing a Motion to Change in which he failed to comply with the Rules and the Guidelines.

Even now, some four years after his first Motion to Change, and three years after the disclosure orders, the Respondent remains recalcitrant. [ 90 ] The Respondent has paid no heed to the previous court’s clear direction about the need for meaningful evidence on income. [ 91 ] This background does not show good faith efforts to address the issue in a timely fashion. If anything, it demonstrates a willful, determined and longstanding disregard towards his obligations. [ 92 ] Then there is the issue of the payor’s conduct.

The Respondent is unable to point to any effort whatsoever to work cooperatively to address the child support issue. He did not file a statement of arrears to support his claim for rescission, nor offer any reason for not doing so. [ 93 ] When the self-represented Applicant produced a statement of arrears, it showed remarkably few voluntary payments. There were

no voluntary payments prior to March 27, 2018. Two payments were made on March 27, 2018 and April 4, 2018, respectively, whilst the earlier litigation was ongoing. Only one other voluntary payment was made in 2018. All others were federal diversion. Two payments are indicated in 2019, in May and June of that year. Again, both were made when the litigation was again before the court. [ 94 ] The Respondent does not come to the court with clean hands. He has not even fulfilled his obligations for proper disclosure, let alone full and frank disclosure. The disclosure he has provided has been piecemeal and confusing.

Initially, it even lacked pagination to enable reference during the hearing. A substantial amount of disclosure was not provided until after the second hearing date was set. [ 95 ] The Respondent has allowed substantial arrears to build on his child support obligations. At the same time, he has assets. Income has been imputed to the Respondent in the amount of $130,000 per annum. This is a significant income.

He has been content to leave the burden of supporting these two children on the shoulders of the Applicant in entirety. [ 96 ] In the circumstances, having particular regard to the unreasonable approach the Respondent has taken to this litigation, over a very extended period of time, I decline to make any retroactive adjustment of support. Issue #4: Rescission of Arrears [ 97 ] I have declined to change the order imputing income to the Respondent for reasons previously stated.

Accordingly, a claim to rescind arrears premised on retroactive adjustment to income must fail. [ 98 ] I have declined to order retroactive adjustment of support and accordingly, arrears shall not be rescinded. [ 99 ] For the same reasons, any claim for rescission of arrears based on current inability to pay must fail. This is particularly so given that the Respondent has assets of a value of at least $130,000. [ 100 ] Accordingly, I find as follows: 1. The Respondent has not demonstrated that it is no longer necessary to impute income to him. 2.

The Respondent has not demonstrated a change in circumstances such that the previous imputation of income should be changed. 3. The Respondent has not demonstrated that rescission of arrears is either appropriate or fair. 4. The Applicant has not met her onus to show that the children Deja Clarke and Shanice Ebanks remain dependent and entitled to support. 5. The Respondent is not entitled to a retroactive adjustment of support. [ 101 ] Order therefore to go: 1.

The Respondent’s obligation to pay support for the children Shanice Ebanks, born […], 1996 and Deja Clarke, born […], 1999 shall terminate effective March 1, 2020. 2. The balance of the Respondent’s Motion to Change, including his claim for retroactive adjustment of child support and for rescission of arrears, shall be dismissed. 3. Support Deduction Order to issue. 4. Any party seeking costs may do so by written submission within fourteen days. The submission must include the amount sought and how the amount is calculated.

Responding submissions to be served and filed seven days after service of the original costs submission. Submissions limited to five pages, double spaced. Dated at Brantford, Ontario This 19 th day of February 2020 The Honourable Justice K.A . Baker