Family Law: Fighting a System We Can't Get Out Of
Two different Ontario Superior Court judges have found that Rob. R., an Oshawa-area father of two, is in effect the proverbial stone from which no more blood can be drawn.
Judge Paul Nicholson, in a Nov. 28, 2016 decision, wrote that Rob is “currently suffering dire financial circumstances” and “appears to have been suffering financially for some time.”
Rob had been seeking “a motion to change” a punishing original support order that requires him to pay twice his after-tax monthly income. His ex promptly brought a motion for summary judgment, which requires the judge to find there’s no real issue for trial and which can be dismissed from the bench.
Nicholson was hearing the summary judgment only and ruled against the ex, finding that Rob had shown there was a real issue that required a trial.
Like Nicholson, Ontario Superior Court Judge Jane Ferguson, who in 2013 heard another summary judgment motion the ex filed in response to another “motion to change” the original order, also found “there is a genuine issue for trial” because Rob’s circumstances had changed, and with it, his ability to pay such a whopping amount.
Nonetheless, the judge ordered him to post $20,000 as security for costs to have it move forward.
Somehow, he and his second wife, Donna, paid it, and in 2015 Rob found himself in Ontario Superior Court Judge Clifford Nelson’s courtroom to argue the motion. That judge, too, found that “the applicant earns about $65,000 a year” but that he’d not satisfied the court his circumstances had really changed.
At this point, there wasn’t a bank in the world that would have loaned Rob money to start a new company, he told Nelson, and the judge agreed that “made some sense.”
Helpfully, the judge suggested he negotiate a settlement with his ex, marshal more evidence of his financial state or propose a payment plan to show the court he couldn’t pay.
Nelson dismissed the motion.
Mercifully, when Rob last year brought the new motion to change the order, Nicholson refused to order security for costs.
But Rob’s former wife promptly appealed Nicholson’s decision, so it remains in limbo, as do he and Donna.
Thus this 51-year-old man, who now earns about $65,000 a year (or about $5,400 a month before taxes) working on commission for a flooring company, continues to labour under the punitive family court decision from 2012 which ordered him to pay $6,866 a month in child and spousal support.
His former wife, a teacher with the Toronto District School Board, has been back working full-time for two years; she earns an estimated $100,000 in pay and benefits.
Yet every month, Rob is supposed to pay her $4,000 in spousal support and another $2,866 in child support — about $1,400 more a month than he earns.
Inexorably, as surely as the sun rises in the east, he falls further and further behind, a typical downward descent for a man saddled with an unrealistic support order.
He now owes more than $500,000 in arrears, despite paying what he can monthly and occasional lump sums.
Because he’s in arrears, with the Ontario government’s enforcement arm, the Family Responsibility Office garnishing his wages and ever-threatening to take more drastic steps — Rob once had his passport seized, and has been warned he may lose his driver’s licence — he can’t even claim the support payments as an income-tax deduction.
He and Donna have paid, over nine years of litigation, more than $600,000 to a succession of lawyers, as well as $18,000 for a child-custody assessment (the assessor eventually recommended the joint custody they always have had) and $24,000 for an evaluation of his former business.
The original support award was issued June 11, 2012, by the now-retired Ontario Superior Court Judge Peter Magda, who decided, over the course of a five-day trial, that Rob had been intentionally “under-employed” and refused to accept that he was “doing anything different than he did” when he co-owned the flooring company.
“I find that the applicant father made the conscious choice to earn so much less that he must bear the consequences,” Magda said.
It’s worth noting that Rob, like more than half of those who appear in the family courts, was self-represented at trial. It is an enormous handicap, and it pains him now to realize how ill-equipped he was and how thick-witted he probably sounded.
The parents have always shared custody of their children, now 17 and 12.
Rob and Donna have sold everything both of them owned just to survive — his 50-per-cent share of the flooring business, his home, their pensions and even her beloved cottage (location of a memorial to her late sister).
They now share a house with his parents as paying tenants (and half the time with Rob’s kids) and have a basement unit with a paying tenant.
They run estate and garage sales — the former dining room and porch overflow with goods and furniture — for cash to pay household bills.
It’s a stroke of particularly cruel irony that when Donna and her first husband divorced many years ago — they were young, with two children — Donna’s lawyer urged her repeatedly to demand spousal support.
“I was aghast,” she told Postmedia. “Seriously? We were 30 years old. If I did ‘take half his pension,’ how would he ever survive?”
She actually had to sign off on a document waiving spousal support and pension splitting.
Now, almost a decade later, she says, she’s part of “the other layer of victims in the broken family law system.
“We are fighting a system we can’t get out of. The cogs of the wheel keep turning and we are the hockey cards jammed between the spokes.”