



COURT
    OF APPEAL FOR ONTARIO

CITATION: Gauthier v. Gauthier, 2019 ONCA
    722

DATE: 20190917

DOCKET: C66750

Hoy A.C.J.O, Nordheimer and
    Jamal JJ.A.

BETWEEN

Jennifer
    Dawn Gauthier

Applicant (Respondent)

and

Michel
    Omer Gauthier

Respondent (Appellant)

Elliot Vine and Jordan Welsh, for the
    appellant

Jennifer Judge (Gauthier), acting in
    person

Heard: September 11, 2019

On appeal from the order of Justice Michael
    R. Gibson of the Superior Court of Justice, dated March 5, 2019.

REASONS FOR DECISION

[1]

In 2010, the appellant was ordered to pay child
    support to the respondent. On August 4, 2016, Barnes J. of the Superior Court
    of Justice dismissed the appellants motion to vary the child support order and
    ordered that the appellant not bring any further motions without leave of that court.
    On February 7, 2019, the appellant brought a motion for leave to proceed with a
    motion to change the 2010 order for child support and for leave to proceed with
    a motion to reduce a 2012 order for security for costs. His motion was
    dismissed in both respects. He appeals that dismissal. For the following
    reasons, we allow the appeal.

[2]

While the motion judge found that the appellant
    had not persuaded him that there had been a sufficient
prima facie
change in his income, the motion judge failed to explain why he was not so
    persuaded in light of the financial information provided by the appellant.
    Similarly, the motion judge said that he was not persuaded that the factors
    that led to the order for security for costs had diminished or that the order
    was not just. Again, the motion judge failed to explain why he was not so
    persuaded. In the context of the record before the motion judge, we are unable
    to determine how he arrived at these conclusions. Consequently, the motion
    judges reasons do not allow for meaningful appellate review and his
    conclusions are not entitled to deference.

[3]

The 2010 order for child support was based on
    the appellant having an annual income of $123,000. The record that was before
    the motion judge indicates that since that order was made, certain events have
    taken place, including:

1.

In 2016, in a separate proceeding, child support
    was ordered for the child of the appellants second family based on the
    appellant having an income in 2013 of $94,203.76 per annum;

2.

The appellant declared personal bankruptcy in
    2016;

3.

A notice of assessment and a notice of
    reassessment issued in respect of the 2015 and 2016 tax years indicate that the
    appellants income for those years was $101,553 and $55,077, respectively;

4.

Based on an unaudited financial statement and T4
    and T5 statements, the appellants income (salary plus dividends) appears as $58,904
    in 2017 and $56,588 in 2018.

[4]

The above events are sufficient to warrant judicial
    consideration of whether the child support payments, ordered in 2010, ought to
    be reduced. On the motion to change itself, however, the appellant would, at a
    minimum, have to produce notices of assessment and reassessment for 2017 and
    2018 (and not just unaudited financial statements) to have any chance of
    success.

[5]

The appellant also contends that certain
    expenses associated with the children when they were younger (e.g. daycare) have
    been eliminated. That said, we appreciate that other expenses may have
    increased so as to reduce or even eliminate any net change on the expense side
    of the ledger. Either way, it is clear that the circumstances are not exactly
    as they were when the original order was made and that the appellant should at
    least have the opportunity to make his case for a change.

[6]

In addition, the uncontradicted evidence of the
    appellant is that the existing security for costs order, that requires him to
    post $59,500 before he can proceed with a motion to change, is an
    insurmountable obstacle to his ability to have the child support order
    reviewed.

[7]

We appreciate, and the appellant himself admits,
    that his conduct since 2010 has been poor. It is undisputed that he has
    accumulated considerable arrears of child support. For a number of years, the
    appellant made no child support payments at all. However, the evidence also shows
    that since enforcement proceedings were taken by the Family Responsibility
    Office, including a period of incarceration ending in 2018, the appellant has
    been making regular child support payments. While these payments do not match
    his obligations, he has produced evidence consistent with his position that he
    is paying as much as his current financial situation will allow.

[8]

Orders for security for costs are a blunt
    instrument. They are not intended to act as a roadblock to genuine claims:
Izyuk
    v. Bilousov
, 2015 ONSC 3684, 62 R.F.L. (7th) 131, at para. 37. They should
    be used sparingly and carefully because they may well have the effect of barring
    a party from access to the court process for a proper review of existing orders
     something, for example, to which a party is entitled respecting child support
    orders if there has been a change in circumstances:
Family Law Act
,
    R.S.O. 1990, c. F.3, s. 37(2.1). Without commenting on whether the security for
    costs order was appropriate when it was made, there is now enough evidence to make
    a
prima facie
case of change in circumstances warranting a review of
    the child support order. The outstanding order for security for costs ought not
    to block that review.

[9]

On that latter point, the appellant,
    appropriately, does not seek a removal of the order for security for costs.
    Rather, he seeks a reduction in the amount of security to $10,000, an amount
    that he says he can manage to borrow, and that will still operate to provide
    some measure of protection to the respondent.

[10]

In all the circumstances, we allow the appeal.
    We grant leave to the appellant to proceed with his motion to reduce the order
    for security for costs and we reduce the security for costs order to $10,000. If
    the appellant posts that security, the appellant will then be entitled to bring
    a motion for a change to the child support order but only with respect to that
    order. No other issues are to be raised by the appellant.

[11]

The appellant did not seek costs of the appeal
    and no costs are ordered.

Alexandra Hoy A.C.J.O.

I.V.B. Nordheimer J.A.



M. Jamal
    J.A.



