Motion to Change Support: Litigation in the Face of Outstanding Cost Awards
Diciaula v Mastrogiacomo, 2019 ONSC 2823
In Diciaula v Mastrogiacomo, a father brought forward a motion to change his support obligations based on his actual—rather than imputed—income. The question was whether the court should allow Mr. Mastrogiacomo to bring forward a motion despite outstanding cost awards and Family Responsibility Office (FRO) arrears. Typically, a motion to change cannot be brought unless previous orders have been satisfied. The judge balanced competing objectives to reach a just result.
Mr. Mastrogiacomo and Ms. Diciaula separated in 2001. Since 2004, Mr. Mastrogiacomo paid child and spousal support based on an imputed income of $90,000. However, his actual income was never greater than $55,199. Furthermore, his outstanding court costs total $50,000 and his arrears total $138,000.
For 15 years, Mr. Mastrogiacomo paid support on an imputed income that was double his actual income. Mr. Mastrogiacomo has brought a motion to deal with his arrears of support and his ongoing payments.
Ms. Diciaula has brought a motion to dismiss or strike Mr. Mastrogiacomo’s motion. She argues that Mr. Mastrogiacomo displays an indisputable disregard for court orders and therefore, he should not be allowed to proceed as he has not paid his costs and has arrears of support. Furthermore, she argues that Mr. Mastrogiacomo can satisfy the outstanding debt but has chosen not to do so.
The judge considered competing interests when deciding whether to allow Mr. Mastrogiacomo’s motion to change. Ultimately, the question became whether a dismissal would lead to an unfair outcome.
The court allowed Mr. Mastrogiacomo to bring forward a motion to change.
According to Family Law Rules 1(8) through (8.4), non-compliance with court orders is unacceptable and worthy of sanction. The court referred to Levely v Levely which states that a litigant cannot create financial detriment to the other party by leaving debts unpaid or prolonging court processes. Furthermore, the court referred to Peerenboom v Peerenboom. This case made it clear that impecuniosity is not a defence to outstanding court orders. Normally, these principles ensure procedural fairness.
Nonetheless, Justice Kristjanson goes on to explain that procedural fairness is not the only objective of the Family Law Rules. Substantive justice must also be considered. In other words, a judge must strive to achieve a fair outcome for all involved parties.
In this case, preventing the motion would be unfair. Mr. Mastrogiacomo has never made the level of income imputed to him. In fact, he has overpaid child support by approximately $85,000. In addition, he has paid spousal support for 16 years based on a 3-year marriage. Furthermore, he is unable to borrow money and he does not own any assets. If Mr. Mastrogiacomo was denied a motion to change, he would continue to pay child support at a high rate and never be able to dispose of his debt. In that case, justice would not be served.
The court also considered the objective of the Child Support Guidelines. Although the guidelines ensure that an adequate amount of money is provided to a child, the calculations must be based on a fair value. This value must be reflective of the parent’s financial capabilities. In this case, the support calculation was not reflective of Mr. Mastrogiacomo’s ability to pay. The judge recognized and emphasised this fact.
Ultimately, the court allowed the motion to change. This would enable Mr. Mastrogiacomo to lower his support obligations and begin to pay his outstanding costs. Although there were competing considerations, the judge ultimately ruled in favour of substantive justice.
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