Shocker!  My ex showed up at court.  He has never attended a hearing for any court application that I have had to file due to his breach of contract.  There were two hearings in 2016 and this was the 4th hearing for the application that I filed in December 2018.  He never attended any of them. When I saw him, my heart started beating out of my chest.  I thought, “What tricks are he and his lawyer up to this time?”

For about 2 1/2 hours he had to sit and listen to how his behaviour was “egregious” and “inappropriate”.  After our last hearing in October 2019, the judge ordered him to pay the child support amount he owed after filing his 2018 taxes. He did not comply.   He never did provide an accounting of what happened to the RESP money for our children.  He never provided any banking information about his rental property, just receipts showing maintenance that was required on the property.  He tried to show losses but failed to provide an accounting for any rental income. He listed the value of his share of the rental property as $40,000 yet he conveniently sold it to a business partner, the day after our January 2019 hearing, for just $4,500.  He also failed to provide documentation surrounding other income he received during his employment.

His lawyer had no submissions.  His lawyer didn’t have much of a defense for my ex’s behaviour except to say that he could have done better with his accounting and that he knew he owed me support payments and had no problem with my lawyer’s numbers.  Yet, he chose not to pay the arrears.  He could have made a “Without Prejudice” payment as far back as December 2018 when he acknowledged his income increased significantly.

Instead, his lawyer tried to discredit my character by saying that my 2019 tax return failed to show all of the support that I received in 2019.  My ex didn’t even show up to court with a completed 2019 tax return (despite the reason we are at court is that he failed to exchange tax information with me, as per our agreement,  for 3 years, now 4 years, knowing his income increased every year) and yet they are picking apart mine, an area that does not even affect anything that my ex owes?

I could see my lawyer’s frustration and she explained to my ex’s lawyer and the judge that I have no idea what the actual support amount should be because my ex failed to provide the information for it to be calculated. The judge agreed and indicated that it is between me and my accountant and is irrelevant.

At the time I filed my taxes, I had no idea what the support amounts were as my ex hadn’t completed a tax return for 2016, 2017 and 2018.  The judge was not able to rule on spousal support owing until my ex provided the accounting he had requested which he did not.  The judge ordered my ex increase support payments to me by paying $8000/month until spousal support could be calculated.  My ex couldn’t even manage to obey that order for an entire year and arbitrarily decided to reduce the payment by $800/month just in time for Xmas,  I filed my taxes with a support amount as per our last court order. If he is ordered to pay more for subsequent years then there is a specific CRA form my ex is required to complete. I have to submit that and have my taxes recalculated for all of the years so that I am not unfairly penalized in the tax year I receive an arrears lump sum amount.

The judge mentioned three ways he could award me and penalize my ex for his conduct.  He mentioned applying interest to the outstanding support payment.  He mentioned not allowing my ex to receive the tax deduction for spousal support and not requiring me to have to claim the lump sum spousal support figure as taxable income.  He also mentioned my ex having to pay my legal expenses.

Just before the lunch break, the judge did ask us to try to settle the matter because he said that he did not believe the court could grant me the justice I probably deserved.  I learned afterwards that it was unlikely that I would be awarded all three things discussed because the judge would not want to leave it open for my ex to appeal.  If it was deemed to be too punitive towards my ex, he may have a case.

My ex offered to pay the full amount of arrears for spousal and child support for our younger daughter only–$125,782 for spousal and $4016 for our daughter and special expenses of $1716.  (The judge had already ordered him to pay the outstanding child support for our younger daughter in the order received in July 2019, which was about $17,000 and he had been paying me around $5000/month more for  the 12 months after our first appearance for the December 2018 court application and then $4200/month more for the last 6 months).  If he had not made any increases, and he only did because I filed the court application, arrears would have been significantly higher. He also agreed to pay $23,486 towards my costs.

Having him acknowledge he owed me costs was important and is reflected in the order so if we have to go back to court again it shows that my ex agreed his conduct was improper.

My lawyer felt that I would receive more if I left it with the judge but last time it took 6 months for a decision and it has never been my intention to punish my ex, no matter how deserving.  Practicing mercy is good for me and even though I thought it might soften his heart and that he might show some humility and appreciation, his actions following this have shown there has been no change in his attitude.  He is digging his heels in further and it is highly likely we will be back in court again.