DATE: 20050214

DOCKET: C42149

COURT OF APPEAL FOR ONTARIO

RE: STEPHEN SHARPE (Applicant/Respondent) and TRACEY WATERHOUSE (Respondent/Appellant)

BEFORE: Feldman, Simmons and Gillese JJ.A.

COUNSEL: Daniel J. Wyjad For the appellant

No one appearing For the respondent

HEARD: January 31, 2005

On appeal from the order of Justice E. Loukidelis of the Superior Court of Justice dated March 31, 2003.

E N D O R S E M E N T

[1] Prior to the hearing date of this appeal, Mr. Sharpe's request for an adjournment of the appeal was refused. When he did not appear, we directed court staff to telephone him to confirm that he was aware that the appeal was being heard.

[2] Following commencement of default proceedings by the Family Responsibility Office, Mr. Sharpe brought a motion in the Superior Court for an order reducing arrears of child support to reflect payments made to Ms. Waterhouse directly. On November 18, 2002, the issue raised by Mr. Sharpe was set for trial at the March 31, 2003 sittings of the Superior Court, at Bracebridge. Ms. Waterhouse did not attend the trial. She now appeals from the order reducing support arrears to zero.

[3] Although it appears that the proper procedure would have been for the appellant to move under Rule 15(14) of the Family Law Rules and serve the District of Muskoka with that motion in accordance with rule 15(5), we consider that the interests of justice require that the issue of whether any support arrears are owing be returned to the Superior Court for a re-hearing on the merits for the following reasons:

(a) Ms. Waterhouse was not represented by counsel on Mr. Sharpe's motion;

(b) on June 24, 2002, Ms. Waterhouse signed minutes of settlement agreeing that arrears of support owing to her directly be set at zero but that the agreement would not affect the arrears owing to the Ministry [of Community and Social Services];

(c) according to the endorsement of the trial judge, none of Ms. Waterhouse, the Family Responsibility Office, the District of Muskoka, nor the Ministry of Community and Social Services attended the hearing held on March 31, 2003 as parties;

(d) as the result of the trial judge's decision, the District of Muskoka is requiring that Ms. Waterhouse re-pay the sum of $111,047.76 paid to her under the Family Benefits Act, the General Welfare Assistance Act and the Ontario Works Act on the basis that Ms. Waterhouse failed to declare support income while in receipt of assistance;

(e) Ms. Waterhouse has been charged with welfare fraud;

(f) apart from minimal payments itemized in an affidavit filed for the purpose of extending the time to appeal to this court, Ms. Waterhouse denies that she received the direct payments Mr. Sharpe claims that he paid;

(g) Mr. Sharpe has not filed any evidence disputing Ms. Waterhouse's claims: (1) that on July 25, 2002, Mr. Sharpe's lawyer advised Ms. Waterhouse that the matter was out of her (Ms. Waterhouse's) hands and that she should go home; and (2) that Ms. Waterhouse did not have notice of the March 31, 2003 hearing date; and

(h) even if the District of Muskoka case worker were to dispute Ms. Waterhouse's allegations that the case worker did not inform Ms. Waterhouse of the March 31, 2003 hearing date and that on July 25, 2002 the case worker advised Ms. Waterhouse that the matter was out of Ms. Waterhouse's hands, the consequences to Ms. Waterhouse of the trial judge's order would still require that the issue of whether there are any support arrears be determined on the merits.

[4] In all of the circumstances, the order dated March 31, 2003 is set aside, the matter is remitted to the Superior Court for a new trial and there will be no order as to costs of the appeal.

“K. Feldman J.A.”

“Janet Simmons J.A.”

“E.E. Gillese J.A.”