Court File and Parties

Court File No.: 466-13 Date: 2013-11-01 Ontario Court of Justice

Between: Timothy Lowther, Unrepresented — and — Leanne Lowther, Unrepresented

Before: Tobin, B., J.

Endorsement

In Chambers

[1] The applicant moves for an order, on consent, varying the child support provision contained in a Separation Agreement entered into by the respondent and him.

Jurisdiction of the Court

[2] The parties entered into a Separation Agreement dated September 9, 2005. It contains provisions obligating the applicant to pay child support to the respondent for their child in the amount of $361.00 per month based upon him having an annual income of $41,830.00.

[3] The jurisdiction of a court to vary a support provision contained in a Separation Agreement is found in s. 35 of the Family Law Act.

[4] The relevant provisions of s. 35 are as follows:

35.(1) A person who is a party to a domestic contract may file the contract with the clerk of the Ontario Court of Justice or of the Family Court of the Superior Court of Justice together with the person's affidavit stating that the contract is in effect and has not been set aside or carried by a court or agreement.

(2) A provision for support or maintenance contained in a contract that is filed in this manner,

(b) may be varied under section 37;

as if it were an order of the court where it filed.

[5] In Jasen v. Karassik, 2009 ONCA 245, the court held at paras. 24 and 33:

[24] … Section 35(1) enables a party to a "domestic contract" to file the contract with an Ontario court. Section 35(2) provides that when a contract is filed under subsection (1), a provision for support or maintenance in the contract may be enforced or varied under s. 37 of the FLA as if it were an order of the court where it is filed.

[33] … Section 35 simply provides a summary procedure which enables a party to file a contract with the court to seek enforcement or variation of a provision as if that provision were an order of the court. This procedure allows parties to take advantage of a variety of statutory processes designed to facilitate recovery of support and maintenance payments.

[6] The Separation Agreement which contains the support provisions the applicant seeks to vary was filed with the clerk of the Superior Court of Justice Family Court Branch at Hamilton on August 30, 2012. A photocopy of the affidavit sworn by the respondent and Separation Agreement required by ss. 35(1) are found at Tab 5 of the Continuing Record.

[7] As the Separation Agreement was filed in the Superior Court of Justice then pursuant to ss. 35(2) the support provision contained in it may be varied "as if it were an order" of the Superior Court of Justice.

[8] The Ontario Court of Justice is without jurisdiction to entertain an application to vary an order which originates from the filing of the Separation Agreement in the Family Court of the Superior Court of Justice. See Gow v. Gow (1989), 18 R.F.L.(3d) 14. In a jurisdiction without a Family Court branch, it is only the Superior Court of Justice that can make the variation sought.

[9] I find therefore the Ontario Court of Justice does not have jurisdiction to vary the order as requested.

[10] Pursuant to s. 110 of the Courts of Justice Act this case is transferred to the Superior Court of Justice at Windsor.

Consent of the Assignee

[11] The Continuing Record discloses that child support payable under the Separation Agreement was assigned by the respondent to the Ministry of Community and Social Services.

[12] In the Consent Motion to Change Support the parties propose that child support arrears owing to the Ministry be fixed and payable on a predetermined schedule. However, the assignee has not signed the consent. As well there is no evidence that the motion to change was served on the assignee as required. The applicant may wish to attend to these matters.

Released: November 1, 2013

Barry M. Tobin Justice