Court Information and Parties

Ontario Court of Justice

Date: 2013-12-17

Milton Registry No.: 370/07

Between:

GARY POLLARD Applicant

— AND —

KAREN WELLS Respondent

Before: Justice Roselyn Zisman

Heard on: 13 November 2013

Reasons for Judgment released on: 17 December 2013

Representation

Gary Wells ...................................................................................................... on his own behalf

Michelle Douglas-Cummings .......... counsel for the Interjurisdictional Support Orders Unit

Reasons for Judgment

Introduction

[1] JUSTICE R. ZISMAN:— These proceedings raise several issues regarding this court's jurisdiction regarding the proper procedure with respect to the variation of a support order where the payor resides outside of the jurisdiction of Ontario.

[2] There are two matters before the court — namely, a confirmation hearing of a provisional order made in England reducing the applicant Gary Pollard's child support obligation for two children in the order of 16 July 2009 from $2,148 per month to £130 per month and a motion by the respondent Karen Wells to release funds currently held in trust made in the context of a motion to change commenced by the applicant pursuant to section 37 of the Family Law Act, R.S.O. 1990, c. F-3, as amended. Counsel for the mother also seeks an order preventing the father from future attempts to forum shopping in any future court proceedings.

[3] Counsel for the Interjurisdictional Support Orders unit took no position but appeared to offer any assistance to the court with respect to any questions regarding the Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13 ("ISOA") process.

Background

[4] It is important to briefly review the background of the parties and their prior court proceedings in order to understand the context of the present proceedings.

[5] The parties were married on 1 August 1992 and resided in England. There are two children of the marriage — namely, Holly Diane Lilly Wells, born on 18 May 2000 and Keeley Michele Clare Wells, born on 10 July 2002. The parties experienced marital difficulties and separated in September of 2002. On the consent of the parties, the children and the mother returned to live in Canada where the mother had spent most of her life. In November 2002, the parties attempted reconciliation and the children and mother returned to England.

[6] The parties had further marital difficulties. In the spring of 2003, the father suffered from depression and had a breakdown that resulted in his being hospitalized for about eight weeks. On 1 June 2003, the children and the mother left England with the full consent and agreement of the father. The mother returned to Burlington, Ontario where her family resided.

[7] From October 2003 to approximately April of 2006, the father made monthly visits to see the children. The mother agreed that the father could stay in her home with herself and the children to facilitate the father's visits to the children. These visits would generally range from about 5 to 7 days.

[8] In February of 2006, the father began divorce proceedings in the County Court in the United Kingdom. In the context of those proceedings the father prepared a "Statement of Arrangements for Children". The statement provided that the children continue to reside primarily with the mother in Burlington, Ontario and that she would look after the children on a day-to-day basis. The statement provided that the father would make monthly visits to Canada to see the children and that, when the children were older, they would visit him in England on a regular basis. The father signed the agreement which provided that, in the event the mother did not agree with the arrangements, the matter would be discussed with a conciliator. In the English court system, a conciliator works in the same fashion as a parent coordinator might work in Ontario. The agreement further provided that the father was paying child support in the amount of £500 a month per child for a total of £1,000 per month. The mother signed the agreement indicating that she agreed with all of these arrangements. The father then obtained what in this jurisdiction would be termed an uncontested divorce and none of the provisions of the "Statement of Arrangements for Children" were included in the divorce order.

[9] The arrangements for the children's residence and the father's access continued in accordance with this agreement. By April 2006, the mother had remarried and the father then purchased a small home in Burlington, Ontario to facilitate access arrangements with the children and the children then exercised access in his home.

[10] With respect to the financial arrangements, the father paid £1,000 per month up to 31 April 2006. He then unilaterally reduced support to £500 per month up to 31 December 2006 and then made no other payments.

[11] The father commenced an application on 14 September 2007 in this court and the mother filed an answer. During these proceedings, the father attended personally when he was in this jurisdiction or otherwise by telephone conference call. Both parties were represented by counsel.

[12] A contested temporary motion was heard with respect to custodial and support issues before me. At the time of the motion, the father was in arrears of a temporary "without prejudice" order that had been made.

[13] I released my decision on 3 November 2008 and based the father's child support obligation of $2,148.00 on his actual income of $163,466 and not on an imputed income of $185,000 as requested by mother's counsel. [See Wells v. Pollard, 2008 ONCJ 646, 176 A.C.W.S. (3d) 752, [2008] O.J. No. 5679, 2008 Carswell Ont 8791.]

[14] The parties subsequently entered into a final consent order on 16 July 2009 that provided that all arrears owing from the 8 November 2008 order be paid with interest, that the father pay child support of $2,148 per month based on his income of $163,466 and that support be adjusted annually on 1 January of each year to reflect any change in the father's income. The order also provided that the father continue to pay this amount of support until the parties agree in writing or a court order changes the amount. The order provided for disclosure of the father's personal and corporate income annually. There were also provisions for the sharing of the children's special or extraordinary expenses.

[15] The father commenced an application pursuant to the provisions of equivalent of ISO legislation in England to change the final order of this court. The legislation in England requires a court to proceed by means of a provisional hearing and the order made is then subject to confirmation by the court in the reciprocating jurisdiction.

[16] On 30 November 2011, a provisional hearing was held in England and an order made on 5 December 2011 reducing the father's child support obligation to £130 per month effective as of 30 November 2010 on the basis that father's income had been reduced since the final order was made. The brief reasons of M. Canodah, Justice of the Peace for Local Justice Area of North Hampshire, state that,

Mr. Wells states that his circumstances have changed since the order was made and produces a statement of means and trial bundle which we have considered. We make a finding that Mr. Wells receives a weekly income of £210.00 that they (children) stay with him from between 104 and 155 nights per annum.

On that basis we have applied the Child Maintenance calculator as used by the Child Maintenance and Enforcement Commission (see attached) and conclude that it would be appropriate to grant the application by reducing the monthly sum payable down to £30.00 monthly. This is a Provisional Order.

[17] The reasons are confusing as the actual order states that the amount is reduced to £65.00 a month per child as of 30 November 2010 and, although the arrears are stated to be £29,033.48, there is no reference to any order with respect to the arrears prior to 30 November 2010.

[18] There was also a statement for the father entitled "Evidence given under oath by Gary Wells" that states as follows:

I apply to vary the terms of the maintenance order made on 16th July 2009 by the Ontario Court of Justice on the basis that my income has reduced.

I provide in support of my claim a statement of means and support documents.

I paid maintenance for my children for seven or eight years and then about three years ago things got tough. I was forced to sell personal assets in order to visit Canada. For the past three years, I have paid when I can, I have also paid 2000 Canadian Dollars direct and would like this taken into account when calculating the arrears figure.

When the original order was made, the Canadian court determined that I was earning £90,000 per annum (180,000 Dollars). My income was never that much.

I own property in Canada so that the children can come and stay with me for ten days in each month. I feed and clothe them during this period. I have a mortgage of approximately £25,000. I no longer receive tax credit.

My income has reduced and I seek to vary the terms of the order.

I certify this to be a summary of the substance of the evidence given on oath by Gary Wells at the court hearing on 30th November 2011.

[19] The statement of means and documents filed by the father and the provisional order were not forwarded to this jurisdiction until 6 September 2012 and the mother was served on 14 September 2012 and filed her response on 18 October 2012.

[20] After reviewing the materials, on 21 November 2012, I requested further information and specifically requested a copy of the transcript of the father's evidence as I assumed that he had testified under oath and I also requested a copy of the magistrate's reasons for the variation. My endorsement indicates that I was not able to confirm the provisional order without a complete transcript of what transpired at the provisional hearing. The confirmation hearing was adjourned pending further evidence. However, I noted in my endorsement that as the currency exchange rate had changed from 2:1 at the time of the original order to 1.6:1, this could be deemed to be a material change in circumstances.

[21] On 11 December 2012, the father commenced a motion to change in this jurisdiction and brought an emergency motion on 12 December 2012 for the lifting of a lien placed on his home in Burlington by the Family Responsibility Office for child support arrears. The motion was heard by Justice Sheilagh M. O'Connell. The endorsement indicates that the father and his counsel were present as was counsel for the Family Responsibility Office but the mother was not present. According to the affidavit of service, she was served the day before the motion. A temporary order was made that the lien by the Family Responsibility Office for about $75,000 be lifted so the house sale could proceed, that the mother be paid $25,000 and the balance be held by the real estate lawyer pending further court order. Through inadvertence, a return date was not set for the motion to change.

[22] In response to my request for further information with respect to the confirmation hearing, on 16 July 2013 a letter was received from Angela Foot, Section manager, Aldershot and Farnham County Court, Hampshire, United Kingdom, advising that hearings in Magistrates Court are not taped and therefore there was no transcript of the provisional hearing and that there were no further reasons for judgment.

[23] The mother requested an oral hearing and the mother and her counsel attended before me on 8 October 2013. The court received further materials from the father on 7 October 2013 that were not served on the mother. A copy was made and provide to counsel at court.

[24] These documents related to a further "hearing" held on 2 August 2013 which appeared to simply confirm the provisional order the court made on 30 November 2011. The document entitled "Reasons" states that the court heard evidence from the father and considered the documents he produced and found him to be a truthful witness and found no reason to question or challenge the evidence he gave to the court. Again there is no transcript of the evidence and in reading the statement the father filed in that court hearing, he fails to mention that he received at least $200,000 from the sale of his home in Ontario. With the greatest of respect to the justice who heard this matter in the United Kingdom, I have some serious concerns about the statement and documents filed. I also do not understand how another provisional hearing is held when the decision of this court as to whether or not the order should be confirmed is still outstanding.

[25] Mother's counsel advised the court that the mother was not receiving any child support and the arrears were now $72,284.57. Counsel also submitted that the father had attorned to the jurisdiction of this court by commencing a motion to change in December 2013 and she sought the release to the mother of the approximate $50,000 that had been ordered to be held in trust by the father's real estate lawyer.

[26] The mother's counsel was requested to serve and file a formal motion on notice to the father who would be permitted to participate by telephone conference call.

[27] Both the confirmation hearing and the motion for the release of the trust funds were heard before me on November 13, 2013. The father participated by telephone conference call. The father read from a prepared statement that was subsequently forwarded to the court. The statement does not deal with the substantive issues or respond to the issues raised about the father's alleged change in financial circumstances except in very general manner. The father did request that the $50,000 held in trust be returned to him. He accused the court and mother's counsel of raising spurious jurisdictional issues. He also advised the court that he had not seen his children in over a year.

[28] I have also reviewed the materials filed by both the father and mother in these proceedings.

Analysis

1: How should this court proceed to hear a variation application by a payor who resides outside of the jurisdiction?

[29] The father had two ways in which he could have requested the court to vary the order of 16 July 2009 with respect to his child support obligation, either he could have appeared in this jurisdiction, pursuant to section 37 of the Family Law Act or he could have appeared before an English court for a provisional variation of the Ontario support order under their reciprocity statutes.

[30] The Ontario Court of Appeal in the case of Jasen v. Karassik made it clear that ISOA is not a complete code for the initiation or variation of a support order where one of the parties resides outside of Ontario. Accordingly, there was nothing to prevent the father from proceeding under either statute.

2: Under which statute should the court deal with the variation?

[31] Jurisdiction can be asserted against an out-of-province party in three circumstances: the party is physically present in Ontario, the party consents or attorns to this jurisdiction or Ontario has a real and substantial connection to the matter being litigated and service ex juris has been properly effected.

[32] In this case, the father who is the moving party is not a resident of Ontario and is not present. But he has been present when he chose to commence a motion to change in this jurisdiction on 12 December 2012.

[33] It is submitted by mother's counsel that, by commencing his motion to change, the father has attorned or consented to this jurisdiction. Attornment is an issue when a person appears, generally as a respondent in a court that would not normally have personal jurisdiction over the respondent and pleads to the merits of a case.

[34] In this case, the father is the party that commenced proceedings in this jurisdiction. In other words he sought out the assistance of this court, for an emergency order on 13 December 2012, despite the fact that there were ongoing proceedings in England and despite the fact that, on 21 November 2012, I had already sent a request for further information to the court in England and was not prepared to confirm the provisional order.

[35] The father chose to proceed in this jurisdiction, pursuant to the Family Law Act, when it suited his purposes. He commenced a motion to change requesting the same variation that he sought through the ISOA proceedings. He then proceeded with an urgent temporary motion and was able to secure the release of funds from the sale of his home in Ontario, of about $200,000, with only $75,000 being held back and only $25,000 being released to the mother. He then effectively abandoned his motion to change in Ontario and then continued with his proceeding in England. I find therefore that the father has attorned to the jurisdiction of this court.

[36] Further, Ontario has a real and substantial connection to the subject matter such that this court should assume jurisdiction pursuant to the Family Law Act. In Muscutt v. Courcelles, the court outlined the following factors that relevant to an inquiry to determine a real and substantial connection as follows:

• The connection between the forum and the plaintiff's claim;
• The connection between the forum and the defendant;
• Unfairness to the defendant in assuming jurisdiction;
• Unfairness to the plaintiff in assuming jurisdiction;
• The involvement of other parties to the suit;
• The court's willingness to recognize and enforce an extra-provincial judgement rendered on the same jurisdictional basis;
• Whether the case is interprovincial or international in nature;
• Comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere.

[37] Most of these factors support the conclusion that there is a real and substantial connection in this case to Ontario. There is a strong connection between the forum and the subject matter, namely child support for two children who reside in Ontario. The father specifically chose this jurisdiction to litigate and therefore he has attorned and consented to this court assumed jurisdiction. There is no apparent unfairness to the father to require that he proceed with his variation motion in Ontario through our domestic legislation. He initially chose to litigate in this jurisdiction in his initial application, even though he was a non-resident and has been able to obtain a fair hearing throughout. Although the mother would not be forced to litigate in another jurisdiction as pursuant to the ISOA, she is entitled and in fact she has already filed responding materials and made submissions with respect to that proceeding. There is no doubt that Ontario courts would recognize and enforce a court order made in another jurisdiction and the process pursuant to the ISOA legislation requires that this court confirm the provisional order made in England. The other factors are not relevant.

[38] However, as described in Muscutt v. Courcelles, even if there is a real and substantial connection among the subject matter, parties and forum, the court retains the jurisdiction on the basis that there is a more convenient forum for the action.

[39] Generally, a multiplicity of proceedings is to be avoided. I agree with the submission of mother's counsel that ISOA was enacted as an alternate process designed to redress the difficulties with having litigants in two different jurisdictions. In this case, it has had the opposite effect.

[40] I also find that this jurisdiction is more convenient as the process for a motion to change in this jurisdiction would permit the court to hear and evaluate the father's alleged change in circumstances in a more fulsome manner than appears to be the process in England for a variation of the outstanding support order. This court was provided with no understanding of the guiding factors or principles applied to vary of quantum of the father's support obligation.

[41] I also find that the father has misled the hearing officer in England about several relevant factors.

[42] The father has included several letters he sent to the Family Responsibility Office requesting that the office change the terms of the outstanding order as the order provides that the amount of support could be adjusted annually based on a change in the father's income. He alleges that he never received a response and this is an example of why he is unable to obtain any relief in Ontario. However, the father would be aware that the Family Responsibility Office has no authority to vary a court order but simply enforces orders.

[43] The father repeatedly refers to being ordered by the court to pay child support based on an income of $180,000 which he alleges he never earned. However, the father fails to mention that the final order dated 16 July 2009 was made on consent and based on the father's actual income of $163,466.

[44] The father underestimated that value of his assets in Ontario specifically the value of his home that he indicated was worth about $200,000 and does not mention that it was listed for sale for $274,000. The father did not include any information about his bank accounts in Ontario.

[45] The father is the sole shareholder and managing director of his company GK Design Contracts Ltd. It does not appear that the calculation of the father's income includes any dividends or benefits paid by the company to him for example, contributions to his pension, first class airline flights to Canada or take into account any deductions he may have taken for the use of his home that is also his business office.

[46] The father alleges that there has been a drastic decrease in the company's revenues. However, the gross revenues reveal a range from £242,049 to £292,578 from March 2008 to March 2011. He did not explain why the salaries of his employees would have increased whereas his own salary decreased.

[47] The father also alleged that, until two or three years ago, he had faithfully paid support but this is not accurate as he stopped paying support in 2006 and again in 2008.

[48] The variation was based on the father spending 104 to 155 nights per year with his daughters but it is not clear if this is accurate as the father submitted that he had not seen his daughters in over a year and it was not clear if he actually was spending that amount of time with them previously. The formula applied by the court was not appended to the reasons and it is clear that, at least in the last year, this is not an accurate statement.

[49] There are also discrepancies in the father's alleged income and his bank deposits that were never scrutinized or explained.

[50] Even if the father had not complicated these proceedings by commencing a motion to change in this jurisdiction while he had a pending ISOA variation application outstanding, I would not have confirmed the provisional order made in Aldershot and Farnham County Court based on the concerns raised by the discrepancies in the evidence presented and lack of a thorough scrutiny of the father's financial affairs.

[51] In summary, I find that in the circumstances of this case, by commencing a motion to change in this jurisdiction, subsequent to having an outstanding variation application pending under ISOA, the father has attorned to the jurisdiction of this court and has effectively chosen to litigate in this jurisdiction pursuant to the Family Law Act. He should not now be permitted to revert to his ISOA variation. Duplicity of proceedings should be strongly discouraged. This court in the context of a motion to change is in the best position to scrutinize the father's alleged change in circumstances.

[52] The father has been able to attend in this jurisdiction in person previously both with respect to the initial application he commenced in 2008 and on the motion to change he commenced in December 2012. He can continue his motion to change and appear by telephone conference or if an oral hearing is required then arrangements can be made for examinations and cross-examinations by Skype.

[53] The mother has not filed a response to the motion to change and she may be requesting relief from the court other than simply opposing the father's variation motion. The mother is granted leave to serve and file a response within the next 60 days. Thereafter, the parties should arrange a date for a case conference before me as there will need to be an order for further disclosure from the father.

3: Motion by mother for the release of funds held to trust to herself

[54] As a result of the urgent motion on 13 December 2012, the father was able to obtain about $200,000 from the sale of his home with only $75,000 being held in trust. As the father has not provided any documents from the sale, I am not certain whether he obtained $200,000 net or the $75,000 was deducted from his share of the sale proceeds. In any event, the mother only obtained $25,000 on account of child support arrears.

[55] If the mother or her counsel had been present at that motion, a strong argument could have been made for the entire proceeds to be retained to enable the mother to bring a motion for the funds to be held as security for ongoing child support payments or for a lump sum child support payment in view of the father's dismal record for payment of child support and the fact that he resided outside of the jurisdiction.

[56] I have not been advised of any enforcement proceedings that have been initiated by the equivalent agency of the Family Responsibility Office in the United Kingdom. The mother has not received any support payments from the father for several years, not even in the small amount ordered pursuant to the provisional order. The arrears, based on the outstanding court order, are in excess of $75,000. The outstanding order is in full force and effect and even if that order is subsequently varied the father will be given credit for any overpayment.

[57] I find that there are sufficient discrepancies on the father's materials that I am somewhat doubtful that his support obligation would be drastically reduced. However, that view is subject to further financial disclosure that the father will have to provide. Mother's counsel has also raised the issue that the differences in the exchange rate may not be a significant change in circumstances in view of the more favourable tax rate that the father receives in the United Kingdom.

[58] If the funds are not released the mother will continue not to receive any funds that are required by her to meet the needs of the children.

[59] I therefore find that any funds currently held in trust by the father's real estate lawyer, Gord Mohan, be immediately released to the mother. The mother will notify the Family Responsibility Office that she has received these funds so their records can be adjusted accordingly.

Order

[60] Order as follows:

1. The applicant, Gary Wells shall be required to proceed with any variation of the order of 16 July 2009 pursuant to a motion to change in the Ontario Court of Justice.

2. The respondent shall be permitted to serve and file a responding affidavit to the applicant's motion to change within 60 days. Thereafter, the parties shall obtain a case conference date before me.

3. The provisional order of 5 December 2011 is not confirmed.

4. Pending further court order or agreement of the parties, the order of 16 July 2009 continues in full force and effect.

5. Mr. Gord Mohan, barrister and solicitor, shall forthwith release to the respondent, Karen Pollard or her counsel Laura Oliver, the funds held in his trust account, being approximately $52,804.57 and any accrued interest, pursuant to the order of Justice O'Connell dated 13 December 2012.

6. Upon the receipt of such funds, the respondent shall notify the Family Responsibility Office of the amounts received so that their records can be adjusted accordingly.

[61] As the successful party, the respondent is presumed to be entitled to costs, if costs are being sought brief written submissions with a bill of costs are to be served and filed within 30 days and the applicant will have 30 days to serve and file any response.

Released: 17 December 2013

Signed: "Justice Roselyn Zisman"

Footnotes

[1] At the current rate of exchange of 1.7 this would be $221.

[2] This is £10,920 yearly and is equivalent to about $18,843.

[3] No calculations were attached.

[4] 2009 ONCA 245, 95 O.R. (3d) 430, 248 O.A.C. 5, 306 D.L.R. (4th) 723, 62 R.F.L. (6th) 63, [2009] O.J. No. 1175, 2009 Carswell Ont 1507.

[5] Supra, at para. [16] citing with approval Muscutt v. Courcelles, 60 O.R. (3d) 20, 160 O.A.C. 1, 213 D.L.R. (4th) 577, 13 C.C.L.T. (3d) 161, 26 C.P.C. (5th) 206, [2002] O.J. No. 2128, 2002 Carswell Ont 1756 (Ont. C.A.) at paras. [19]-[20].

[6] Muscutt v. Courcelles, supra, at paras. [77]-[110].

[7] Courts of Justice Act, R.S.O. 1990, c. C-43, as amended, section 138.