Court File and Parties
Court File No.: 12/08 Date: 2014-12-12 Ontario Court of Justice
In the Matter of a request by Louis Gagne to file a Domestic Contract with the Clerk of the Court of Ontario Court of Justice at Windsor, pursuant to s.35 of the Family Law Act R.S.O. 1990, c. F.3, as amended.
Between:
LOUIS GAGNE Applicant
— AND —
CHARLENE GAGNE Respondent
Counsel: Richard Gordner, for the applicant Louis Gagne
Decision
Tobin, J.:
The Motion
[1] Louis Gagne moves for an order granting him leave to file an Amending Agreement, which amends a Separation Agreement, with the Clerk of the Court, pursuant to s. 35 of the Family Law Act. This would allow amended spousal support provisions to be enforced by the Family Responsibility Office.
[2] The Clerk of the Court (sometimes referred to as "the Clerk") refused Mr. Gagne's request to file the Amending Agreement. The Clerk took the position with Mr. Gagne that the support provisions of the Separation Agreement could only be amended by way of a motion to change pursuant to Rule 15 of the Family Law Rules.
[3] The issue raised on this motion is whether, for the purpose of enforcement, spousal support provisions contained in a separation agreement filed with the Ontario Court of Justice can be amended by way of an Amending Agreement, or must they be amended by way of a Motion to Change?
[4] The Motion was brought as a Form 14B: Motion without Notice.
[5] By endorsement dated December 9, 2014, the Clerk of the Court was asked to advise whether he wished to participate in this motion. The Clerk responded that he did not wish to do so.
[6] For the purpose of this Motion it is assumed that the procedure instituted to have this matter resolved is proper as being procedurally fair, summary in nature and proportional to the importance and complexity of the matter: see Family Law Rules, Rule 2 (2) - (4).
[7] Also for the purpose of this Motion it is assumed that the court has jurisdiction to decide the matter on the basis of its inherent jurisdiction to control its own process.
The Facts
[8] Louis Gagne and Charlene Gagne entered into a Separation Agreement dated May 1, 2009. In part, it provided that Mr. Gagne was to pay Ms. Gagne spousal support in the amount of $1,845.00 per month.
[9] The Separation Agreement was filed together with an Affidavit for filing Domestic Contract (Form 26B) in the Ontario Court of Justice on November 9, 2009.
[10] The support provisions of the Separation Agreement continue to be enforced by the Family Responsibility Office.
[11] Mr. Gagne and Ms. Gagne entered into an Amending Agreement dated May 7, 2014 in which they agreed to vary the spousal provisions of the May 1, 2009 Separation Agreement by reducing the monthly amount of spousal support to $1,100.00. The commencement date of the change in spousal support was May 1, 2014.
[12] Mr. Gagne's counsel attempted to file the Amending Agreement together with a completed Form 26B: Affidavit for Filing Domestic Contract with the Clerk of the Court of the Ontario Court of Justice at Windsor.
[13] The Clerk refused to accept the Amending Agreement for filing.
Analysis
[14] The sections of the Family Law Act relevant to the determination of this motion 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 varied by a court or agreement.
(3) A provision for support or maintenance contained in a contract that is filed in this manner,
(a) may be enforced;
(b) may be varied under section 37; and
37. (1) An application to the court for variation of an order made or confirmed under this Part may be made by,
(a) a dependant or respondent named in the order;
(b) a parent of a dependant referred to in clause (a);
(c) the personal representative of a respondent referred to in clause (a); or
(d) an agency referred to in subsection 33 (3).
(2) In the case of an order for support of a spouse or parent, if the court is satisfied that there has been a material change in the dependant's or respondent's circumstances or that evidence not available on the previous hearing has become available, the court may,
(a) discharge, vary or suspend a term of the order, prospectively or retroactively;
(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and
(c) make any other order under section 34 that the court considers appropriate in the circumstances referred to in section 33.
51. In this Part,
"domestic contract" means a marriage contract, separation agreement, cohabitation agreement, paternity agreement or family arbitration agreement;
54. Two persons who cohabited and are living separate and apart may enter into an agreement in which they agree on their respective rights and obligations, including,
(b) support obligations;
[15] The first question to consider is whether the Amending Agreement is a Domestic Contract within the meaning of the Act.
[16] Section 51 provides that Domestic Contract includes a Separation Agreement.
[17] Section 54 deals with who may make a Separation Agreement and what it may address. This section provides that persons who cohabited and are living separate and apart may enter into an agreement – a separation agreement – dealing with, among other matters, their respective spousal support rights and obligations.
[18] Section 35 provides for the filing of Domestic Contracts, but does not make reference to agreements that amend existing Domestic Contracts. This issue was addressed in Zegil v. Zegil, 41 R.F.L. (3d) 49 at para. 16, where the court held that an amending agreement can be a domestic contract within the meaning of the Act.
[19] The Amending Agreement made by the moving party and his former spouse meet the requirements of s. 54 as they cohabited, are now living separate and apart and it addresses their respective spousal support rights and obligations. The Amending Agreement is a Separation Agreement under s. 54. Therefore the Amending Agreement made by Mr. Gagne and Ms. Gagne is a Domestic Contract.
[20] The next question to determine is whether the Amending Agreement can be filed with the Court so as to give effect to the change in the spousal support obligation for enforcement purposes or is it only possible to do this by way of a Motion to Change brought under rule 15 of the Family Law Rules.
[21] The relevant provisions of rule 15 are as follows:
15 (2) … this rule only applies to a motion to change,
(a) a final order; or
(b) an agreement for support filed under section 35 of the Family Law Act.
(5) Subject to subrules (17) and (18), a party who wants to ask the court to change a final order or agreement shall serve and file,
(a) a motion to change (Form 15); and
(b) a change information form (Form 15A), with all required attachments.
(17) Subject to subrule (18), if the parties to a final order or agreement want to ask the court to change the final order or agreement and the parties and any assignee agree to the change, the parties shall file,
(a) a change information form (Form 15A), with all required attachments;
(b) a consent motion to change (Form 15C);
(c) a motion form (Form 14B) asking that the court make the order described in the consent motion to change;
(d) five copies of a draft order;
(e) a stamped envelope addressed to each party and to the assignee, if any; and
(f) if the order that is agreed on relates in whole or in part to a support obligation,
(i) a support deduction order information form prescribed under the Family Responsibility and Support Arrears Enforcement Act, 1996, and
(ii) a draft support deduction order.
[22] The Clerk's position was that the Amending Agreement cannot be filed because rule 15 sets out the only way to change an agreement for support that was filed under s.35.
[23] With respect, the Clerk's interpretation of rule 15 is unnecessarily restrictive for two reasons: the wording of the rule does not require it and as the moving party did not apply to vary the spousal support provisions under s.37, the procedure for doing so as mandated by rule 15 need not be followed.
The Wording of the Rule Does Not Require It
[24] Section 35 provides a readily available and inexpensive manner to have support terms contained in a Domestic Contract enforced through the Family Responsibility Office. The Family Law Rules should not be interpreted so as to take away this easy access to enforcement of support provisions contained in a Domestic Contract by requiring one of the parties to start court proceedings, unless the language of the rule is clear.
[25] Subrules 15(5) and (17) provide that a party who wants to ask the court to change an agreement is to serve and file enumerated forms. Mr. Gagne does not want to ask the court to change the agreement. He and Ms. Gagne already did that by way of their Amending Agreement. What he wants is the spousal support provisions of the Amending Agreement enforced by the Family Responsibility Office. The language of the rule does not preclude the filing of an agreement that amends the spousal support terms contained in a Separation Agreement provided it is a Domestic Contract as defined by the Act.
Rule 15 Sets Forth the Procedure for Application to Vary Under s.37
[26] Section 35 provides that a provision for support contained in a Domestic Contract may be varied under s. 37. The procedure to be followed when an application for a variation is made is found in Rule 15. The parties to the Amending Agreement did not apply under s. 37 to vary the spousal support provisions of the Separation Agreement. This being the case Rule 15 is not engaged.
Decision
[27] I find that Mr. Gagne's request to change the spousal support provisions of the Separation Agreement by way of an Amending Agreement, both of which are Domestic Contracts and have it filed for the purposes of enforcement does not engage rule 15. The spousal support provisions of the separation agreement can be varied by an amending agreement. The amended terms can be enforced through the Family Responsibility Office by filing the amending agreement. It is not necessary in these circumstances to bring a motion to change under rule 15.
Order
[28] An order will go as requested granting Louis Gagne leave to file the Amending Agreement dated May 7, 2014, amending the Separation Agreement dated May 1, 2009, along with his Form 26B: Affidavit sworn November 4, 2014.
Released: December 12, 2014
"original signed and released"
Barry M. Tobin Justice