Court File and Parties

Date: June 12, 2017 Court File No.: 112/17 Ontario Court of Justice

In the Matter of a Request for a Provisional Order pursuant to Section 44 of the Family Law Act, R.S.O. 1990, c. F.3, as am.

Between: Nicole Foreman, Applicant

— and —

Marc Longeuay, Respondent

— and —

Ontario Works Kawartha Lakes and Ontario Works London, Assignees

Before: Justice Barry Tobin

Heard on: May 8, 2017

Endorsement released on: June 12, 2017

Counsel

Rayleen Cantin — counsel for the Respondent Longeuay

Wayne Beneteau — counsel for the Family Responsibility Office, Friend of the Court

Endorsement

Tobin, B., J.:

The Motion

[1] The Respondent Marc Longeuay brought a Motion to Change child support provisions contained in a separation agreement.

[2] Pursuant to s. 44 of the Family Law Act, he seeks a provisional order terminating his obligation to pay child support under the separation agreement effective April 25, 2016, fixing arrears of child support in the amount of nil or in the alternative, $5,450.83 as of April 25, 2017, and that repayment of arrears be limited to $150.00 per month until all arrears are paid.

[3] The Respondent also seeks a temporary order staying; (i) his obligation to pay ongoing child support and (ii) the corresponding Support Deduction Order, pending confirmation of the provisional order, and with respect to any arrears that may be found to be owing, that payment towards arrears be limited to $150.00 per month.

Provisional Order

[4] The Respondent resides in Windsor.

[5] The Applicant Nicole Foreman resides in Lindsay, Ontario, a community that appears to be more than 150 kilometres away from the City of Windsor.

[6] The Applicant was served with the Respondent's Motion to Change on March 21, 2017. She has not responded to the Motion to Change.

[7] She has not appeared.

[8] I am of the opinion that in the circumstances of this case, as will be described below, the issues raised can be adequately determined by proceeding under s. 44 of the Family Law Act. Any delay and additional expense incurred by this process is outweighed by the fairness in having the Applicant participate in her locality.

Facts

[9] The Applicant and Respondent were in a relationship and are the parents of one child, Hailey Marie Longeuay, born April 25, 1998. Their relationship ended when they separated in August 1998.

[10] The parties subsequently entered into a separation agreement which was signed by the Respondent on April 26, 2002.

[11] Under the terms of the separation agreement the Respondent was obliged to pay support to the Applicant in the amount of $300.00 per month for the child. The separation agreement set out a number of events that would result in the termination of the Respondent's child support obligation. One of those events was the child turning 18 years of age, unless she was enrolled in a full-time program of education.

[12] On October 21, 2002, the Applicant filed the separation agreement with the Superior Court of Justice Family Court at London.

[13] The child turned 18 years of age on April 25, 2016.

[14] On April 26, 2016, the Respondent, with the consent of the Applicant, stopped making child support payments as the child had turned 18 years of age and was not going to school.

[15] The Respondent's evidence is that he always paid child support directly to the Applicant.

[16] Receipt of this child support paid directly to the Applicant was not recorded by the Family Responsibility Office.

[17] According to the records of the Family Responsibility Office, the Respondent is in arrears of child support due under the separation agreement. As of April 7, 2017, it recorded the Respondent to be in arrears of child support in the amount of $29,150.83.

[18] Out of that amount, $600.00 was assigned to Ontario Works Kawartha Lakes.

[19] A representative of Ontario Works Kawartha Lakes investigated the Respondent's claim that he paid child support directly to the Applicant. He provided bank records. Ontario Works Kawartha Lakes agreed to rescind these arrears.

[20] The City of London Social Services also claimed arrears in the amount of $5,100.00. It too rescinded its claim.

[21] I accept that the total arrears owing by the Respondent to the Applicant for child support as of April 25, 2017 are in the amount of $5,450.83, as calculated at Exhibit E of his affidavit sworn April 27, 2017.

Legal Considerations

(i) Jurisdiction

[22] When this matter was before me, I asked counsel to address the issue of this Court's jurisdiction to deal with this case. My concern arose as the separation agreement was filed in the Superior Court of Justice Family Court at London. In Lowther v. Lowther, 2013 ONCJ 582, I held that the Ontario Court of Justice did not have the jurisdiction to vary support provisions contained in a separation agreement that had been filed in the Superior Court of Justice Family Court pursuant to s. 35(1) of the Family Law Act.

[23] Counsel provided me with helpful submissions and I am satisfied that this Court has jurisdiction to make a provisional order in this case. The Lowther decision is distinguishable from this case. In Lowther a final order was sought, not a provisional order under s. 44 of the Family Law Act.

[24] Under s. 44 of the Family Law Act, an application under s. 37 of the Family Law Act must take place in either the Ontario Court of Justice or the Superior Court of Justice Family Court. A request for a provisional order cannot be made in the Superior Court of Justice: See Larocque v. Chiasson, 2008 CarswellOnt. 5641 (Ont. SCJ). The Ontario Court of Justice is the only court in this municipality with the jurisdiction to make a provisional order under s. 44: See also Family Law Rules subrule 37.1(2) "originating court" (b).

[25] As this matter is proceeding on the basis of a request that this court provide a provisional order, it is not necessary for me to revisit the Lowther decision.

(ii) Child Support

[26] The Family Law Act provides at ss. 31(1) that a parent has an obligation to provide support for his or her unmarried child who is not a minor, if that child is enrolled in a full-time program of education. Once a child attains the age of 18 years the obligation of a parent to pay child support on his or her account ends if the child is not enrolled in a full-time program of education.

Application of Legal Principles

[27] I find on the evidence in the record before me, the Respondent's obligation to pay child support to the Applicant for the child ended April 25, 2016 on the following basis:

a) The child turned 18 years of age on April 25, 2016;

b) On April 26, 2016 he had the consent of the recipient to stop making support payments as their daughter was 18 years of age and not going to school; and

c) He made application to the Family Responsibility Office to discontinue enforcement of ongoing support by application found at Exhibit B to the Respondent's affidavit, sworn April 27, 2017. In that application, he reported to the Family Responsibility Office that the reason support should be discontinued was:

"My daughter turned 18 years of age last April 25, 2016. She has not enrolled in any education program since graduating secondary school last June 2016".

The application was signed by him and dated March 2, 2017. The information contained in the application is different than that contained in paragraph 35 of the Respondent's affidavit wherein he states that April 26, 2016 with the consent of the recipient, he stopped making payments. In this circumstance of the contradictory evidence from the Respondent, I prefer the sworn evidence contained in the affidavit over the unsworn statements contained in the application.

[28] I accept the Respondent's evidence that he paid child support directly to the Applicant as set out in Exhibit B to his affidavit. He convinced the two assignees and they agreed to rescind any claim for arrears of support to which they were entitled from him.

Payment of Arrears

[29] The Respondent asks that arrears be repaid in the amount of $150.00 per month until such time as the arrears have been paid in full.

[30] The financial statement filed by the Respondent, sworn March 7, 2017, discloses that he has annual income of $43,345.80. He discloses yearly expenses of $49,460.04. The financial statement does not disclose whether he lives alone or with another person or persons.

[31] The evidence also discloses that the Respondent continued to pay $300.00 per month from April 25, 2016 to April 25, 2017. This demonstrates to me that he has the ability to pay off the arrears in the monthly amount of $300.00.

[32] I fix the arrears to be $5,450.83 as of April 25, 2017.

[33] The arrears shall be repaid at the rate of $300.00 per month until paid in full.

Request for a Temporary Order

[34] As this matter is proceeding provisionally and may take a number of months to be considered in the confirming court, the Respondent asks for a temporary order staying both his obligation to pay ongoing child support and the corresponding Support Deduction Order. He also asks for a temporary order that arrears be paid at the rate of $150.00 per month.

[35] The Respondent relies upon s. 106 of the Courts of Justice Act which provides that a court may stay any proceeding in the court on such terms as are considered just. I see no reason why this Court cannot make a temporary order at the same time as a provisional one is made.

[36] I am satisfied that this Court has the jurisdiction pursuant to s. 106 of the Courts of Justice Act to stay the Respondent's ongoing child support obligation under the separation agreement, along with the corresponding Support Deduction Order in relation to ongoing child support, and to fix the amount of arrears and repayment schedule under a temporary order pending confirmation, or not, of the provisional order.

Order

[37] This Court makes the following provisional order:

a) The Respondent's obligation to pay child support to the Applicant for the child terminated April 25, 2016; and

b) The arrears of child support owing by the Respondent to the Applicant pursuant to the support provisions contained in the separation agreement made by them and filed with the Superior Court of Justice Family Court at London shall be fixed in the amount of $5,450.83 as of April 25, 2017 and shall be repaid at the rate of $300.00 per month until paid in full.

[38] This Court makes the following temporary order pursuant to s. 106 of the Courts of Justice Act:

a) the Respondent's ongoing obligation to pay child support to the Applicant for the child along with the corresponding Support Deduction Order, shall be stayed effective April 25, 2016 pending resolution of this Motion to Change; and

b) the collection of arrears of child support fixed in the amount of $5,450.83, as of April 25, 2017, is stayed except to the extent of $300.00 per month starting the first day of July 2017 and on the first day of each month thereafter, pending resolution of the Motion to Change.

[39] Pursuant to ss. 44(3) of the Family Law Act, and r. 37.1(3) of the Family Law Rules copies of such documents and records, certified in such manner as are prescribed, shall be sent to the court in the locality in which the Applicant resides, namely, Lindsay, Ontario, so that this matter can be dealt with pursuant to the relevant provisions of the Family Law Act, s. 44.

Released: June 12, 2017

Original signed and released

Tobin, J.