Court Information
Ontario Court of Justice
In the Matter of the Family Law Act, R.S.O. 1990, c. F.3
Between:
Amanda Jean Bouchard (Respondent)
— and —
Antony Graydon Logan (Applicant)
Heard: May 23, 2018
Before: Justice John Kukurin
Endorsement
Background and Procedural Issues
[1] This decision is on a Motion to Change brought by the Respondent father in this court at Sault Ste. Marie, seeking termination of a final support order made on consent in the court at Thunder Bay by Justice J. L. Pelletier and dated April 23, 2014. The Applicant mother has been served by special service and has failed to file any Response to the father's Motion to Change. Her time to respond is now expired. She is not present and has no one representing her. There does not appear to be any assignment of the support order.
[2] What is relevant is that the father resides in Sault Ste. Marie and the mother resides in the Town of Nipigon. These are locations that are a considerable distance apart, certainly more than 150 kilometres, and in entirely different districts.
[3] The main issue in this case is whether the father, as the motion applicant in the Motion to Change, can rely on the provisions in the Family Law Rules for his procedure, or whether the court has to follow the Family Law Act in how the case proceeds. This is not a new issue for this court and often leads to the same conundrum. There are downsides to whatever choice is made depending on whether one is the motion applicant or the motion respondent.
The 2014 Support Order
[4] The relevant child support provision of the 2014 order are contained in paragraphs 1, 2, 3, 4, 5, 6 and 7 of the order. They provide that the Respondent father pay to the Applicant mother, for the two children, Devon and Hunter, twin boys, the sum of $906 per month commencing May 1, 2014, an amount that was commensurate with the father's income at that time pursuant to the child support Guidelines, which I infer was the Child Support Guideline table amount. The birth date of the boys is given as August 16, 1999. They would have both attained 18 years on August 16, 2017.
[5] The April 23, 2014 support order also provided for annual re-assessment and adjustment as of June 1st annually. So far as can be determined, this never took place.
[6] The order also provided, in its paragraph 3, that it was to continue until certain events occurred. The full text of paragraph 3 is set out below:
- Ongoing child support shall continue until the children are 18 or until they are no longer enrolled in a full time program of education, provided the children have not withdrawn from parental control, and provided the children continue to reside primarily with the Applicant mother during the non-school year throughout their post-secondary education, pursuant to s.31 of the Family Law Act.
[7] There are other provisions in that order that are of some note. These are paragraphs 4, 5 and 6. They provide that arrears of child support at the time of the order were fixed at $19,000 (para 4), and that the father was to pay to the mother $200 per month on such arrears in addition to the $906 he was to pay as ongoing child support (para 5), and that when the obligation of the father to pay child support terminated, he was to pay on the arrears still then outstanding, not only the $200 per month, but also the monthly CSG table amount commensurate with his annual income at the time of termination, until the arrears were paid in full (para 6).
[8] The father deposes in his evidence that he attempted to effect termination through the Family Responsibility Office (FRO) where the 2014 order has been filed for enforcement. However, he was not successful. The Director FRO advised him by letter on February 1, 2018 that the support recipient (the mother) "does not agree that your obligation to pay support has ended as children are attending full time school". As a result, he has been forced to bring this Motion to Change to do so through the courts.
Consequences of Failure to Respond
[9] When a respondent to a Motion to Change fails to respond by filing a Response to Motion to Change within the time permitted, certain consequences occur.
Rule 15(14) The consequences set out in paragraphs 1 to 4 of subrule 1 (8.4) apply, with necessary changes, if a party does not serve and file a response to motion to change (Form 15B) or return a consent motion to change (Form 15C) to the party making the motion as required under subrule (9). O. Reg. 322/13, s. 9 (1); O. Reg. 142/14, s. 8.
[10] This necessitates a review of subrule 1(8.4), in particular paragraphs 1 to 4 of this subrule which the father argues apply in the circumstances of this case. These are set out below:
Rule 1(8.4) If an order is made striking out a party's application, answer, motion to change or response to motion to change in a case, the following consequences apply unless a court orders otherwise:
The party is not entitled to any further notice of steps in the case, except as provided by subrule 25 (13) (service of order).
The party is not entitled to participate in the case in any way.
The court may deal with the case in the party's absence.
A date may be set for an uncontested trial of the case. O. Reg. 322/13, s. 1.
[11] Counsel for the father seeks to rely on these provisions in the Rules and to proceed with an uncontested trial.
The Family Law Act Section 44 Procedure
[12] However, there is a provision in the Family Law Act which may also cover the circumstances in this case. That provision is found in s. 44(1) of the Family Law Act, reproduced below:
S.44 (1) In an application under section 33 or 37 in the Ontario Court (Provincial Division) or the Unified Family Court, the court shall proceed under this section, whether or not the respondent in the application files a financial statement, if,
(a) the respondent fails to appear;
(b) it appears to the court that the respondent resides in a locality in Ontario that is more than 150 kilometres away from the place where the court sits; and
(c) the court is of the opinion, in the circumstances of the case, that the issues can be adequately determined by proceeding under this section. R.S.O. 1990, c. F.3, s. 44 (1).
[13] The present case is one brought under s. 37 of the Family Law Act (for variation/termination) of a family court support order. The respondent to the Motion to Change (the mother) has failed to appear. I can take judicial notice that Nipigon is more than 150 kilometres from Sault Ste. Marie where this court sits. It is the last pre-requisite in (c) above that is somewhat problematic.
[14] While the pre-requisites in (a) and (b) are factual, the one in (c) is not. It is an opinion, albeit of the court, and requires a judicial determination. It is an opinion that deserves some scrutiny and some decision of what it is an opinion about, and what it is not an opinion about.
[15] This third pre-requisite is not contingent on the court's opinion that the issues can be adequately determined by proceeding under the Family Law Rules by way of an uncontested hearing. It may be that this is precisely the court's opinion. However, that opinion is of no relevance in terms of s.44 Family Law Act. What is relevant, and the only thing that is relevant, is whether, in the opinion of the court, the issues can be adequately determined by proceeding under s.44 of the Family Law Act. If the court decides that proceeding under s.44 Family Law Act can adequately determine the issues, then it must proceed under s.44. Once the three pre-requisites have been met, the court has no choice otherwise. The section is mandatory.
[16] Section 44 of the Family Law Act creates a procedure that involves the making of a provisional order in one court location, based most often on evidence of one party, and sending the case, with the provisional order, to a court in another location for confirmation by another judge in that other location, either as made or with some changes which may be justified by the evidence, or not confirmed at all. A transcript of what took place in the first location is sent with all of the materials forwarded to the second location. The biggest criticism of this procedure is that the evidence at both court locations is not tested by cross examination, and accordingly may not be the best evidence for the court at either location to rely upon. The order made at the first location is a "provisional" order only. It has no force or effect. The court order made at the second location is the operative order that resolves the issues in the proceeding.
[17] The question is whether this court is of the opinion that this case can be adequately determined by this provisional/confirmation procedure under s. 44 Family Law Act. In fact, at the present time, I do. This will effectively give the mother a second opportunity to put before the court her version of the facts. She has failed to do so when served with the father's Motion to Change.
The Issues and Evidence
[18] The issue in this case is relatively simple. The father alleges that the two children are no longer enrolled in a full time program of education. He also alleges that they have withdrawn from parental control. Finally, he alleges that neither one any longer resides with the mother.
[19] The child Devon left the mother's home in April 2017, moved into the home of his girlfriend and her parents, graduated in June 2017 and was working full time from August to November 2017. He has since relocated to Kingston, Ontario with the girlfriend's family.
[20] If this is all true, he would have been disentitled to support as early as May 2017 (when he no longer resided with the mother) or by July 2017 (as he was then age 18) or August 2017 (as he was by then working full time and no longer in a full time educational program). Devon did apply for a college program to start in January 2018 but declined to attend.
[21] Hunter also graduated in June 2017. He apparently is participating in independent studies which started in September 2017, but this is not according to the father, "a full time program of education". Where he is residing at present is not disclosed in the father's evidence.
Hearsay Evidence and the Family Law Rules
[22] The problem with the evidence on which these allegations are based is that it is unequivocally hearsay evidence. The source of the information is the children themselves with whom the father has spoken. Hearsay evidence is not admissible at trial, even an uncontested trial, unless the person seeking to introduce it can rely on an exception to the rule against hearsay evidence. The father does not purport to rely on any hearsay exception. He wants the court to rely on the information that his sons have conveyed to him.
[23] On the other hand, this evidence is permitted under Rule 14(19) of the Family Law Rules. This is after all, a Motion to Change. Rules 14(18) and 14(19) provide:
R. 14 (18) An affidavit for use on a motion shall, as much as possible, contain only information within the personal knowledge of the person signing the affidavit. O. Reg. 114/99, r. 14 (18).
R. 14 (19) The affidavit may also contain information that the person learned from someone else, but only if,
(a) the source of the information is identified by name and the affidavit states that the person signing it believes the information is true;
[24] The fact that this proceeding is a Motion to Change does not exclude it from the application of Rule 14 which deals with all motions. Moreover, the father has started this proceeding in a proper location and in accordance with Rule 5(1)(a) which permits him to do so in a municipality where "a party resides". He is clearly a party and resides in Sault Ste. Marie.
The Mother's Position
[25] The mother, while she has not responded in this court proceeding is aware of it. I infer this from the fact that the affidavit of service filed by the father confirms she was served with the Motion to Change by special service. She was also served with the affidavit evidence of the father so she is aware of the facts he is alleging. Moreover, she has advised the Family Responsibility Office that she does not agree that the father's support obligation has ended "as the children are attending full time school". This information is before the court in a letter dated February 1, 2018 from FRO to the father, which is filed as an exhibit to his affidavit. Why she has not provided this information, and more importantly details relating to it, to this court is a mystery. It is clear, however, that she disputes the father's factual allegations about the support entitlement under the 2014 support order.
[26] Although I am constrained by s.44 Family Law Act, I am sympathetic to the father who has filed some evidence with the court as to entitlement, something the mother has not done, but which was reasonably expected of her in the circumstances. On the other hand, it may be that her allegations expressed through the Family Responsibility Office are closer to the truth than are the father's allegations.
Court's Decision
[27] In the circumstances, I am making an order which is permitted under s.37 Family Law Act which suspends paragraph 1 of the support order of April 23, 2014. I am making this order on a temporary basis and not as a provisional order as follows:
Order to Go:
- That paragraph 1 of the order of Justice J.L. Pelletier dated April 23, 2014 is suspended on an interim basis effective May 31, 2018 until further order of this court or of another court of competent jurisdiction.
[28] On a provisional basis, and based on the evidence before me, I make the following final order:
Order to Go:
That paragraph 1 the support order of Justice J. L. Pelletier dated April 23, 2014 is terminated effective August 16, 2017.
That this is a provisional order only and has no force or effect unless and until confirmed by an appropriate court having jurisdiction and sitting nearest the place where the Motion to Change Respondent resides.
That a copy of both orders, and a copy of these Reasons are to accompany all other materials sent by this court to the confirmation court location.
That a copy of both orders as well as a copy of these Reasons are to be sent by the court office to the Director, Family Responsibility Office, quoting FRO Case No. 0610386 as a courtesy.
[29] The order of April 23, 2014 contained other provisions as I had outlined previously. These remain in full force and effect with respect to any arrears of child support. To clarify, the making of any orders by myself is not intended to trigger any obligation of the father to increase his payments on arrears by a CSG table amount beyond what he is currently obligated to pay. That will only be triggered if my order of termination is confirmed by another court.
[30] In the interim, my intention is to suspend paragraph (1) of the support order on an interim basis pending the decision of any confirmation court as to termination. It is also intended to prompt the mother to participate in this proceeding more responsibly than she has to date.
Released: May 24, 2018
Signed: "Justice John Kukurin"
Footnote
[i] This is a theme that has been the subject of past decisions, some of myself, which set out the problems inherent in proceeding under s.44 Family Law Act. These include: Cranston-Aube v. Stubbington, [2000] O.J. No 5511; Dyer v. Dempsey, [2002] O.J. No. 2244; Edwards v. Edwards, [2008] O.J. No. 656; Mahood v. Ducharme, [2004] O.J. No. 5272