Court File and Parties

Date: January 25, 2018

Court File No.: D61787/13

Ontario Court of Justice

Between:

Vasanthini Sivarajah

Applicant

- and -

Sivanesan Mahathevar

Respondent

Counsel:

• Paul Steckley, for the Applicant (Responding Party)
• Minipreet Bhatia, duty counsel, for the Respondent (Moving Party)

Heard: January 24, 2018

Justice: S.B. Sherr

Endorsement

[1] This case illustrates the need for a Unified Family Court in Toronto.

Procedural Issues

[2] The Director, Family Responsibility Office (the Director) for the benefit of Vasanthini Sivarajah (the mother) has brought a notice of motion in this support enforcement case for a warrant of committal to issue, committing the Respondent, Sivanesan Mahathevar (the father) to jail for 36 days or until the sum of $21,937.24 has sooner been paid.

[3] The Director's motion is brought pursuant to subrule 30(9) of the Family Law Rules. It is returnable before me on March 19, 2018.

[4] The Director's motion for a warrant of committal is a result of the father's non-compliance with my Default order, dated October 19, 2016 (the Default order). The Default order was made, on consent, at a default hearing, pursuant to subsection 41(10) of the Family Responsibility and Support Arrears Enforcement Act (the Act).

[5] The default hearing had been held to enforce the final order of Justice Heather McGee, dated July 14, 2011 (the original order). The original order was made in the Superior Court of Justice, Family Court Branch, in Newmarket, Ontario (a Unified Family Court).[1]

[6] The original order provides that the father is to pay child support of $452 each month and spousal support of $1,034 each month to the mother.

[7] The father moved to change the original order at the Superior Court of Justice in Toronto in 2016. His motion to change was dismissed on May 16, 2016.

[8] The Default order provides that the father is to pay ongoing support of $1,486 per month, in addition to $500 per month on account of support arrears, together with a lump sum of $9,135.24. In default of any payment, the father is to be incarcerated for a period of three days for each and every default, to a maximum of 180 days.

[9] The father has now brought a motion to change his support obligations within this enforcement case. The first return date was in First Appearance Court on January 24, 2018.

[10] The father served the mother with his motion to change and her counsel attended at First Appearance Court. The parties asked to bring the matter before a judge and the case was heard at 2 p.m.

[11] The mother asked the court to dismiss the father's motion to change for lack of jurisdiction.

[12] The father's motion to change purports to change the Default order, but in reviewing it, the father is also asking to change the support terms in the original order. He confirmed in court that this was his intention.

[13] There are numerous procedural flaws with the father's motion to change.

[14] The Ontario Court of Justice does not have jurisdiction to change an order made in the Superior Court of Justice – it cannot change the original order. See: Dobert (McCullogh) v. McCullogh, 2008 ONCJ 673. If the father wishes to change the original order, he must bring his motion to change, on notice to the mother, in the Superior Court of Justice – the same way he brought his motion to change in 2016.

[15] After discussion, the court dismissed the father's motion to change the terms of the original order, without prejudice to his ability to bring a motion to change that order in the Superior Court of Justice.

[16] The court encouraged the father to obtain legal advice before bringing his motion to change the original order. The evidence provided in support of his motion to change brought in this court was sparse.

[17] The father's only remedy in the Ontario Court of Justice is to bring a motion to change the Default order pursuant to subsection 41(15) of the Act, which provides that the court may change a Default order if there has been a material change in the payor's circumstances.

[18] The father's motion to change the terms of the Default order had the following flaws:

a) He used the wrong style of cause. He used the style of cause from the Superior Court of Justice case, while using the file number in this enforcement proceeding. The applicant in the case before this court should be The Director, Family Responsibility Office, for the benefit of Vasanthini Sivarajah and the father should be the respondent.[2]

b) He improperly named the mother as a party and served her with his motion to change the Default order. The mother is not a party to an enforcement proceeding under the Act.

c) He failed to serve the Director with his motion to change the Default order. His motion to change the Default order is only between him and the Director.

d) He improperly sought to change the terms of the original order in his motion to change the Default order.

[19] After discussion, the father's motion was dismissed without prejudice to his ability to bring a proper motion to change the Default order in this court. Duty Counsel was asked to assist the father with preparing the proper paperwork. He should use the style of cause set out in subparagraph 18(a) above. The mother is not a party to the enforcement proceeding and should not be served with the court papers. The Director is a party and must be served. The father will need to provide the court with the necessary evidence to meet the legal test set out in subsection 41(15) of the Act.

[20] Once the father is ready to issue his motion to change the Default order, court staff should have the first court date returnable before me at the same time as the return of the Director's committal motion – March 19, 2018. The case is not to go to First Appearance Court.

Costs

[21] The mother seeks her costs of $750. The father opposes any costs order being made.

[22] The court has considerable sympathy for the father. He is self-represented and doesn't speak English well. He is not sophisticated. He believes that the support orders are too high and he wants a judge – any judge, to change them. It is not realistic to expect him to understand the jurisdictional nuances this case presents.

[23] The father's challenges were exacerbated by the fact that court staff accepted his motion to change, even though he used the wrong style of cause – the Director wasn't named as a party and the mother was improperly named as a party. He should have been referred to Duty Counsel for assistance.[3]

[24] Lastly, there wasn't a Tamil Interpreter present for the father at court.

[25] Although duty counsel attempted to explain the jurisdictional issues to the father, it is understandable why he wanted to see the judge before agreeing to have his motion to change dismissed. The father explained that he had been advised to file this motion by a duty counsel at this court whom he had previously consulted. This is possible – and it is also very possible that the father did not fully understand the advice given to him – the jurisdictional issues are complicated.

[26] Unfortunately, the mother had to incur the cost of paying a lawyer to come to court on January 24, 2018 to respond to the motion to change and raise the procedural issues. Counsel had to wait until 2 p.m. to have the case heard. The mother should not have to bear all of these costs.

[27] This case demonstrates some of the difficulties that arise when a support payor is involved in a proceeding in the Ontario Court of Justice to enforce an order made in the Superior Court of Justice. It is confusing and costly for the litigants who just want a judge to decide their case. These problems don't arise when the Ontario Court of Justice is enforcing its own orders or at Unified Family Court locations, where the court also enforces its own orders. The judge can deal with the enforcement case together with the motion to change support case to ensure a timely, cost-effective and just process.

[28] Given these circumstances the court orders that the father shall pay the mother's costs in the amount of $400, payable in 30 days.

[29] Court staff are requested to send a copy of this endorsement to the parties and to the Director's Legal Department. A Tamil interpreter will be required at all court appearances in this matter.

Released: January 25, 2018

Justice S.B. Sherr

Footnotes

[1] Since the mother and father subsequently moved to Toronto the enforcement proceeding was brought in this court. See: Subrule 5(5) of the Family Law Rules which sets out where all steps in the enforcement of a payment order shall take place.

[2] The court is using the improper style of cause used by the father in this endorsement only for ease in identifying the parties who were involved at this appearance.

[3] The court recognizes that these jurisdictional issues are very complicated. It is understandable that they pose challenges to not only court staff, but also for many lawyers.