Court File and Parties

Date: December 16, 2024 COURT FILE NO. 16-14666-01 ONTARIO COURT OF JUSTICE TORONTO

B E T W E E N:

A.E. APPLICANT

DANNY M. BERTAO, for the APPLICANT

- and – W.D. RESPONDENT

DID NOT ATTEND

HEARD: DECEMBER 10, 2024 JUSTICE J. HARRIS

Endorsement

Part One – Introduction

[1] The Applicant (the “Mother”) brought this application for information, pursuant to section 7 of the Family Orders and Agreements Enforcement Assistance Act (Canada) (the “FOAEAA”) in relation to establishing a child support order, which is made within her Application, issued May 14, 2024, (“Application”) for child support for the parties’ child.

[2] The Respondent (the “Father”) was found in default on October 25, 2024.

[3] The Mother filed an Affidavit, sworn December 9, 2024, that sets out the reasons for the making of the Application under section 7 of the FOAEAA.

[4] The Affidavit was served by email on the Father on December 9, 2024 at 6:29 p.m., according to the Lawyer’s Certificate, sworn December 10, 2024, which contained the email serving the Affidavit with an explanation and reminder that the court hearing was scheduled for the following day.

[5] Counsel for the Mother indicated to the court that he had spoken with the Father and the Father had indicated that he planned to attend court today. Counsel for the Mother advised the court that the Father had indicated a similar intention previously but failed to attend court. Today, the Father was paged by the court clerk three times at 11:31 a.m., 1:45 p.m. and 3:15 p.m. but the Father did not attend court in-person or virtually, as the ZOOM link was checked. The Father did not leave any messages with the court staff or duty counsel.

[6] The Mother seeks an order authorizing a court official to make an application to the Minister of Justice (the “Minister”) under section 12 of the FOAEAA to search for and release to the official the following information that can be found in federal information banks designated under section 2 of the Release of Information for Family Orders and Agreements Enforcement Assistance Regulations SOR/2023-125 (the “Release Regulations”):

a) The name and address of the Father’s employer; and b) The information related to the Father that is set out in his Income Tax and Benefit Return, including the schedules, other than his Social Insurance Number from 2018-2023.

[7] The Mother served and filed the “Affidavit in support of the Application under section 7 FOAEAA” and the draft “Order under section 10 FOAEAA Establish or Change Support”, which are available on the Ontario Family Law Rules Forms website: https://ontariocourtforms.on.ca/en/family-law-rules-forms/family-orders-and-agreements-enforcement-assistance-act-foaeea-forms/

[8] Unfortunately, the forms pre-date the important and expansive changes to the Release Regulations that came into force on November 15, 2024. As a result, the forms appear to preclude the Applicant from requesting the release of information that is set out in the documents listed in subparagraphs 5(1)(c)(ii) to (xxiv) of the Release Regulations.

Part Two – Brief background

[9] The Mother has sole custody of the child by Final Order, dated March 27, 2017.

[10] According to the Mother, on or about May 1, 2018, the parties agreed that the Father would advise her when he obtained employment. However, the Father has never advised the Mother when he found employment and he has not paid any child support, except for one payment of $100.00. The Father has never provided any financial disclosure. The Mother believes the Father has obtained employment.

[11] On May 14, 2024, the Mother’s Application was issued seeking child support from the Father. She sought child support to start on June 1, 2018. She also sought disclosure of the Father’s annual income tax returns and notices of assessment starting in 2018.

[12] On June 29, 2024, the Father was served with the Application and the Form 8.01 Automatic Order, which states that the Father must serve a copy of his personal income tax returns and notices of assessment for the three most recent years.

[13] On August 21, 2024, the Father did not attend the First Appearance before the court clerk.

[14] A case conference was scheduled for October 25, 2024. The Father did not file any responding case conference materials and did not attend the case conference. As a result, on October 25, 2024, the Father was noted in default. The Father was ordered, as follows:

a. on a temporary without prejudice basis, to pay monthly child support to the Mother in the amount of $313 based on an imputed minimum wage income for the Father; and b. to provide financial disclosure within 30 days, which includes the Father’s personal income tax returns and notices of assessment from 2018 to 2023.

[15] On October 25, 2024, Mother’s indicated the intention to bring a motion for disclosure of the Father’s tax returns from the Canada Revenue Agency, prior to setting the matter for an uncontested trial, if the Father failed to comply with the court’s disclosure orders.

[16] The matter was adjourned to this date for the Mother’s disclosure motion. All of this information was contained in the court’s endorsement, dated October 25, 2024, and sent by the court to the Father by email on October 25, 2024 at 10:40 a.m.

[17] The court is satisfied that the Father has been notified about the disclosure and child support issues before the court and the Father has decided not to file materials, not to attend court, and not to comply with court orders for his financial disclosure.

Part Three – The FOAEAA

3.1 Amendments to the FOAEAA and the Release Regulations

[18] On November 15, 2023, the amendments to the FOAEAA, and the Release Regulations, with certain exceptions, came into force to permit the search of certain federal databases for the purposes of providing information about a person’s whereabouts and their income. The amendments to the FOAEAA expanded the circumstances under which a search of these federal databases is permissible.

[19] As published in the Canada Gazette, the FOAEAA amendments were aimed at:

• promoting the best interests of the child;
• helping to reduce child poverty; and
• making Canada’s family justice system more accessible and efficient. [1]

[20] Section 7 of the FOAEAA provides the basis for the court to establish a support provision:

Application to court

7 Any person, body or service that is seeking to have a support provision established or varied or that is entitled to have a family provision enforced may, on application, which may be made ex parte, request that a court authorize an official of the court to make an application under section 12.

[21] A support provision is defined in subsection 2(1) of the FOAEAA as follows:

support provision means a provision of an order for maintenance, alimony or support.

[22] Section 8 of the FOAEAA states as follows:

Contents of application — establishment or variation of support provision

8 (1) The application under section 7 in relation to the establishment or variation of a support provision must be accompanied by

(a) an affidavit that sets out the reasons for the making of the application; and (b) in the case of an application in relation to the variation of a support provision, a copy of the order that contains the support provision.

[23] Section 10 of the FOAEAA provides the court with the ability to make an order authorizing a court official to make an application under section 12 of the FOAEAA to obtain information from the Minister to establish a support provision. Section 10 of the FOAEAA reads as follows:

Authorization

10 A court seized of a valid application under section 7 may make an order in writing authorizing an official of the court to make an application under section 12, if the court is satisfied,

(a) that the sole purpose of the application is to obtain information for the establishment or variation of a support provision or the enforcement of a family provision; (b) that the order is not likely to jeopardize the safety or security of any person; and (c) in the case of an ex parte application, that the steps referred to in paragraph 8(2)(a) or paragraph 9(2)(a), as the case may be, have been taken.

[24] Section 12 of the FOAEAA reads as follows:

Application for release of information

12 (1) An official who is authorized to do so under section 10 may apply to the Minister, in the time and manner prescribed by the regulations, to have the information banks searched in order to release the information prescribed by the regulations to the official.

[25] On November 15, 2023, the Release Regulations came into force, including under subparagraph 5(1)(c)(i), release of information set out in a person’s Income Tax and Benefit Return (T1), including the schedules.

[26] However, on November 15, 2024, additional provisions of the Release Regulations came into force, which included, among others, an expanded list under subparagraph 5(1)(c), as follows:

5(1)(c) the information related to the person named in the application for the release of information — other than their Social Insurance Number — that is set out in their

(i) Income Tax and Benefit Return (T1), including the schedules, (ii) Notice of Assessment and Notice of Reassessment, (iii) Statement of Trust Income Allocations and Designations (T3), (iv) Statement of Remuneration Paid (T4), (v) Statement of Pension, Retirement, Annuity, and Other Income (T4A), (vi) Statement of Old Age Security (T4A(OAS)), (vii) Statement of Canada Pension Plan Benefits (T4A(P)), (viii) Statement of Distributions from a Retirement Compensation Arrangement (RCA) (T4A-RCA), (ix) Statement of Employment Insurance and Other Benefits (T4E) or Statement of Employment Insurance and Other Benefits (Quebec) (T4EQ), (x) Statement of Employee Profit-Sharing Plan Allocations and Payments (T4PS), (xi) Statement of Income from a Registered Retirement Income Fund (T4RIF), (xii) Statement of RRSP Income (T4RSP), (xiii) Statement of Investment Income (T5), (xiv) Statement of Real Estate Rentals (T776), (xv) Statement of Employment Expenses (T777), (xvi) Government Service Contract Payments (T1204), (xvii) Statement of Farming Activities (T2042) and documents related to the AgriStability and AgriInvest programs, (xviii) Statement of Fishing Activities (T2121), (xix) Statement of Business or Professional Activities (T2125), (xx) Declaration of Conditions of Employment (T2200), (xxi) Statement of Benefits (T5007), (xxii) Statement of Securities Transactions (T5008), (xxiii) Statement of Partnership Income (T5013), and (xxiv) Statement of Contract Payments (T5018); and

3.2 Release of Information Under the FOAEAA

[27] Section 13 of the FOAEAA provides that the information requested is to be provided to the court official who will give the information to the court. The information shall be sealed. The court may disclose the information to whom it considers appropriate and may make any order to protect the confidentiality of the information. These measures reduce the risk of inadvertent or unauthorized disclosure and to ensure the safety, security, and privacy rights of the person whose information is released.

[28] Section 13 of the FOAEAA reads as follows:

Information given to court

13 (1) If information is released under this Part to an official who is authorized under section 10 to apply for the release under section 12, the official shall give the information to the court that granted the authorization.

Marginal note: Sealing of information

(2) The information received by the official and subsequently given to the court shall be sealed and kept in a location to which the public has no access.

Marginal note: Disclosure of information

(3) The court may, for the purpose of establishing or varying a support provision or enforcing a family provision, disclose the information to any person, service or body or official of the court that it considers appropriate and may make any order to protect the confidentiality of the information.

Part Four – Analysis

[29] This application was made on notice, albeit short notice, to the Father, and is not ex parte.

[30] The Father was aware at this appearance the Mother would be seeking disclosure of his income tax returns and the information contained therein.

4.1 The evidence in support of the application

[31] The first step in the analysis is to determine if the Mother has provided the required evidence set out in section 8 of the FOAEAA.

[32] The Mother’s evidence establishes that:

a. the parties’ child resides primarily with her; b. she is seeking to establish child support that accurately reflects the Father’s true income; c. the Father has not voluntarily provided any financial disclosure about his income or employment; and d. the Father has not complied with court orders to disclose his income.

[33] The court finds that the Mother has set out the sufficient reasons for the making of the application under the FOAEAA so as to establish an accurate child support order.

4.2 Section 10 of the FOAEAA

[34] The second step in the analysis is for the court to determine if it should make an order under section 10 of the FOAEAA to authorize a court official to make an application to the Minister pursuant to section 12 of the FOAEAA.

[35] The court is satisfied, as required by section 10 of the FOAEAA, that the sole purpose of the application is to obtain information for the establishment of a support provision.

[36] Under Section 10 of the FOAEAA the court must be satisfied that the order will not jeopardize the safety and security of the Father or any other person.

[37] There is no evidence that the Mother poses a safety or security risk to the Father or that the safety or security of any person will be jeopardized. The court finds this order will not jeopardize the safety and security of the Father or any other person.

[38] The third step applies to ex parte (without notice) applications, which does not apply to this application because it was not ex parte.

4.3 Confidentiality and Section 13 of FOAEAA

[39] Once the court has determined that an order should be made for the release of information, it must then conduct an analysis to determine if the court should make confidentiality orders regarding the information received from the Minister over and above those required in section 13 of the FOAEAA.

[40] The court will defer its decision on this issue until after it receives and reviews the information received from the Minister through the court official.

[41] In C.W. v. S.C., 2024 ONCJ 511, the court considered the release of a mother’s address information for the enforcement of a parenting provision under the FOAEAA and the Release Regulations. Justice Sherr held at paragraph 47:

It is common practice for courts to vet information from third parties and weigh privacy concerns prior to determining what information should be released and whether any conditions should be attached to their release: Godwin v. Bryceland 2008 ONCJ 495, [2008] O.J. No 4039 (OCJ); Samson v. Simard 2008 NSSC 87. Potential restrictions could include:

a) Not releasing the information to the father and his counsel. Instead, the court could order that the court documents be sent to the Sheriff to be served on the mother at an address provided in the information. b) Only releasing the information to the father’s counsel, or to anyone assisting her. c) The information be inspected but not copied. d) The use of the information be restricted to the litigation. e) Publication bans. f) The information be returned or destroyed at the end of the litigation. g) Only part of the information be produced.

[42] In C.W. v. S.C., 2024 ONCJ 511, Justice Sherr held, as follows, at paragraph 48:

The court will take a cautious approach regarding the confidentiality issue. This is a new process and the court does not know how much detail will be provided to the court official by the Minister… Depending on what information is received from the Minister, the court may invite further submissions at that time.

Part Five – Conclusion

[43] The court is satisfied that the sole purpose of the application is to obtain information to establish a support provision and that the order is not likely to jeopardize the safety or security of any person.

[44] The court will make this order in accordance with the draft order filed by the Mother, which will include the Father’s full name and date of birth. The draft order, which is based on the precedent forms from the Ontario Court Form website does not include the expanded information available under the Release Regulations, which came into force on November 15, 2024. Therefore, this order is made without prejudice to the Mother making a further application for information set out in the Father’s Notice of Assessments or other information under the Release Regulations under subparagraphs 5(1)(c)(ii) – (xxiv), and 5(1)(d).

[45] The court notes that it would be very helpful to litigants seeking child support (many of whom are self-represented) and the court, if the precedent forms were updated to include the recent provisions that came into force expanding the available information that may be sought and released under FOAEAA to include everything that is listed in the Release Regulations at subsection 5(1)(c), as opposed to what the forms currently includes which is only 5(1)(c)(i), specifically a person’s Income Tax and Benefit Return (T1), including the schedules.

[46] This court orders:

a) the court official is authorized to make an application to the Minister under section 12 of the FOAEAA to search for and release to the official the following information that can be found in federal information banks designated under section 2 of the Release of Information for Family Orders and Agreements Enforcement Assistance Regulations, SOR/2023-125: i. the name and address of the Father’s employer; and ii. the information set out in the Father’s Income Tax and Benefit Return, including the schedules, other than his Social Insurance Number. b) Pursuant to subsection 13(2) of the FOAEAA, the information received by the court official and subsequently given to the court shall be sealed and kept in a location to which the public has no access. c) Pursuant to subsection 13(3) of the FOAEAA, at this time, the information released to the court official shall be given to the court. Once the court reviews the information, it will determine whether further provisions regarding disclosure and confidentiality of the information.

[47] The court official should send to the Minister a copy of this endorsement, together with a copy of the issued order.

[48] Costs of this motion are reserved.

[49] The court will advise the parties once it receives the requested information and whether further submissions will be required regarding the release of the information.

[50] This matter will return to court on February 27, 2025, at 12:45 p.m., by videoconference, to be spoken to.

[51] The matter has also been tentatively scheduled for an uncontested trial on March 27, 2025, at 11 a.m. in-person.

[52] Courts administration is requested to send by email a copy of this decision to the Father and counsel for the Mother.

Released: December 16, 2024

Justice J. Harris

[1] Canada Gazette, Part II, Volume 157, Number 13, online: https://www.gazette.gc.ca/rp-pr/p2/2023/2023-06-21/html/si-tr19-eng.html