Superior Court of Justice - Ontario

Court File No.: 2486/12
Date: 20121207

RE: Kristina Poltorak, Applicant

AND:
Wallace Arthur Fisher, Respondent

BEFORE: Ellies, J.

COUNSEL: T. Ross, Counsel for the Respondent

HEARD: November 13, 2012

REASONS FOR DECISION

[ 1 ] In this motion to change, Mr. Fisher seeks to vary an order made on June 22, 2010 by the Court of Queen’s Bench of Alberta, by virtue of which he was ordered to pay spousal support in the amount of $2,000 per month. Although I am sympathetic to Mr. Fisher, in my view the motion must fail because it was not brought under the Interjurisdictional Support Orders Act, 2002 , there is no evidence of service ex juris, and there is no real and substantial connection among the court, the parties, and the subject matter of the litigation sufficient to allow the court to assume jurisdiction under the Family Law Act.

The Nature of the Motion

[ 2 ] The motion to change was issued on May 11, 2012. The relief requested was originally that Ms. Poltorak, Mr. Fisher’s former common-law spouse, pay support to Mr. Fisher, as well as an order fixing the outstanding spousal support owed by Mr. Fisher under the Alberta order at an “unknown” amount, in addition to other ancillary relief relating to the production of documents from Ms. Poltorak. The proceeding was commenced under the Family Law Act (“FLA”), rather than under the Interjurisdictional Support Orders Act, 2002 (“ISOA”).

[ 3 ] On May 16, 2012 Whalen, J. ordered that the motion and supporting materials be served substitutionally on Ms. Poltorak by serving her mother via ordinary mail at an address in Sault Ste. Marie.

[ 4 ] No response was ever received and the matter proceeded on an uncontested basis.

THE EVIDENCE

[ 5 ] Mr. Fisher was the only witness called on the motion. He testified that, at the time he was served with the court documents which eventually led to the Alberta order, he was working for Kal Tire in Fort McMurray, on a full-time basis. However, in February of 2010, Mr. Fisher stopped working after he “flipped out” at his place of employment. He has not worked full-time since then. He is presently in receipt of disability income.

[ 6 ] Mr. Fisher did not retain counsel to deal with the court proceedings in Alberta. Instead, he attended court himself. In fact, he attended on the very date upon which the Alberta order was made. He explained to that court, as he explained to this one, that his T4 for the 2008 tax year inaccurately set out his income. In particular, he explained that the $145,150 set out in the T4 reflected an error that had been made by a previous employer who mistakenly issued a cheque directly to him (for retirement savings, I believe, although this was not made clear in the evidence), when the payment should have been made directly to a subsequent employer. The error meant that the money was incorrectly included in Mr. Fisher’s income. Because Mr. Fisher had stopped work as of the date the Alberta order was made, I am also assuming that he explained to the court that he was not currently employed.

[ 7 ] It is clear from the terms of the Alberta order that the court did not accept Mr. Fisher’s evidence. Instead, the court ordered that he pay spousal support in the amount of $2,000 per month.

[ 8 ] Mr. Fisher testified before this court that his income for the year 2010, the year in which the Alberta order was made, was only $64,073. This income included a payment out to him of some of his RRSP savings.

[ 9 ] Mr. Fisher’s income for 2011 was $49,492. This also included some RRSP income, as well as income received from his disability insurer. Although Mr. Fisher was uncertain, it would appear from his 2011 Notice of Assessment that Mr. Fisher’s disability income is not taxable. In any event, Mr. Fisher’s income is approximately $100,000 per year less than the income upon which the Alberta order was based.

[ 10 ] Following the hearing, I permitted counsel for Mr. Fisher to file a further affidavit and agreed to consider it as additional evidence in the hearing. In the affidavit, Mr. Fisher deposes that this is actually his second attempt to vary the order of June 22, 2010. His first attempt was made on July 5, 2010 in Alberta. That attempt failed when Mr. Fisher failed to attend the first court date set for it, although it does not appear that he was entirely at fault. He also deposes that the June 22 order was later varied by the court when an enforcement clause was added on July 19, 2010. Lastly, Mr. Fisher deposes that the (Ontario) Family Responsibility Office has begun enforcement proceedings with respect to the Alberta order, as a result of which fifty percent of his disability income is being garnished to satisfy that order.

ISSUE

[ 11 ] During the hearing of this matter, I raised the issue of this court’s jurisdiction to vary a spousal support order made in Alberta, other than pursuant to the ISOA. That act provides for the variation of support orders made in reciprocating jurisdictions and filed for enforcement in Ontario. Part IV deals with the variation of orders. Section 27(1) under that part provides that:

An applicant who ordinarily resides in Ontario and believes that the respondent ordinarily resides in a reciprocating jurisdiction may start a proceeding in Ontario that could result in a variation order being made in the reciprocating jurisdiction.

Alberta is a reciprocating jurisdiction.

[ 12 ] Section 27(2) then sets out the procedure to be followed by someone wishing to vary a foreign order. That procedure was not followed in this case.

[ 13 ] Counsel for Mr. Fisher advances two alternative bases, upon which this court may vary the Alberta order, namely:

(1) Rule 5(1)(a) of the Family Law Rules; and

(2) The Ontario Court of Appeal’s decision in Jasen v. Karassik.

ANALYSIS

Rule 5 of the Family Law Rules

[ 14 ] Rule 5(1)(a) provides that a case may be started in the municipality where a party resides. That Rule was enacted by regulation pursuant to section 68(1) of the Courts of Justice Act, which section reads:

Subject to the approval of the Attorney General, the Family Rules Committee may make rules for the Court of Appeal, the Superior Court of Justice and the Ontario Court of Justice in relation to the practice and procedure of those courts in proceedings (under pieces of various family law legislation).

[ 15 ] Counsel for Mr. Fisher argues that Rule 5(1)(a) permits this court to vary the order made by the Alberta Court of Queen’s Bench. With respect, I disagree. In my view, Rule 5(1)(a) is procedural only.

[ 16 ] Section 66 of the Courts of Justice Act is the analogous section pursuant to which the Rules of Civil Procedure have also been created. Section 68(2) (regarding the Family Law Rules) incorporates by reference the provisions of section 66(2) with respect to the scope of the authority of the Rules Committee. Section 66(3), which is also incorporated by reference into section 68, provides that nothing in section 66(1) or (2) authorizes the making of rules that conflict with an act.

[ 17 ] While it has been held that section 66(2) permits the Rules Committee to alter the substantive law, that power is restricted to specifically enumerated items (: K Mart Canada Ltd./K. Mart Canada Ltee. v. Milmink Investments Ltd. (1986), 1986 2841 (ON SC) , 56 O.R. (2 nd ) 422 (H.C.J.)). The only such item pursuant to which Rule 5(1)(a) could be enacted is clause (c) of section 66(2), which reads:

(c) commencement of proceedings, representation of parties and service of process in or outside Ontario;

[ 18 ] In my view, the wording of this clause is not broad enough to confer jurisdiction on an Ontario court to vary an Alberta order. In Muscutt v. Courcelles, 2002 44957 (ON CA) , [2002] O.J. No. 2128, a case to which I will make further reference, below, a similar issue arose with respect to Rule 17.02(h) of the Rules of Civil Procedure. This rule, sometimes referred to as the “damage sustained” rule ( Muscutt , paragraph 27 ), provides that an originating process may be served outside Ontario with respect to a claim as a result of which damage is sustained in Ontario. In Muscutt , the Ontario Court of Appeal held that Rule 17.02(h) was procedural only, and did not by itself confer jurisdiction (paragraph 48).

[ 19 ] In the course of reasons delivered on behalf of the court, Sharpe, J.A. made reference to other clauses in Rule 17.02. At the time, Rules 17.02(j), (k) and (l) provided for service outside of Ontario for support claims, claims for custody or access to a minor, and claims to declare a marriage invalid. He held (at paragraph 52) that:

Each of these claims has well-established legal standards governing jurisdiction that must be satisfied notwithstanding the fact that the defendant has been served in accordance with the Rule. In my view, the same conclusion follows for Rule 17.02(h), which must now be read as being subject to the real and substantial connection requirement.

[ 20 ] In my opinion, the same is true for Rule 5(1)(a) of the Family Law Rules.

The Power to Vary a Foreign Support Order under the Family Law Act

[ 21 ] Counsel for Mr. Fisher also relies on the decision of the Ontario Court of Appeal in Jasen v. Karassik, 2009 ONCA 245 . The court in that case held that the ISOA is not a complete code with respect to the variation of foreign support orders (see paragraphs 3 and 56). The court declined to follow decisions from British Columbia and New Brunswick and held, instead, that an Ontario resident may bring an application for support or for the variation of a support agreement that had been filed with the Ontario Court of Justice (“OCL”) under either the FLA or the ISOA. I see no distinction between the variation of a support agreement involving a person outside Ontario that has been filed under the FLA and the variation of a foreign support order filed with the OCJ for enforcement under the ISOA. The section of the FLA pursuant to which the agreement in Jasen was filed provides that, once filed, the agreement is to be treated for enforcement and variation purposes as if it was an order of the court. In my view, therefore, the decision in Jasen is as applicable to foreign support orders as it is to “foreign” support agreements that become orders by virtue of this provision.

[ 22 ] Although the ISOA is not a complete code with respect to the variation of foreign support orders, the court in Jasen also held that before a foreign support agreement can be varied by an Ontario court under the FLA, one of three things must be true, namely (paragraph 16):

(a) the out-of-province party is present in Ontario (“presence-based jurisdiction”) ;

(b) the out-of-province party consents (“consent-based jurisdiction”); or

(c) Ontario has a real and substantial connection to the matter being litigated and service ex juris has been properly effected.

[ 23 ] I am not satisfied that service ex juris has been properly effected in this case. I have already made reference to the order for substitutional service made by Whalen, J. In his recent affidavit, Mr. Fisher deposes that he assumes Ms. Poltorak must be doing well because she has never bothered to respond to his motion seeking to vary the Alberta order. However, as I indicated earlier, Mr. Fisher’s motion to change does not actually make explicit reference to a request to vary the ongoing order, but only requests relief with respect to the arrears. Furthermore, Mr. Fisher’s motion to change also asks that an order be made requiring Ms. Poltorak to pay support to him . In light of that request, I am unable to infer that Ms. Poltorak received the motion materials and is simply content to allow the Alberta order to be varied. It is just as likely that she did not receive actual notice of the motion to change.

[ 24 ] Even if service ex juris has properly been effected, I am also of the view that the connection between this court, the parties and the subject matter of the motion is insufficient to justify the court assuming jurisdiction, for the reasons that follow.

[ 25 ] The court in Muscutt developed a list of factors gleaned from the jurisprudence to be considered when determining whether there is a real and substantial connection. These include:

• the connection between the forum and the plaintiff’s claims;

• the connection between the forum and the defendant;

• unfairness to the defendant in assuming jurisdiction;

• unfairness to the plaintiff in not assuming jurisdiction;

• the involvement of other parties to the suit;

• the court’s willingness to recognize and enforce an extra-provincial judgment rendered on the same jurisdictional basis;

• whether the case is interprovincial or international in nature; and

• comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere.

[ 26 ] Muscutt was revisited, first by the Ontario Court of Appeal, and then by the Supreme Court of Canada, in Club Resorts Ltd. v. Van Breda, 2012 SCC 17 () , [2012] 1 S.C.R. 572. On behalf of the Supreme Court of Canada, Lebel, J. adopted the Ontario Court of Appeal’s move to a set of factors which presumptively allow a court to assume jurisdiction over a matter. However, like Muscutt, Van Breda dealt with the occurrence of tort outside of the territorial jurisdiction of the Ontario court and not with a foreign support order. In my view, then, Jasen has lost none of its precedential value as a result of the decision in Van Breda .

[ 27 ] The court in Jasen applied the Muscutt factors to the issue of jurisdiction and found that there was a real and substantial connection among the subject matter, the parties and the forum. In my view, however, considering the Muscutt factors in the case at bar leads to a different conclusion.

[ 28 ] Dealing with the first factor set out above, the court in Jasen found that there was a strong connection between the forum and the subject matter of the claim, which was an application to vary support for a child who had lived in Ontario since his birth (paragraph 19). That is not the case here.

[ 29 ] In my view, the connection between the forum and the moving party’s claim will be greater, all other things being equal, where a request is made to vary a foreign child support order as opposed to a request being made to vary a foreign spousal support order only. This was also the view of my colleague, R.D. Gordon, J., in Kaur v. Guraya, 2011 ONSC 2853 . In that case, a father sought an order dismissing a mother’s Ontario application for custody, access and child support. A Washington court had made an earlier order affecting custody and access, but not child support. In the course of deciding that the Muscutt factors favoured assuming jurisdiction, Gordon, J. held that:

If the mother was not eventually successful with respect to the issues of custody and access (leaving support as the only issue), she would be required to resort to the ISOA.

[ 30 ] The only connection between Ontario as a forum and Mr. Fisher’s claims are his presence here and the fact that the Alberta order is now being enforced in Ontario. Mr. Fisher’s presence in this jurisdiction is not, by itself, a sufficient basis for assuming jurisdiction ( Muscutt , paragraph 79 ). The fact that the Alberta order is being enforced here is also of little weight in the analysis, in my view, because the enforcement of the order will be affected to the same degree, regardless of whether it is varied by this court or by an Alberta court and then registered in Ontario.

[ 31 ] With respect to the second Muscutt factor listed above, the court in Jasen found that the responding father had attorned to the jurisdiction of the Ontario court (paragraph 17). Of course, that cannot be said in this case. There is no connection between Ms. Poltorak and Ontario.

[ 32 ] Considering the third and fourth Muscutt factors, the court in Jasen found that there would be some unfairness to the claimant mother if the Ontario court declined jurisdiction because she would be required to start another proceeding under the ISOA, if not in the jurisdiction in which the father resided. This is also true in the present case, as far as Mr. Fisher’s claim is concerned. However, in my view, that unfairness is counterbalanced by the unfairness to Ms. Poltorak, who would have been required to deal with this matter in Ontario if this court assumed jurisdiction and if proper service had been effected. It must be remembered that, regardless of Mr. Fisher’s present financial circumstances, the Alberta Court found that Ms. Poltorak was in need of support.

[ 33 ] The last of the Muscutt factors that I believe is relevant to the present motion is the fact that this case is interprovincial, as opposed to international, in nature. However, I do not view that fact, in light of my analysis with respect to the other factors referred to above, to be sufficient to justify this court assuming jurisdiction to vary the Alberta order.

CONCLUSION

[ 34 ] In my view, Mr. Fisher’s application must be brought under the Interjurisdictional Support Orders Act, 2002. Further, in support of the application, Mr. Fisher should obtain a transcript of the Alberta proceedings and a copy of the materials that were before the Alberta court. This may allow an Ontario court to find that there has been a material change in circumstances in a way other than relying on Mr. Fisher’s evidence, which, doubtless due to his present disability, was rather vague and unhelpful to his cause.

[ 35 ] For the foregoing reasons, the motion is dismissed, without prejudice to Mr. Fisher bringing a motion to vary under the appropriate legislation.

Ellies, J.

Date: 20121207