SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: DFO-11-1-8589-A3

DATE: 20130312

RE: Cristina Hatton, Applicant

AND:

Timothy Hatton, Respondent

BEFORE: Czutrin J.

COUNSEL:
Plaintiff – Un-Represented

Respondent – Un-Represented

HEARD: File Review: No One Attended

ENDORSEMENT

[1] This case came to my attention when court staff began to process this file that was transferred to this court on February 11, 2013 by a judge of the Ontario Court of Justice (“OCJ”) at 311 Jarvis Street, Toronto.

[2] On February 11, 2013, the judge concluded that the OCJ had no jurisdiction to entertain a motion to change although the same judge on December 10, 2012, granted orders on consent of both parties pursuant to an executed consent.

[3] The case had been previously transferred from the OCJ in Brampton to the OCJ at 311 Jarvis Street pursuant to an order of a judge of that court in Brampton on June 28, 2011.

[4] The court file transferred from the OCJ had a file number 362/03. I am uncertain whether the file was merely a default or a default and a motion to change. No court orders of any court appear to have been made prior to the filing of the parties Separation Agreement that will be referred to.

[5] The Clerk of the Court in Brampton advised that all original documents including the endorsement records were enclosed.

[6] I saw no endorsement records.

[7] Mr. Hatton filed a Motion to Change on Form 15 issued by the OCJ at 311 Jarvis Street on July 6, 2012 with the first court date scheduled for August 27, 2012 at 9:30 AM.

[8] Mr. Hatton’s Form 15 identifies that he is seeking to change to an agreement for support between the parties dated April 15, 2002 and filed with the court on March 11, 2003. He makes no reference to any Superior Court orders concerning support.

[9] The court file included a Form 26B dated December 30, 2002 and signed by Cristina Hatton. I note that in naming the court and court address it indicates the Family Court of the Superior Court of Justice and originally has 114 Worsley Street, Barrie and then corrected to 7755 Hurontario Street, Brampton. Although the court is described as the Family Court of the Superior Court of Justice, the form is sealed by the OCJ in Brampton and I note that the date stamp shows filed March 11, 2003 at the OCJ, Brampton.

[10] Buried within Volume I of the transferred Continuing Record from 311 Jarvis Street is an order of the Superior Court of Justice in Brampton dated July 8, 2004 with a completely different file number from the file numbers I have described up until now. This file number is FS-03-048304-00. I am unable to tell whether this was a separate action on certain discrete issues between the parties and am unable to tell what happened, if anything, at the OCJ in Brampton as a result of the Form 26B filed in 2003. The filing of the Separation Agreement appears to have been done to either enforce or change the agreement as provided under s. 35 of the Family Law Act or both:

35. (1) A person who is a party to a domestic contract may file the contract with the clerk of the Ontario Court of Justice or of the Family Court of the Superior Court of Justice together with the person’s affidavit stating that the contract is in effect and has not been set aside or varied by a court or agreement. R.S.O. 1990, c. F.3, s. 35 (1); 2006, c. 1, s. 5 (2); 2006, c. 19, Sched. C, s. 1 (2, 4); 2009, c. 11, s. 32 (1).

Interpretation

(1.1) For the purposes of subsection (1), a party to a domestic contract includes a party’s guardian of property or attorney for property, if the guardian or attorney entered into the domestic contract on behalf of the party under the authority of subsection 55 (3). 2009, c. 33, Sched. 2, s. 34 (3).

Effect of filing

(2) A provision for support or maintenance contained in a contract that is filed in this manner,

(a) may be enforced;

(b) may be varied under section 37; and

as if it were an order of the court where it is filed. 1997, c. 20, s. 5; 2006, c. 1, s. 5 (3).

[11] The Separation Agreement contained within the Continuing Record is stamped as received and filed at the OCJ in Brampton, Ontario but the agreement that I saw was missing pages as it goes from paragraph 3 on page 1 to paragraph 8 and following without numbered pages. While the Separation Agreement ( to the extent I saw it) deals with four children with the husband agreeing to pay $1,100 per month for child support and that they are primarily residing with their mother has no other provisions concerning the children that I can determine.

[12] The July 8, 2004 order of the Ontario Superior Court of Justice does not fix the level of child support but fixes arrears of child support at $6,400 for the period from December 2002 until May 2003. It was the discovery of this order that resulted in the OCJ judged last dealing with this concluded that the OCJ had no jurisdiction.

[13] The Superior Court order gives me some hints that this order may have been an order made as part of the Divorce Application, but there is no specific child support amount ordered although there is a reference to life insurance and a previous order of another judge of the Superior Court of Justice and provides that the Respondent’s Answer was being withdrawn at the same time the setting of the amount in default. (I did get a copy of the previous order referred to.)

[14] No reference is made to this order in the Motion to Change Form 15 or in the Reply or in the response to the Motion to Change dated August 16, 2012.

[15] On December 10, 2012, it appears that both parties attended at the OCJ at 311 Jarvis Street and executed their consent to an order, part final and part temporary.

[16] The consent identifies a change to a Separation Agreement dated April 15, 2012. They again make reference t the Separation Agreement and agree to terminate support as of July 1, 2009 for the eldest children.

[17] They agreed to suspend child support on a “without prejudice” basis for the period of December 14, 2012 until February 11, 2013 when they were going to return to court. There was disclosure ordered that included an up-to-date Financial Statement and a 2012 Income Statement. The Family Responsibility Office (“FRO”) was also to produce an up-to-date Arrears Statement. The judge endorsed an appearance memorandum of December 10, 2012, and made an order pursuant to the consent, and adjourned the matter to February 11, 2013 at 10 AM.

[18] On the return date, counsel appeared for the FRO, Mr. Hatton appeared with Duty Counsel, but Ms. Hatton was not present.

[19] The February 11, 2013 endorsement provides the reasons why the case was transferred here. Based on the material before me, it is understandable why the judge may have transferred the case here. However, it is also understandable why the clerk here brought this to my attention and suggested that we reject the transfer and send it back. I cannot, based on the material before me, determine whether we are the proper court to consider the father’s request to change. I am unclear whether a Superior Court judge made a support order or merely fixed arrears and if the Superior Court ever properly took jurisdiction.

[20] The parties deserve an opportunity to both address the court and for another judge to consider the jurisdiction again. This would not be an issue if there was a Family Court of the Superior Court in Brampton or in Toronto.

[21] In reading the February 11, 2013 endorsement, the OCJ quite properly noted that the default case had been properly transferred from Brampton to 311 Jarvis Street. While a UFC (Family Court of the Superior Court of Justice) and the OCJ both have jurisdiction over default matters, and any enforcement or variation arising from a filing of a domestic contract, the Ontario Court of Justice has no jurisdiction to change an order of a Superior Court Judge. Unlike my colleague, who came to the conclusion that a Superior Court Judge had on July 8, 2004, made an order (fixing arrears) and as such what is now sought is a variation of her order, I am, on the material, unable to conclude whether as a result the current Motion to Change arises from that order (assuming the Superior Court had jurisdiction), or whether what the Motion to Change that the father is currently seeking still arises from the original filing of the Separation Agreement by the mother.

[22] Therefore, and regrettably for a judge of this court to consider the issue, the complete files from the Superior Court in Brampton and the OCJ in Brampton, and the complete file from the OCJ at 311 Jarvis Street must be brought here and a case conference arranged before me so that we might assist the parties to address jurisdiction and, if possible, resolve the issues. At the same time, the disclosure orders made as part of the default and, additionally, not to delay the matter further, disclosure for any period sought to be change is to be exchanged, including Tax Returns for the years sought to be changed and a current Financial Statement for both parties. If there are any section seven expenses, both parties are to produce Financial Statements and Tax Returns for the relevant years. If any children are still dependents and over 18, then their income and proof have to be produced with proof of section seven expenses.

[23] The parties should consider attending at the Mediation Services or with a Dispute Resolution Officer. If there is any money owed as a result of an assignment, the appropriate Ministry needs to be involved.

[24] The endorsement is to be sent to both parties and staff will ask for the transfer of all files (except default files unless a Motion to Change arose from the filing) to this court and parties may arrange a date before me for the conference when ready.

Czutrin J.

Released: March 12, 2013