ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: 5504/13
Date: 20130621

B E T W E E N:

ANNICK LAVIGNE

Kathryn Pirie, for the Applicant

Applicant

• and -

STEPHANE CYRENNE

No one appearing for the Respondent

Respondent

Heard: June 21, 2013

REASONS

WILCOX, J.

[1] This is an application under the Inter-Jurisdictional Support Orders Act (ISOA) for a child support order against the Respondent. The Applicant is in Ontario and the Respondent is in the Province of Quebec. There are no existing child support orders in this matter. Therefore, ISOA Part II, particularly sections 5 and 6 apply. As, I am advised, the Province of Quebec is a reciprocating jurisdiction that requires provisional orders in such matters, section 7 would also apply. Rule 37(24) of the Family Law Rules would then be applicable, as would O. Reg. 55/03, sections 2 and 5.

[2] The Application has attached to it excerpts from statutes and other legal authorities or has highlighted sections of these on which it is purportedly based. Starting with the Family Law Act, while section 33 is and, to some extent, sections 34 and 38.1 might be relevant, section 44 is not, as appears from subsection 1. Sections 5 and 6 of ISOA are highlighted, which is appropriate, but section 7 is not highlighted. I suggest that it should be. Family Law Rule 37 is enclosed in full with some subsections highlighted. These include subsections 3 and 16 which appear to be relevant not to this case, but to cases where the Applicants are outside Ontario and the Respondents are in Ontario. The irrelevant sections and highlights might cause confusion when the documents are considered by the reciprocating jurisdiction, the Province of Quebec, and, so, should be removed. It would be advisable to add excerpts from the Ontario Child Support Guidelines dealing with the Applicant’s claim for monthly support and for special or extraordinary expenses.

[3] The Application includes a claim for the child support table amount of child support monthly from August, 2011, the date of separation. The quantum appears to be based on the child support table for Ontario. Subsection 3(3) of the Federal Child Support guidelines indicates that the child support table for the Province of Quebec would be the one to use. This case did not involve a marriage, so the Ontario, not the federal Child Support Guidelines would apply. The Ontario ones generally follow the federal ones, but do not appear to contain that provision. Nevertheless, the Application should be amended to claim the amounts indicated by the table for the Province of Quebec, keeping in mind that they were updated as of December 31, 2011, changing the monthly support amount about five months post-separation. That would also affect the Applicant’s calculation of arrears which was based on the Ontario child support table amount. If this is not done, the court in the Province of Quebec could be expected to reject or at least revise the provisional order.

[4] The evidence of the Respondent’s income is limited to the Applicant’s recollection of approximately what the Respondent earned pre-separation and her belief that he is still working at the same employer as an auto mechanic. In effect, the Applicant is asking the court to impute income to the Respondent. In that situation, Form F under ISOA, the Request for Support Order – If Respondent Does Not Provide Financial Information, is required.

[5] The Applicant has also claimed special expenses for child care, as well as for health related expenses said to total about $5,000 per year. The copies of documents allegedly supporting this are not all legible, nor are they summarized in an easily understandable format to support the quantum alleged. It is not clear if the expenses claimed are all justified, and whether they have been incurred each year since separation and there are arrears. Furthermore, it is not clear if any such arrears are being claimed, or if the Application is only for these expenses going forward. Nor is there anything to show the amounts that the Applicant alleges have been received from other sources towards these expenses.

[6] The court is being asked to make an order without notice, albeit a provisional one, based solely on documents filed. The court is necessarily relying on the information provided by one side, without the benefit of hearing the other side and without an opportunity to get clarification. It is important, therefore, that the Application be as clear and complete as possible. If the provisional order is clearly supported by the evidence, there will be less chance that the matter will be sent back by the confirming jurisdiction for further evidence, drawing out the proceedings.

[7] For these reasons, the Application is dismissed without prejudice to a further one being filed taking into account the comments above.

Justice James A. S. Wilcox

Released: June 21, 2013