SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FC-13-043379
DATE: 20140109

RE: Xiaolian Li, Applicant

AND:

Yigang Pan, Respondent

BEFORE: The Honourable Mr. Justice R. Kaufman

COUNSEL:
Applicant not present and unrepresented
Respondent present and unrepresented
K. Kizoff for the Director of the Family Responsibility Office

HEARD: January 8, 2014

Ruling on motion

[1] By way of background, the parties were married on February 10, 1982. There is one child arising from the relationship who is now 19 years of age. The parties were divorced by an order dated September 15, 1999 in the circuit court of the State of Oregon for Lane County in the United States.

[2] Pursuant to the terms of the judgment, the respondent father is required to pay the sum $10,000.00 annually in equal monthly instalments of $835.00 per month for the support of the child until the child attains the age of 27 years or is no longer a full time student, whichever event occurs first. In addition, the respondent shall pay to the petitioner a further sum of $10,000.00 annually in monthly instalments $835.00 on behalf of the child which funds are to be deposited into a jointly held account held by the applicant mother and child to be used for his education and personal benefit. Those payments are now at an end. The respondent is also required to pay to the applicant the sum of $35,000.00 annually in spousal support regardless of her future employment or marital status, such payments to be made by monthly instalments of $2,917.00 per month.

[3] It would appear from the time of the judgment on October 15, 1999 until sometime in 2012, the respondent paid the funds directly to the applicant, in American currency. It should be noted that the applicant now resides in Vancouver, Washington and the Respondent now resides in the Province of Ontario.

[4] The judgment was received in Ontario pursuant to the provisions of the Interjurisdictional Support Orders Act, 2002 “(Act)” and registered as an order of the court on September 27, 2011.

[5] The Respondent commenced a motion to change in this court in 2013. The basis of his motion to change is that pursuant to section 44 of the Act, the clerk is required to convert the amount of support ordered in the foreign jurisdiction into Canadian currency in accordance with the Regulations. Section 18 of the Regulations requires the clerk to utilize the exchange rate in existence at the date on which the foreign judgement was made. In 1999, the exchange rate was 1.475: factoring in the bank charges, in essence, the payor is paying approximately 50% more than contemplated. His material indicates that to comply with the $35.000.00 judgment in US dollars, he is required to pay $52,238.00 Canadian dollars. He suggests that if the exchange rate was implemented as at the time the foreign judgment was registered in Ontario, he would then be required to pay $35,667.00 Canadian dollars which would be $35,507.00 US dollars based on the exchange rate at the date he commenced the motion to change. He suggests to the court that that amount is much closer to the $35,000.00 in US funds as required by the divorce judgment. His solution is that the court utilize the exchange rate from the date the order was registered in Ontario and that it be adjusted on a yearly basis such that at the end of the year a determination can be made if he has either under paid or over paid the amount ordered in the foreign jurisdiction. He proposes that when the total annual amount paid in Canadian dollars based on the annual exchange rate from the Bank of Canada is less than the amount specified in the foreign judgment, he would pay the difference within 30 days: when the total amount paid on the same basis is more than the amount specified in the foreign judgment, he would be refunded the overpayment within 30 days.

[6] The respondent subsequently amended his application wherein he apparently deletes the request that the court utilize the exchange rate from the date that the order was registered in Ontario and simply suggests that he be ordered to pay $36,575.00 in Canadian funds which is the approximate equivalent of $35,000.00 in US funds.

[7] The applicant has filed a response to the motion to change in which she alleges that on the date of her response, the child support arrears owing of $206,557.45 and spousal support arrears of $35,131.46. The basis of her calculations is that she has utilized the Bank of Canada rate in effect on September 15, 1999, the date of the foreign judgment. As an aside, it would appear that when the foreign judgment was registered in Ontario the son, currently 29 years of age was no longer entitled to child support.

[8] On September 24, 2013 the parties appeared before the first appearance clerk as required on a motion to change. Justice McGee took the matter in as a Case Conference and correctly stated that the Motion pertained to one narrow issue, the currency rate to apply to the enforcement of an extra-territorial support agreement. She noted that neither party still resides in that jurisdiction. As the matter had been conferenced, leave was given to the parties to bring a motion.

[9] The precise motion before the court is at volume 1 tab 9 of the Continuing Record wherein the respondent seeks an order requiring him to pay $36,575.00 in Canadian funds a year which is the current equivalent of $35,000.00 in US funds. He bases this on the average exchange rate of the most recent five years from the Bank of Canada. He asks that this amount be implemented from the date the payment was enforced by the Family Responsibility Office. He also suggests that as the exchange rate fluctuates, if the sum of $36,575.00 is less than the equivalent of the amount required under the foreign order, he will make up the difference within 30 days of the following year. Similarly, if it is determined that he has overpaid, the difference would be carried forward as a credit to the following year.

[10] In response to the motion, the applicant has filed a 14b motion form asking that the respondent’s motion be dismissed with costs and asking the court to make a support deduction order for spousal support equivalent to $51,644.88 per annum with arrears set in the amount of $52,345.74 and with the sum of $3,053.44 for costs on the basis that the motion and the motion to change deal with the same issue. It may well be that the applicant is somewhat confused by the fact that the motion to change is the originating procedure required to change a court order where as the notice of motion is requesting temporary relief. In any event she asks that the court deal with her motion by relying only on her written material. Her supporting affidavit again relies upon the exchange rate as of September 1, 1999. She also indicates that the spousal support amount has been the same while the currency exchange rate has been working in the respondent’s favour and his income has been increasing. She suggests that the proposal of the respondent is unfair and unjust to her and also impractical in enforcement. She also complains that it is difficult for her to attend in court every time the respondent makes a motion. In that regard, it remains open to the applicant to ask permission of the court, in the future, to enable her to attend by either conference call or a video link, arrangements that can be made if requested in advance.

[11] With respect to the 14b Motion of the applicant, it is being dismissed for a number of reasons. Firstly, 14b Motions are restricted to matters that are procedural, uncomplicated or unopposed and the subject matter of this case does not fall under that interpretation. Secondly, it is not for this court to fix the arrears, if any: the enforcement by the Family Responsibility Office will automatically determine if there are arrears based on the implementation of the court order and the support received from the support payor.

[12] The primary objective of the Family Law Rules is to enable the court to deal with cases justly, ensuring that the procedure is fair to all parties, saving expense and time, dealing with the case in ways that are appropriate to its importance and complexity and giving appropriate court resources to the case while taking account of the need to give resources to other cases. The goal of this court with respect to the case at bar is to simply ensure compliance with the court judgment from the foreign jurisdiction. This court has been requested to have that order enforced and it therefore the task of this court to ensure that the recipient receives the equivalent of $35,000.00 US funds per year. If she feels that that amount is no longer adequate because of some change in circumstances, she is at liberty to initiate her own motion to change.

[13] It is evident to this court that if the exchange rate from 1999 is implemented, that constitutes a material change of circumstances because the amount being paid by the support payor, when converted based on the current exchange rate, pays to the support recipient an amount greater than required under the court judgment. It is therefore the order of this court that the appropriate exchange rate equate to the exchange rate implemented by the Bank of Canada as of September 27, 2011 being consistent with the date on which the foreign judgment was received. That amount will be implemented into a new order to be implemented on a nunc pro tunc basis effective with the enforcement of that order. Recognizing that there are fluctuations in the bank exchange rate throughout the year, as of December 31 in each year following the enforcement by FRO, the support recipient shall provide to the support payor a breakdown of the funds received by her, when converted into US currency. Any amount received by her under $US 35,000.00 shall be paid to her no later than January 31 of the following year. In the event the amount received by her exceeds $US 35,000.00, then that amount will be credited to the support payor and deducted from the payment owing by him for the month of February in the year following. A new support deduction order shall issue accordingly.

[14] Under the circumstances of this case, the court finds that both parties have acted reasonably and there will be no award of costs. Court services is requested to prepare the order.

Justice R. Kaufman

Date: January 9, 2014