CITATION: O’Higgins v. O’Higgins 2015 ONSC 3825

COURT FILE NO.: FS-040050919-01

DATE: 2015-06-12

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

FRANCES O’HIGGINS

Applicant/Responding Party

Anita K. Kania, as agent, for the Applicant

• and -

COLM O’HIGGINS

Michael Dibua, for the Respondent/Moving Party

Respondent/Moving Party

HEARD: February 4, 2015, at Brampton, Ontario

BEFORE: Price J.

Endorsement

NATURE OF MOTION

[1] In 2004, five years after Colm and Frances O’Higgins separated following their 14 year marriage, they signed final minutes of settlement. The following year, they consented to a final order of Baltman J. which was intended to bring their litigation to an end.

[2] Ms. O’Higgins moved to North Dakota with their children. Their youngest two children are now adults and independent; the youngest attends university in North Dakota and when not at school, continues to reside with Ms. O’Higgins and her current partner, whose income Ms. O’Higgins has not disclosed. Ms. O’Higgins herself earns an annual income of $37,000.

[3] Mr. O’Higgins remained in Ontario after the parties separated. He suffered a stroke in 2007, his small business of transporting children and disabled adults by bus declined, his bus driver’s license was suspended by the Family Responsibility Office in 2011, he suffered a further stroke in 2012 and ceased operating his business, his home was sold under power of sale, and his income now consists chiefly of a disability pension of $23,208 from the Canada Pension Plan and Old Age Security.

[4] In May 2014, Mr. O’Higgins applied to vary a final order of Baltman J. that the parties had consented to in 2005, based on a material change of circumstances. He applied to terminate his support obligation for the eldest two of the parties’ three children, on the ground that they are adult and no longer in school, to reduce his support obligation for their youngest child, on the ground that Mr. O’Higgins’ income has declined, and to rescind his arrears of child support, amounting to $54,999.72 in June 2014, on the ground that they impose a financial hardship on him.

[5] Ms. O’Higgins acknowledges that the parties’ two eldest children are no longer entitled to child support, but disputes that Mr. O’Higgins is disabled. She opposes the reduction of his child support to their youngest child and the rescinding of Mr. O’Higgins’ arrears of support.

[6] The parties did not raise an issue of jurisdiction at the hearing before me, which proceeded on the premise that Baltman J.’s order required Mr. O’Higgins to pay child support, and that this court has jurisdiction to vary the order. Since reserving judgment on the motion, and reviewing the material filed more closely, I am concerned as to whether the application is properly framed, and as to whether this court has the necessary jurisdiction to entertain the application.

[7] Ms. O’Higgins did not follow the procedure prescribed by s. 35 of the Family Law Act for the enforcement of minutes of settlement. That Act requires that a party who seeks to have an agreement enforced by the Family Responsibility Office file the agreement with either the Ontario Court of Justice or the Family Court of the Superior Court of Justice (which this court is not). This appears not to have been done. Nevertheless, the Family Responsibility Office appears to have enforced Mr. O’Higgins’ child support obligation since 2006.

[8] Mr. O’Higgins applies to this court to vary the order of Baltman J. by reducing his child support obligation and rescinding his arrears of child support. However, the order of Baltman J. does not require the payment of child support. While her order permits Ms. O’Higgins to file the parties’ final minutes of settlement with the Family Responsibility Office for enforcement, it does not dispense with compliance with the requirements of s. 35 of the Family Law Act in relation to such enforcement, if this was even possible. If Ms. O’Higgins had filed the minutes of settlement with the Ontario Court of Justice, the jurisdiction to vary Mr. O’Higgins’ support obligation would reside with that court pursuant to s. 37 of the Family Law Act. As it is, it is not clear whether there is an order to be varied.

[9] As this analysis raises a question as to the basis upon which the Family Responsibility Office has been enforcing Mr. O’Higgins’ child support obligation, and because that Office did not participate in the hearing of Mr. O’Higgins’ application, I have decided to invite submissions from that Office on the issue of jurisdiction before considering the matter further.

BACKGROUND FACTS

[10] Colm O’Higgins will be 67 years old this month. He was born on June 28, 1948. Frances O’Higgins, formerly Frances Eicholtz, is 56, born December 15, 1958. They were married on December 29, 1987, and separated after 14 years, in 2001. They were divorced pursuant to an order of on July 28, 2004.

[11] Mr. and Ms. O’Higgins have three children:

1. Cathleen Toy Feung O’Higgins, who is 25, born June 2, 1988.

2. Cara Toy Jen O’Higgins, who is 23, born March 11, 1990.

3. Declan Patrick O’Higgins, who is 18, born August 20, 1995.

[12] Three years after Mr. and Ms. O’Higgins separated in 2001, Ms. O’Higgins began a divorce proceeding by application to this court, in which she claimed, among other things, custody of the parties’ children and child support. The parties signed final minutes of settlement in that proceeding on July 28, 2004.

[13] The minutes of settlement of July 28, 2004, contained the following provisions with regard to child support:

CHILD SUPPORT

9. The Husband shall pay child support to the Wife in the amount of $1,200.00 in Canadian funds per month, based on his annual imputed income of $69,999.00, commencing August 18, 2004, and on the 18th day of each month thereafter.

10. The support of the Children will be payable on the 18th day of each month commencing on August 18, 2004, until one or more of the following occurs:

a) The Children cease to reside full-time with the Wife. “Resides full time” includes the Children living away from home to attend at an educational institution, pursue summer employment, obtain medical treatment or take a vacation, as long as the Children are otherwise maintaining a residence with the Wife;

b) the Children become twenty-two (22) years of age and cease to be in full-time attendance at an educational institution within Continental North America (except for school vacations), provided that the child is not unable to become self-supporting due to illness, disability, or other cause.

c) the Children marry or enter into (cohabit in a ) relationship resembling marriage; or

d) the Children cease to be a “child of the marriage” as defined under the Divorce Act.

11. The Husband may pay the support owing under this agreement to the Wife through bank transfer or cheque and not to the Family Responsibility Office. Notwithstanding the foregoing, if the Wife wishes, the Wife may at any time file this agreement with the court and the Family Responsibility Office for enforcement. To that end, the Husband shall provide to the Wife twelve (12) post-dated cheques every August 18th, beginning August 18, 2004, for the payment of child support. The Husband shall deliver these cheques via regular mail or courier.

[14] Mr. O’Higgins now says that he agreed to the child support amount based on his belief that he would be able to maintain annual earnings of $40,000. The parties agreed to dismiss any claim they might have to spousal support.

[15] Mr. O’Higgins states that on July 28, 2004, the same day the parties signed their final minutes of settlement, Kruzick J. made an order granting custody of the children to Ms. O’Higgins, granting Mr. O’Higgins access, and requiring that Mr. O’Higgins pay child support in the amount of $1,200 per month for the support of the three children. While Mr. O’Higgins states that a copy of the order is attached to his Change Information Form, the order is not attached. In any event, I infer that this would have been a temporary order that was superseded by Baltman J.’s final order dated June 13, 2005.

[16] Mr. O’Higgins made a motion and Ms. O’Higgins made a cross-motion to this court in 2005. That material in connection with those motions was not tendered at the hearing before me, but is referred to by Baltman J. in her final order dated June 13, 2005. That order is said to be based on minutes of settlement dated June 13, 2005, and dismissed the motion and the cross-motion.

[17] Baltman J.’s order dated June 13, 2005 further provided as follows:

1. The Applicant/Wife is hereby permitted to file the final Minutes of Settlement, dated July 28, 2004, with respect to child support, with the Family Responsibility Office for enforcement.

2. The Respondent/Husband shall pay to the Applicant/Wife the sum of $8,750.00 (inclusive of GST) for fees plus the disbursements of $1,153.30, within 30 days.

3. Unless the Support Order and the Support Deduction Order is withdrawn from the office of the Director of the Family Responsibility Office, it shall be enforced by the Director, and amounts owing under the Support Order shall be paid to the Director, who shall pay them to the party to whom they are owed;

4. If the parties agree to opt out of the Family Responsibility Office at any time, they are both required to file with the Office of the Director of the Family Responsibility Office a separate written request consenting to the withdrawal of the Support Order and the support Deduction Order.

5. All payments are to be made payable to the Family Responsibility Office, Ministry of the Attorney General, P.O. Box 1060, Station “B”, Toronto, Ontario, M5T 2C0.

This Order bears post-judgment interest at the rate of 4% per annum effective from the date of this Order. Where there is a default in payment, the payment in default shall bear interest only from the date of default.

Support payor: Support Recipient:

Colm O’Higgins Frances O’Higgins

11 Greenleaf Crescent 7 Montgomery Square

Brampton, Ontario Brampton, Ontario

L6X 2V5 L6Z 2H2

[18] The parties’ final minutes of settlement in 2004 provided that Ms. O’Higgins could move to Jamestown, North Dakota, with the parties’ children. Ms. O’Higgins agreed to advise the children that they could return to Canada to live with their father if they became unhappy living in North Dakota. Following the order made by Baltman J. on June 13, 2005, Ms. O’Higgins moved to North Dakota with the parties’ three children. She says she put the children through college or university without any contribution from Mr. O’Higgins.

[19] Cathleen and Cara are now independent and live in North Dakota. Declan attends university in Grand Forks, North Dakota, 3 hours from Ms. O’Higgins’ home, and when not in residence, lives with his mother and her partner in Jamestown, North Dakota. Ms. O’Higgins is employed, earning $37,000 a year. She has not disclosed the income of her current partner.

[20] Mr. O’Higgins applied on May 22, 2014, to vary the order of Baltman J. that the parties consented to in 2005, which he says required him to pay Ms. O’Higgins $1,200 per month in child support. He asks that the order be varied based on material changes in his circumstances. He asks that:

1. His child support obligation for his eldest child, Cathleen Tory Feung O’Higgins, who is now 27 years old (born June 2, 1988), and for his next eldest child, Cara Toy Jen O’Higgins, who is now 25 years old (born March 11, 1990), be terminated effective April 30, 2013, on the ground that they are adults and independent, and no longer “children of the marriage” within the meaning of the Divorce Act;

2. His child support obligation to his youngest child, Declan O’Higgins, be reduced, effective June 1, 2014, to $186.00 per month, being the table amount listed in the Child Support Guidelines, based on Mr. O’Higgins’ annual income of $23,208; and

3. His child support arrears, in the amount of $54,000, be rescinded, on the ground that they impose a financial hardship on him.

[21] Mr. O’Higgins operated a small transportation business for a number of years. Mr. O’Higgins and the 4 to 5 employees who worked for him until 2008/09 drove buses that transported persons who were disabled or who attended private schools. He states that he suffered a stroke in the fall of 2007. He did not obtain treatment and now wishes that he had. He suffered reduced energy and his business began to fail.

[22] In June 2011, Mr. O’Higgins’ bus driver’s license was suspended by the Family Responsibility Office. At the time, he was the primary driver in the business since 2010, when it was necessary for him to lay off his last employee. He states that he has not worked since 2011 and that he has not made any deposits to his business account for over a year as of March 5, 2014, when he swore his affidavit.

[23] Mr. O’Higgins states that in January 2012, he suffered a major stroke and has not been able to work since then. The stroke further depleted his energy and left him with poor balance and both short and long term memory issues. He attaches as an exhibit to his affidavit a letter dated September 24, 2014, from Paul Carabott M.D., in Bramalea, who states that Mr. O’Higgins sustained a stroke in February 2012, and that imaging at the time suggested that he may also have had a previous stroke. Dr. Carabott states that although Mr. O’Higgins made a very good recovery, he still has residual defects of function. His gait is unsteady and his disequilibrium has recently worsened with an increasing tendency to fall. His speech is slow and a little slurred, and he complains of difficulties with his short and long term memory. He concludes:

He would find it very difficult to consistently carry out any significant job functions and in my opinion he is essentially disabled. As for the past year there was been no continued improvement with perhaps even some deterioration, this disability should be considered permanent.

[24] He has been in receipt of disability benefits from the Canada Pension Plan since July 2013. He attaches a letter from Service Canada dated July 10, 2013, confirming his C.P.P. monthly entitlement of $638.54. He states that his total monthly net income (including disability benefits, Old Age Security, and Guaranteed Income Supplement) is $967, from which he pays rent of $420 per month for a room.

[25] Mr. O’Higgins has filed his Notices of Assessment for the tax years 2010, 2011, and 2012, with the court. They disclose, on Line 150, that Mr. O’Higgins’ total taxable income in those years consisted of the following:

1. 2010: $9,500

2. 2011: $14,378

3. 2012: $9,918.

[26] Mr. O’Higgins has produced a copy of his 2013 income tax return, which discloses a line 150 income in the amount of $30,571.17. Ms. O’Higgins complains that he had not yet produced, as of the date of the hearing, his schedules and attachments, which she believes would disclose that his actual earnings were substantially higher, or his Notice of Assessment for 2013.

[27] The Statement of Arrears from the Family Responsibility Office (F.R.O.) discloses arrears that began accruing on June 18, 2006, at $1,200 per month, and continued accruing to June 2, 2014, when they were $54,999.72. It appears that $609.56 is garnished from Mr. O’Higgins each month since August 1, 2013, when the net proceeds of sale of his home were paid to F.R.O.

[28] Mr. O’Higgins’ home at 31 Homeland Court in Brampton was sold in 2012. He states that it was sold by the Bank under power of sale and that the entire net proceeds of sale were paid to Ms. O’Higgins. He states that when the property was sold, he moved to a room in shared accommodation at 239 Rutherford Road North in Brampton. The roommate he had expected would share the rent of $900 per month moved out, and Mr. O’Higgins was left with the entire rent, which was reduced to $775 per month. Mr. O’Higgins says that he has been trying to find a replacement co-tenant to share the rent and that his landlord has threatened to evict him if he failed to pay his rent. Ms. O’Higgins states that Mr. O’Higgins initially told her that she would be receiving $60,000 from the net proceeds, but that she received only $7,568.68. Mr. O’Higgins explains that the net proceeds of sale were substantially less than he had expected.

[29] Mr. O’Higgins states that in 2013, his annual income was $30,500. In 2014, his income was $23,208, consisting of the following:

1. Disability Pension: $7,662

2. Old Age Security: $6,599

3. Guaranteed Income Supplement: $8,947

[30] Ms. O’Higgins acknowledges that she received $7,568.68 towards Mr. O’Higgins’ arrears for child support from the sale of Mr. O’Higgins’ home in the fall of 2014. The remainder of the support arrears, and the costs of $5,900 that Mr. O’Higgins was ordered to pay almost 10 years ago, are still outstanding.

[31] Ms. O’Higgins agrees that child support for Cathleen should be terminated as of July 1, 2010, and that child support for Cara should be terminated as of April 1, 2012. She opposes reducing the child support payable to Declan O’Higgins, which she submits should be $450 to $500 per month based on an annual income of $50,000 which she asks the court to impute to Mr. O’Higgins. She also opposes Mr. O’Higgins application for an order rescinding his arrears of child support.

[32] Ms. O’Higgins seeks an order requiring Mr. O’Higgins to produce extensive corporate records for his business for the years 2007 to 2013, his past and present passports, the statement of adjustments for the sale of his home at 31 Homeland Crescent in Brampton, his bank accounts and credit cards for 2007 to 2015, and the particulars of any income and expenses associated with his go-karting hobby from 2010 to the present.

ISSUES

[33] This motion requires the court to determine the following issues:

1. Is there an order of this court that requires Mr. O’Higgins to pay child support and that can be varied pursuant to s. 17 of the Divorce Act?

2. Were the minutes of settlement that the parties signed in 2004 filed in accordance with s. 35 of the Family Law Act, such that they can be enforced as if they were an order of the Ontario Court of Justice, and can the terms of the minutes of settlement now be varied pursuant to s. 37 of the Family Law Act?

3. Is Mr. O’Higgins precluded from claiming a variation in his support obligation by the fact that he is in contempt of the Order of Baltman J. by his failure to pay the costs imposed by that Order, or by his failure to pay child support?

4. Has there been a material change in circumstances that entitles Mr. O’Higgins to a variation of his child support obligation?

5. What amount of child support should Mr. O’Higgins be obliged to pay for the support of Declan O’Higgins?

6. What are Mr. O’Higgins’ actual arrears of child support, after adjusting for the termination of child support for Cathleen as of July 1, 2010, and Cara as of April 1, 2012?

7. Do Mr. O’Higgins’ obligations to pay arrears of child support arising from an existing order or agreement impose an undue hardship on him?

PARTIES’ POSITIONS

[34] At 67 years of age, Colm O’Higgins views his life as if from the end, looking backward. In 2007, he suffered a stroke. This resulted in the decline of his business operating buses that transported children to school and disabled adults to activities. In 2011, his driver’s license was suspended by the Family Responsibility Office due to his unpaid child support obligations. This resulted, he says, in the failure of his business. In 2012, he suffered a further stroke, and his doctor now says that he is unlikely to be employed again.

[35] Mr. O’Higgins lives in a two-bedroom apartment in Brampton, drawing approximately $24,000 a year in disability benefits from the Canada Pension Plan and Old Age Security Program. He spends his days racing vintage Go-Karts, a past-time that he says has fascinated him since he was 15 years old. This entails travelling across the country and re-furbishing vintage Go-Karts that he offers for sale to other enthusiasts of the sport.

[36] Ms. O’Higgins disputes Mr. O’Higgins’ assertion that his health and fortunes have declined. She argues that his claims of disability and financial hardship are belied by the fact that he travels across the United States to race Go-Karts at speeds of up to 125 kilometres per hour. She regards this as a self-indulgent past-time which Mr. O’Higgins pursues instead of working to support his children and reducing his arrears of support. Additionally, she submits that Mr. O’Higgins’ failure to disclose relevant evidence of his financial circumstances should preclude him from having his application for variation entertained by the court. She agrees that the ongoing support to their eldest two children should be terminated, but opposes any reduction of the child support he is obliged to pay for the support of Declan O’Higgins, or any reduction of his arrears of child support.

ANALYSIS AND EVIDENCE

Legislation

[37] Mr. O’Higgins has applied to vary the order of Baltman J., which he says requires him to pay child support. The order of Baltman J. was made in a proceeding that Ms. O’Higgins commenced pursuant to section 15.1 of the Divorce Act. That section provides:

15.1(1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.

(3) A court making an order under subsection (1)…shall do so in accordance with the applicable guidelines.

(7) Notwithstanding subsection (3), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines on the consent of both spouses if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates.[^1] [Emphasis added]

[38] A variation of an order for child support made pursuant to s. 15.1(1) of the Divorce Act is governed by section 17 of that Act. Section 17 provides:

17.(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

(a) a support order or any provision thereof on application by either or both former spouses.

(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.

(6) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.

(6.3) Where the court awards, pursuant to subsection (6.2), an amount that is different from the amount that would be determined in accordance with the applicable guidelines, the court shall record its reasons for having done so.

[39] The Family Law Act entitles a spouse to file a domestic contract, such as minutes of settlement, with the court, and thereby empower the Family Responsibility Office to enforce the contract as if it were a court order. Section 35 of the Family Law Act provides, in this regard:

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.

(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

(c) except in the case of a provision for the support of a child, may be increased under section 30,

as if it were an order of the court where it is filed.[^2] [Emphasis added]

[40] The Court of Appeal described the effect of s. 35 in Jasen v. Karassik, in 2009. It stated:

… Section 35(1) enables a party to a “domestic contract” to file the contract with an Ontario court. Section 35(2) provides that when a contract is filed under subsection (1), a provision for support or maintenance in the contract may be enforced or varied under s. 37 of the FLA as if it were an order of the court where it is filed.

… Section 35 simply provides a summary procedure which enables a party to file a contract with the court to seek enforcement or variation of a provision as if that provision were an order of the court. This procedure allows parties to take advantage of a variety of statutory processes designed to facilitate recovery of support and maintenance payments.[^3] [Emphasis added]

[41] The Family Court branch of the Superior Court of Justice is constituted a court, with its own separate jurisdiction, by s. 21.1 of the Courts of Justice Act. That section provides:

21.1(1) There shall be a branch of the Superior Court of Justice known as the Family Court in English and Cour de la Famille in French.

(4) The Family Court has jurisdiction in the City of Hamilton and in the additional areas named in accordance with subsection (5).

(5) The Lieutenant Governor in Council may, by proclamation, name additional areas in which the Family Court has jurisdiction.[^4]

[42] By proclamation dated May 19, 1995, the Lieutenant Governor designated the Counties of Frontenac, Lennox and Addington, Middlesex, and Simcoe as areas in which the Family Court had jurisdiction, effective August 1, 1995. On December 4, 1998, the Attorney General of Ontario announced that in 1999, the Family Court would be expanded to include the cities of Bracebridge, Brockville, Cobourg, Cornwall, Durham Region, Lindsay, L’Orignal, Newmarket, Ottawa, Perth, Peterborough, and St. Catherines. Brampton and other cities in Central West Region have not been designated as areas in which the Family Court has jurisdiction.

[43] The variation of a domestic contract, including minutes of settlement, that has been filed with the Ontario Court of Justice or the Family Court branch of the Superior Court, pursuant to s. 35 of the Family Law Act is governed by s. 37 of that Act. Section 37 provides:

37.(1) An application to the court for variation of an order made or confirmed under this Part may be made by,

(a) a dependant or respondent named in the order;

(b) a parent of a dependant referred to in clause (a);….

(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,

(a) discharge, vary or suspend a term of the order, prospectively or retroactively;

(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and

(c) make any other order for the support of a child that the court could make on an application under section 33.

(2.2) A court making an order under subsection (2.1) shall do so in accordance with the child support guidelines.

[44] The courts to which the Family Law Act assigns jurisdiction are not interchangeable. The Superior Court of Justice and the Ontario Court of Justice do not have the jurisdiction to vary each other’s orders. In Doherty-Mulder v. Mrowietz, in 2003, an applicant mother applied to the Superior Court of Justice to vary an order that had been issued by the Ontario Court of Justice. Although the Superior Court had granted some interim relief prior to the hearing of the subject application, Kruzick J. concluded that he had done so “erroneously”, and that he did not have the authority to vary the final order of the provincial court.[^5] He also noted that the parties had “had a choice with respect to how they would proceed” when the matter was commenced, and that they had opted for the provincial court. It was not now open to them to re-elect the forum for the resolution of their dispute.[^6] Although the Superior Court is able to hear appeals from an order of the provincial court, only the Ontario Court of Justice has jurisdiction to vary those orders.[^7] The application was dismissed.

[45] Professor James McLeod commented on Kruzick J.’s decision in Mrowietz, in a brief summary of the decision: “Variation. The obvious. An applicant cannot vary an OCJ order in the OSCJ. Really. ... You can only vary an order in the court that made it, or the Superior Court of Justice – Family Court, which is both courts in one.”[^8]

[46] Henderson J., in Maves v. Whitsitt, in 2011, affirmed Kruzick J.’s decision in Mrowietz.[^9] In Maves, the Ontario Court of Justice made a final order granting custody of the parties’ child to the mother, with access to the father on alternate weekends. The mother took the child and moved to Alberta, whereupon the father made an ex parte motion to the Superior Court of Justice to have his daughter returned to Ontario. He also sought an order for custody. Henderson J. dismissed the motion, without prejudice to the father’s right to make his motion to the Ontario Court of Justice. Henderson J. cited the decision of Kruzick J. in Mrowietz, determining that, in accordance with s. 29 of the Children’s Law Reform Act,[^10] the Superior Court did not have jurisdiction to vary the final custody order made by the provincial court.[^11] Henderson J., noting that because the area where the parties resided did not have a dedicated Family Court, the parties could have started their litigation in either the Ontario Court of Justice or the Superior Court of Justice, held that the parties were now “bound to remain in the Ontario Court of Justice”.[^12] It was not open to the Superior Court to “step in” for the purpose of varying the original order.[^13]

[47] The Ontario Court of Justice has similarly affirmed the exclusive jurisdiction of that court to vary its own orders.[^14] In Sadowski v. Sadowski, in 2011, the applicant father obtained a final order from the Ontario Court of Justice granting him graduated unsupervised access. The mother later applied to have the proceedings transferred to the Superior Court pursuant to s. 27 of the Children’s Law Reform Act. O’Connell J. accepted the father’s argument that the Superior Court lacked jurisdiction to vary the final order of the Ontario Court. He held, “the case law is clear that the Superior Court has no jurisdiction to vary an order of the Ontario Court of Justice, just as the Ontario Court of Justice could no[t] vary an order of the Superior Court”.[^15] O’Connell J. acknowledged that if the Superior Court made an order with respect to corollary issues in its judgment of divorce, that order would supersede a comparable order made by the provincial court.[^16]

[48] In Gow v. Gow, in 1989, Granger J. considered the ability of the former Ontario Supreme Court (High Court of Justice) to vary a separation agreement that had been filed in the Ontario Provincial Court pursuant to s. 35(1) of the Family Law Act, S.O. 1986, c.4.[^17] The parties in that case had entered into a separation agreement in 1984 that addressed custody, access, support and subsequent variation. In 1988, the husband applied pursuant to s. 37 of the Act to vary a part of the agreement. Granger J. noted that the language of s. 37 allowed an applicant to apply to “the court” to vary a filed agreement. He held that the effect of using the definite article in s. 37 was to “restrict ‘court’ to the court which made the order sought to be varied.”[^18] He stated:

Under s. 35, the separation agreement can only be filed in the Provincial Court (Family Division) and accordingly that is “the court” which is deemed to have made the order that the husband seeks to vary. The Supreme Court of Ontario is without jurisdiction to entertain an application to vary an order which originates from the filing of a separation agreement in the Provincial Court (Family Division).[^19]

[49] In Houle v. Trottier, in 2012, Nolan J., of the Superior Court of Justice, heard an applicant wife’s motion for summary judgment which, if granted would have varied an order for child support, and duplicated an order for custody, that the Ontario Court of Justice had previously made. Because the respondent husband had not filed an answer to the wife’s application in the Superior Court, the motion for summary judgment was not served on him, and was therefore unopposed. Nolan J. noted that the husband’s acquiescence could not confer jurisdiction and that, accordingly, it was left to her to be satisfied that the Superior Court of Justice had jurisdiction to make the order requested. She concluded that it did not.

[50] In Houle, the parties separated in 2000 and signed a separation agreement in June 2000 which required the father to pay child support of $100 per week for the support of the parties’ child. The Ontario Court of Justice made an order in January 2002, granting custody of the child to the mother. A later application by the father to the same court resulted in an order in October 2002, granting him access. In 2005, the mother made an uncontested application to the Superior Court for a divorce, which was granted in July 2005. The divorce order was silent as to corollary relief, including custody, access, and child support, because no such relief was requested. The father applied to the Ontario Court in 2005 and obtained an order in October 2005 varying the earlier order of that court, and reduced his child support obligation to $213 per month, based on the father’s reduced annual income. The mother then applied to the Superior Court for “interim and permanent” orders for custody and child support. Nolan J. found that the Superior Court was without jurisdiction to make the order, and that the mother was required to apply to the Ontario Court of Justice for the relief she is seeking.

[51] She stated:

With respect to the decision in Gow, if the parties’ separation agreement in the matter before me was filed with the Ontario Court of Justice pursuant to s. 35(1) of the current Family Law Act and thus became an order of that court in accordance with s. 35(2) of the Act, that case would dictate that this court has no jurisdiction to vary any part of that agreement. Indeed, only the provincial court is able to vary a separation agreement that has been filed in that court under the authority of s. 35(1). The materials of the applicant in the matter before me do not make clear whether the parties’ separation agreement was ever filed in the Ontario Court of Justice.

It may be that in the context of the matter before me, the applicant mother, cognizant of the Superior Court’s lack of jurisdiction to vary the final orders of the Ontario Court of Justice has filed the application in this court in order to obtain a de novo hearing on the issues of custody and child support. A similar strategy was attempted by the respondent father in Whitsitt. The father’s counsel suggested to the court that if it found that it did not have jurisdiction to vary the custody order of the provincial court, he might simply initiate an entirely new application for custody in the Superior Court. This attempt to circumvent the issue of jurisdiction was deemed by Henderson J. “not to be a solution to the problem, as any Superior Court of Justice order would have the effect of changing the existing Ontario Court of Justice order” (Whitsitt, at para. 10). Effectively, the respondent was “asking to do indirectly what he is prohibited from doing directly” (Whitsitt, at para. 10).[^20]

[52] As in Houle case, the evidence before me does not disclose that the minutes of settlement that Mr. and Ms. O’Higgins signed in 2004 were ever filed in the Ontario Court of Justice pursuant to s. 35 of the Family Law Act, or that an affidavit was filed in that court, as required by that Act. Section 35 requires, however, that such an agreement be filed in the Ontario Court of Justice or in the Family Court of the Superior Court. It does not permit the agreement to be filed in the Superior Court of Justice in an area not designated as one in which this court is constituted as a Family Court branch.

[53] The parties settled Ms. O’Higgins’ divorce proceeding in this court by a consent order by Baltman J. dated June 13, 2005. It stated:

THE COURT ORDERS, ON THE BASIS OF MINUTES OF SETTLEMENT DATED JUNE 13, 2005, THAT:

3. The Applicant/Wife is hereby permitted to file the final Minutes of Settlement, dated July 28, 2004, with respect to child support, with the Family Responsibility Office for enforcement;

[54] The minutes of settlement dated June 13, 2005, referred to in Baltman J.’s order do not form part of the evidence before me in Mr. O’Higgins’ application to vary Baltman J.’s order.

[55] Justice Baltman’s order does not, by its terms, require Mr. O’Higgins to pay child support. Rather, it permits Ms. O’Higgins to file the minutes of settlement which the parties had signed in 2004 with the Family Responsibility Office for enforcement. The order therefore amends paragraph 11 of the parties’ minutes of settlement to restore the words, “Notwithstanding the foregoing, if the Wife wishes, the Wife may at any time file this agreement with the court and the Family Responsibility Office for enforcement.”, which the parties had excised from the draft minutes before they signed. Justice Baltman’s order does not dispense with compliance with s. 35 of the Family Law Act, and it is doubtful whether she would have even had jurisdiction to do so.

[56] Justice Blishen noted in Hurazarik v. Fairfield, in 2004:

Section 35 of the Family Law Act is the only provision that confers jurisdiction on the court to vary an agreement. In effect, it turns the agreement into an order for the purposes of enforcement and variation. Section 35(2) is clear that only provisions for support are covered, not custody or access provisions.[^21]

[57] In Huazarik v. Fairfield, Blishen J. held that a divorced former husband could not file the parties’ separation agreement under s. 35 of the Family Law Act in order to vary the support provisions of the domestic contract under that Act. In an annotation on the decision, Professor James G. McLeod stated:

Blishen J.’s explanation of why the divorced former husband could not file the parties’ separation agreement under s. 35 of the Family Law Act in order to vary the support provisions of the domestic contract under that Act confirms that, as a general rule, support proceedings following divorce should be commenced under the Divorce Act. In spite of the broad language of Rule 15, a motion to change the provisions of an agreement is limited to changing the support provisions of an agreement entered into at a time when the parties were spouses and filed pursuant to the provisions of s. 35 of the Family Law Act.[^22]

[58] Professor McLeod later points out the differences in the approach taken by the court where a domestic contract, including minutes of settlement, has not been filed under s. 35 of the Family Law Act. He stated:

Although the courts have consistently refused to vary the support provisions of an agreement that has not been filed under s. 35 of the Family Law Act, regardless of the language of Rule 15, they have disagreed on how to address the failure to file the agreement. In Carpenter v. Carpenter, 2000 22443 (ON SC), 2000 CarswellOnt 3897, 11 R.F.L. (5th) 281 (Ont. S.C.J.), Aston J. ordered the moving party to file an application and the responding party to file an answer and claim to regularize proceedings, regardless of the added expense and inconvenience. On the other hand, in Wise-Kowienski v. Wise, 2001 CarswellOnt 421 (Ont. S.C.J.), Perkins J. deemed the agreement to have been properly filed with the consent of the parties, which better reflects the primary objective under the Rules. Whether he could have done so if the parties did not consent is doubtful.

[59] The Family Responsibility Office has enforced Mr. O’Higgins obligation to pay child support since 2006. It is unclear whether on what basis the F.R.O. has done so. This should be clarified before I proceed to a determination of the remaining issues, as the basis for Mr. O’Higgins’ obligations has a bearing on the court to which an application to vary is properly made, and the legislative regime that governs the application.

CONCLUSION AND ORDER

[60] Based on the foregoing, it is ordered that:

1. Mr. O’Higgins shall forthwith serve this endorsement on the Family Responsibility Office. The Family Responsibility is granted leave to intervene. The parties have leave to file further material on the motion.

2. The motion is adjourned to June 30, 2015, at 9 a.m. before me, to be spoken to.

Price J.

Released: June 12, 2015

CITATION: O’Higgins v. O’Higgins 2015 ONSC 3825

COURT FILE NO.: FS-040050919-01

DATE: 2015-06-12

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

FRANCES O’HIGGINS

Applicant

• and –

COLM O’HIGGINS

Respondent

ENDORSEMENT

Price J.

Released: June 12, 2015

[^1]: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as am.

[^2]: Family Law Act, R.S.O. 1990 c. F-3, as amended, s. 35

[^3]: Jasen v. Karassik, 2009 ONCA 245, [2009] O.J. No. 1175 (Ont. C.A.), paras. 24 and 33

[^4]: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 21.1

[^5]: Doherty-Mulder v. Mrowietz (2003), 2003 5374 (ON SC), 43 R.F.L. (5th) 313 (Ont. S.C.), para. 6

[^6]: Doherty-Mulder v. Mrowietz, paras. 7-8

[^7]: Doherty-Mulder v. Mrowietz, para. 10

[^8]: James G. McLeod, “Doherty-Mulder v. Mrowietz, 2003 CarswellOnt 3214” Jay McLeod’s This Week in Family Law 42 (21 October 2003)

[^9]: Maves v. Whitsitt, 2011 CarswellOnt 11869 (S.C.)

[^10]: Children’s Law Reform Act, R.S.O. 1990, c. C.12

[^11]: Maves v. Whitsitt, at paras. 7, 9

[^12]: Maves v. Whitsitt, at paras. 7-8

[^13]: Maves v. Whitsitt, at para. 8

[^14]: Gow v. Gow (1989), 1989 8804 (ON SC), 18 R.F.L.(3d) 14. See also: Lowther v. Lowther, 2013 ONCJ 582, para. 8

[^15]: Sadowski v. Sadowski, 2011 ONCJ 403, at para. 15

[^16]: Sadowski v. Sadowski , at para. 16

[^17]: Gow v. Gow (1989), 1989 4267 (ON SC), 67 O.R. (2d) 443 (H.C.J.)

[^18]: Gow v. Gow, at p. 445

[^19]: Gow v. Gow, at pp. 445-46

[^20]: Houle v. Trottier, 2012 ONSC 786, para. 23 and 24

[^21]: Huazarik v. Fairfield, 2004 ONSC 48161, para. 8

[^22]: Professor James G. McLeod, annotation to Huazarik v. Fairfiled, 2004 48161 (ON SC), 2004 CarswellOnt 840, 48 R.F.L. (5th) 275.