Superior Court of Justice – Ontario (Family Court)
RE: ARLENE BERNADETTE ALVARES, applicant
AND:
EDGAR JOAQUIM ALVARES, respondent
BEFORE: VOGELSANG J.
COUNSEL: No one for the applicant or the respondent at this written hearing held pursuant to r. 37.1(7) of the Ontario Family Law Rules
ENDORSEMENT
1By an order dated June 27, 2013, the Luton Family Proceedings Court sitting at the Magistrates Court in Bedfordshire, England, ordered that the respondent Alvares pay ₤20 monthly to Arlene Alvares, the applicant, for the support of each of two children, Laura and Ryan, who are now seventeen and thirteen years of age, respectively.
2The order made was provisional in nature, being a variation of a support clause contained in an Ontario Superior Court of Justice divorce order pronounced by Templeton J. on December 7, 2004. That order was based on written minutes of settlement dated October 19, 2004 which contained the following paragraphs pertinent to child support:
Arlene acknowledges that Edgar is currently unemployed, has declared bankruptcy and has relocated to England for the time being.
Edward acknowledges his obligation to support his children and the parties agree that Edgar shall pay child support in the amount of $800.00 per month.
The child support payable by Edgar in paragraph 4 shall be without prejudice to Arlene to seek an increase in support upon a determination of Edgar’s true income.
Arlene shall continue to maintain the children as beneficiaries of her extended health, drug and dental coverage available to her through her employment.
Edgar shall provide to Arlene ongoing information about his income and financial circumstances in general to enable the parties to establish an appropriate amount of child support. (my emphasis)
3The order of the Magistrates Court is a “provisional variation order” as defined in s. 1 of the Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13. By virtue of s. 31(1) of that statute, the procedural provisions of ss. 32 to 38 apply to this confirmation hearing. See Herriman v. Blais, 2012 BCCA 437, (2012), 21 R.F.L. (7th) 360 (B.C.C.A.).
4Pursuant to s. 36(1)(d), I am not disposed to confirm the provisional variation, based on the evidence provided to this court by Ms. Alvares and the documents sent from the United Kingdom (see s. 34(1)(a) and (b)). The reasons for my decision are as follows:
At the time of his signing the minutes of settlement, Mr. Alvares was an undischarged bankrupt and unemployed. That notwithstanding, he made a voluntary commitment to pay $800 monthly as child support;
The evidence presented by Mr. Alvares to the English court was misleading and deceptive in an important way. His insistence that the support order had been suspended by the Ontario Family Responsibility Office was obviously untenable as a mutual withdrawal from the prescribed support collection mechanism affects only enforcement, not the subsistence or continuation of the order itself: see s. 16(3) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 [as amended];
The financial disclosure advanced by Mr. Alvares to the Magistrates was, to me, fragmentary and confusing. He predictably failed to make a clear, straightforward disclosure of his income tax information on an annual basis, relying instead on anecdotal descriptions of his work and remuneration from various sources from time to time.
Mr. Alvares’ lack of transparent financial disclosure is made more prejudicial to him because he has steadfastly ignored his clear undertaking to provide that information in para. 8 of both the minutes of settlement and the divorce order;
- Applying the choice of law rules in s. 35 of the Interjurisdictional Support Orders Act, 2002 and in accord with Ontario law, there appears no persuasive evidence of a material, or any, change of circumstances on the part of Mr. Alvares which could justify a variation: see s. 17(4) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) c.3 [as am. by S.C. 1997, c.1].
5For these reasons, the provisional variation order is not confirmed.
“Justice Henry Vogelsang”
Justice Henry Vogelsang
Date: June 16, 2015