Montgomery v. Jones, 2015 ONSC 4540

COURT FILE NO.: F976/14

DATE: July 16, 2015

SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT

RE: Steven Gerald Montgomery, applicant

AND:

Amanda Laura Malanie Jones, respondent

BEFORE: MITROW J.

COUNSEL: Donald W. Kilpatrick for the respondent

HEARD: written submission filed by the respondent

ENDORSEMENT

1The purpose of this endorsement is to deal with an ongoing procedural problem that frequently arises in this court in relation to the content of child support orders.

2Specifically, a practice has arisen in this jurisdiction (London) that a child support order will not be signed and issued unless it contains the annual financial disclosure requirement set out in s. 24.1 of the Ontario Child Support Guidelines, O. Reg. 391/97 [as amended] (“Ontario Guidelines”). The unfortunate practice has developed that child support orders made under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) c.3 [as am. by S.C. 1997, c.1], are also containing the mandatory disclosure provision pursuant to s. 24.1.

3The file in the case at bar is brought to me in chambers; the respondent’s counsel wishes to correct the inadvertent omission of the Director’s clause from the original order that I signed.

4Also at issue, however, is whether the signed and issued order should include reference to annual disclosure pursuant to s. 24.1 of the Ontario Guidelines.

5For the sake of clarity, the relevant provisions of the Child Support Guidelines enacted pursuant to the Divorce Act (Federal Child Support Guidelines, O. Reg. 391/97 [as amended], the “Federal Guidelines”) and the Ontario Guidelines, are reproduced below.

6S. 13 of both the Federal Guidelines and the Ontario Guidelines specifies the content of a child support order.

7S. 13 of the Federal Guidelines is as follows:

13. A child support order must include the following information:

(a) the name and birth date of each child to whom the order relates;

(b) the income of any spouse whose income is used to determine the amount of the child support order;

(c) the amount determined under paragraph 3(1)(a) for the number of children to whom the order relates;

(d) the amount determined under paragraph 3(2)(b) for a child the age of majority or over;

(e) the particulars of any expense described in subsection 7(1), the child to whom the expense relates, and the amount of the expense or, where that amount cannot be determined, the proportion to be paid in relation to the expense; and

(f) the date on which the lump sum or first payment is payable and the day of the month or other time period on which all subsequent payments are to be made.

8S. 13 of the Ontario Guidelines is as follows:

13. An order for the support of a child must include,

(a) the name and birth date of each child to whom the order relates;

(b) the income of any parent or spouse whose income is used to determine the amount of the order;

(c) the amount determined under clause 3 (1) (a) for the number of children to whom the order relates;

(d) the amount determined under clause 3 (2) (b) for a child the age of majority or over;

(e) the particulars of any expense described in subsection 7 (1), the child to whom the expense relates and the amount of the expense or, where that amount cannot be determined, the proportion to be paid in relation to the expense;

(f) the date on which the lump sum or first payment is payable and the day of the month or other time period on which all subsequent payments are to be made; and

(g) reference to the obligation under subsection 24.1 (1) to provide updated income information no later than 30 days after the anniversary of the date on which the order is made in every year in which the child is a child within the meaning of this Regulation, unless the parties agree that the obligation shall not apply, as provided for in that subsection.

9It is apparent that the Federal Guidelines and the Ontario Guidelines differ because the latter now contains s. 13(g) (the disclosure obligation under s. 24.1(1)); this amendment to s. 13 of the Ontario Guidelines (to add subsection (g)) was enacted in 2010 by O. Reg. 25/10, s. 4.

10At the same time O. Reg. 24/10, pursuant to s. 6, enacted the new s. 24.1 of the Ontario Guidelines. The entire s. 24.1 is reproduced below:

Annual obligation to provide income information

24.1(1) Every person whose income or other financial information is used to determine the amount of an order for the support of a child shall, no later than 30 days after the anniversary of the date on which the order was made in every year in which the child is a child within the meaning of this Regulation, provide every party to the order with the following, unless the parties have agreed otherwise:

1. For the most recent taxation year, a copy of the person’s,

i. personal income tax return, including any materials that were filed with the return, and

ii. notice of assessment and, if any, notice of reassessment.

2. As applicable, any current information in writing about,

i. the status and amount of any expenses included in the order pursuant to subsection 7 (1), and

ii. any loan, scholarship or bursaries the child has received or will receive in the coming year that affect or will affect the expenses referred to in subparagraph i.

Notices of assessment

(2) If the person has not received his or her notice of assessment or notice of reassessment for the most recent taxation year by the date referred to in subsection (1), the person shall provide every party to the order with a copy of the notice as soon as possible after the person receives the notice.

Change in address

(3) If the address at which a party receives documents changes, the party shall, at least 30 days before the next anniversary of the date on which the order was made, give written notice of his or her updated address information to every person required to provide documents and information under subsection (1).

Failure to comply

(4) If a person required to provide a document or information under this section fails to do so, a court may, on application by the party who did not receive the document or information, make one or more of the following orders:

1. An order finding the person to be in contempt of court.

2. An order awarding costs in favour of the applicant up to an amount that fully compensates the applicant for all costs incurred in the proceedings.

3. An order requiring the person to provide the document or information to,

i. the court,

ii. the applicant, and

iii. any other party to whom the person did not provide the document or information when required to do so.

Exception

(5) Subsection (4) does not apply if the person who fails to provide the document or information is a child who is not a party to the order for support.

Transition

(6) In the case of an order to which subsection (1) applies that is in existence on the day section 5 of Ontario Regulation 25/10 comes into force, if the first date by which a person must provide documents and information under that subsection occurs less than six months after the day on which the person provided documents and information under section 25, the person is not required to provide documents and information under subsection (1) in the first year in which he or she would otherwise have been required to provide them.

11It must be underscored that the Federal Guidelines have no equivalent to s. 13(g) and s. 24.1 of the Ontario Guidelines.

BRIEF DISCUSSION

12In the case at bar, counsel for the respondent questions the statutory authority for including, in a child support order, the mandatory disclosure requirement set out in s. 24.1(1) of the Ontario Guidelines. The answer to that question is contained in s. 13(g) of the Ontario Guidelines.

13The mandatory inclusion in a child support order, requiring annual disclosure pursuant to s. 24.1 of the Ontario Guidelines, can have dire consequences for a party who fails to comply with that “order.” S. 24.1(4) deals with the consequences of a person’s failure to provide a document or information as required under s. 24.1, and this includes an order that the person be found in contempt of court (see s. 24.1(4), para. 1).

14Given the consequences that may follow for a failure to comply with s. 24.1 of the Ontario Guidelines, it is important that the child support order that makes reference to s. 24.1 should only be in respect of a child support order pursuant to the Family Law Act, R.S.O. 1990, c. F.3. It is wrong to make any reference to s. 24.1 in a child support order made pursuant to the Divorce Act.

15As mentioned earlier, the practice in this jurisdiction has unfortunately developed where reference to s. 24.1 is routinely contained in orders made under the Divorce Act; it appears that lawyers are routinely preparing orders that include reference to s. 24.1, notwithstanding that the order is being made under the Divorce Act because otherwise the orders may not be signed and issued. This practice must cease.

16Another issue that needs to be considered is that the mandatory income disclosure, as set out in s. 24.1(1) of the Ontario Guidelines, is clear that the obligation to provide annual income disclosure on the anniversary date of the order applies “… unless the parties have agreed otherwise …”

17Another bad practice that has developed in this jurisdiction is that child support orders routinely incorporate the reference to s. 24.1, notwithstanding that the order (usually pursuant to minutes of settlement) already provides a process for annual income disclosure, and usually on a date that is other than the anniversary date of the order. Orders routinely are being signed and issued that include a reference to s. 24.1 even though that may contradict an earlier provision in the order that already provides for annual disclosure.

18Where parties have already agreed as to terms and conditions that deal with annual income disclosure, then that constitutes an agreement where parties have “agreed otherwise” within the meaning of s. 24.1(1) of the Ontario Guidelines and, therefore, it is not necessary to insert, again, the annual disclosure provision mentioned in s. 13(g) of the Ontario Guidelines. In fact, s. 13(g) also sets out that reference to the obligation under s. 24.1(1) applies “… unless the parties agree that the obligation shall not apply, as provided for in that subsection.”

19In the Ontario Superior Court of Justice, both in the non-family and Family Court Branch, in order for staff at the counter to be able to sign and issue a child support order, it is important that the order is clear on its face and states whether it has been made pursuant to the Family Law Act or the Divorce Act; this applies equally as to whether the order is a final order or a temporary order.

20If the order is a final order and contains a decree of divorce, and then goes on to deal with all corollary relief matters, including child support, then it will be clear from the face of the order that it is an order made under the Divorce Act.

21However, in many circumstances it is difficult, if not impossible, to ascertain from the face of the child support order whether it is made pursuant to the Divorce Act or the Family Law Act, and therefore it makes it difficult for staff at the counter to know whether to insist that the order should contain the annual disclosure clause required by s. 24.1(1) of the Ontario Guidelines.

22Accordingly, it becomes important for parties to prepare a draft order that specifies whether child support is ordered pursuant to the Family Law Act or the Divorce Act. Counsel need to pay attention to this detail and ensure that draft orders that they prepare are clear as to the applicable legislation. It is recognized that where both parties are self-represented, that court staff, who prepare the draft order, may have to review the continuing record to ascertain the legislation pursuant to which the child support order was made.

23In summary:

a) s. 24.1 exists only in the Ontario Child Support Guidelines, not the Federal Child Support Guidelines and it applies only to child support orders, whether final or temporary, made pursuant to the Family Law Act;

b) child support orders made pursuant to the Divorce Act shall not contain a reference to s. 24.1 of the Ontario Child Support Guidelines, and an order for annual financial disclosure in relation to a child support order made pursuant to the Divorce Act cannot be “added” subsequently to the order, and instead, must be part of the child support order made by the judge;

c) only a child support order, whether temporary or final, made under the Family Law Act, shall include in the order a reference to an annual disclosure requirement pursuant to s. 24.1(1) of the Ontario Child Support Guidelines, subject to subparagraph (d) below;

d) in a case where the Family Law Act applies, and where the parties, pursuant to minutes of settlement, are requesting a child support order to be made where the minutes of settlement have already provided for annual income disclosure, or if the court on its own makes an order that includes a specific provision for annual income disclosure, then it is not necessary to include in the order a further reference to annual income disclosure on the anniversary date of the order pursuant to s. 24.1(1) of the Ontario Child Support Guidelines;

e) when the draft child support order is submitted at the counter to be signed and issued, the draft order should specify whether it is made pursuant to the Family Law Act or the Divorce Act.

ORDER

24In the case at bar, the final child support order is made pursuant to the Family Law Act and the order incorporated the minutes of settlement, which contained detailed provisions as to annual income disclosure.

25Accordingly, it is not necessary to include in the final order in the case at bar any reference to income disclosure on the anniversary date of the order pursuant to s. 24.1 of the Ontario Guidelines.

26Accordingly, I have signed the order as prepared without reference to s. 24.1 of the Ontario Guidelines.