ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: F463/98
DATE: 2015-10-22
BETWEEN:
William McLeod Chree
Applicant
– and –
Sheila Mae Noble Chree
Respondent
Self-Represented – Not Present
Self-Represented
HEARD: September 21, 2015
THE HONOURABLE MR. JUSTICE PAZARATZ
[1]. There’s an old saying: “Two Heads Are Better Than One”.
[2]. But not when it comes to trial judges.
THE MOTION
[3]. This was an inter-provincial motion to change.
[4]. The Applicant lives in Nova Scotia, so he told his side of the story to a judge in that province.
[5]. The Respondent lives in Ontario, so now she’s told me her side of the story here in Hamilton.
[6]. Two judges. Each hearing different parts of the case. On different dates, many months apart. Having to make decisions on the same case.
[7]. It may sound good on paper.
[8]. It may even seem like the only practical way to deal with motions to change support, where parties live in different parts of the country and neither can afford to travel.
[9]. But except in the simplest of cases, it creates an almost impossible task for judges who are:
a. Accustomed to hearing both sides of the story at the same time.
b. Unaccustomed to wading into the realm of advocacy, by leading or cross-examining the evidence.
PROVISIONAL ORDERS
[10]. The Applicant seeks to change a March 23, 1989 Nova Scotia support order which was made under the Divorce Act.
[11]. The Interjurisdictional Support Orders Act (ISOA) does not apply to applications to vary support orders made under the federal Divorce Act. The ISOA only applies where an individual seeks to vary support orders made pursuant to provincial statutes: Durso v. Mascherin, 2013 ONSC 6522.
[12]. Sections 18 and 19 of the Divorce Act apply:
18(1) Definitions In this section and section 19,
"Attorney General", in respect of a province, means
(a) for Yukon, the member of the Executive Council of Yukon designated by the Commissioner of Yukon,
(b) for the Northwest Territories, the member of the Executive Council of the Northwest Territories designated by the Commissioner of the Northwest Territories,
(b.1) for Nunavut, the member of the Executive Council of Nunavut designated by the Commissioner of Nunavut, and
(c) for the other provinces, the Attorney General of the province,
and includes any person authorized in writing by the member or Attorney General to act for the member or Attorney General in the performance of a function under this section or section 19;
"provisional order" means an order made pursuant to subsection (2).
18(2) Provisional order
Notwithstanding paragraph 5(1)(a) and subsection 17(1), where an application is made to a court in a province for a variation order in respect of a support order and
(a) the respondent in the application is ordinarily resident in another province, and has not accepted the jurisdiction of the court, or both former spouses have not consented to the application of section 17.1 in respect of the matter, and
(b) in the circumstances of the case, the court is satisfied that the issues can be adequately determined by proceeding under this section and section 19,
the court shall make a variation order with or without notice to and in the absence of the respondent, but such order is provisional only and has no legal effect until it is confirmed in a proceeding under section 19 and, where so confirmed, it has legal effect in accordance with the terms of the order confirming it.
18(3) Transmission Where a court in a province makes a provisional order, it shall send to the Attorney General for the province
(a) three copies of the provisional order certified by a judge or officer of the court;
(b) a certified or sworn document setting out or summarizing the evidence given to the court; and
(c) a statement giving any available information respecting the identification, location, income and assets of the respondent.
18(4) Idem On receipt of the documents referred to in subsection (3), the Attorney General shall send the documents to the Attorney General for the province in which the respondent is ordinarily resident.
18(5) Further evidence
Where, during a proceeding under section 19, a court in a province remits the matter back for further evidence to the court that made the provisional order, the court that made the order shall, after giving notice to the Applicant, receive further evidence.
18(6) Transmission Where evidence is received under subsection (5), the court that received the evidence shall forward to the court that remitted the matter back a certified or sworn document setting out or summarizing the evidence, together with such recommendations as the court that received the evidence considers appropriate.
19(1) Transmission On receipt of any documents sent pursuant to subsection 18(4), the Attorney General for the province in which the respondent is ordinarily resident shall send the documents to a court in the province.
19(2) Procedure Subject to subsection (3), where documents have been sent to a court pursuant to subsection (1), the court shall serve on the respondent a copy of the documents and a notice of a hearing respecting confirmation of the provisional order and shall proceed with the hearing, in the absence of the applicant, taking into consideration the certified or sworn document setting out or summarizing the evidence given to the court that made the provisional order.
19(3) Return to Attorney General
Where documents have been sent to a court pursuant to subsection (1) and the respondent apparently is outside the province and is not likely to return, the court shall send the documents to the Attorney General for that province, together with any available information respecting the location and circumstances of the respondent.
19(4) Idem On receipt of any documents and information sent pursuant to subsection (3), the Attorney General shall send the documents and information to the Attorney General for the province of the court that made the provisional order.
19(5) Right of respondent
In a proceeding under this section, the respondent may raise any matter that might have been raised before the court that made the provisional order.
19(6) Further evidence
Where, in a proceeding under this section, the respondent satisfies the court that for the purpose of taking further evidence or for any other purpose it is necessary to remit the matter back to the court that made the provisional order, the court may so remit the matter and adjourn the proceeding for that purpose.
19(7) Order of confirmation or refusal
Subject to subsection (7.1), at the conclusion of a proceeding under this section, the court shall make an order
(a) confirming the provisional order without variation;
(b) confirming the provisional order with variation; or
(c) refusing confirmation of the provisional order.
19(7.1) Guidelines apply
A court making an order under subsection (7) in respect of a child support order shall do so in accordance with the applicable guidelines.
19(8) Further evidence
The court, before making an order confirming the provisional order with variation or an order refusing confirmation of the provisional order, shall decide whether to remit the matter back for further evidence to the court that made the provisional order.
19(9) Interim order for support of children
Where a court remits a matter pursuant to this section in relation to a child support order, the court may, pending the making of an order under subsection (7), make an interim order in accordance with the applicable guidelines requiring a spouse to pay for the support of any or all children of the marriage.
19(9.1) Interim order for support of spouse
Where a court remits a matter pursuant to this section in relation to a spousal support order, the court may make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the making of an order under subsection (7).
19(10) Terms and conditions
The court may make an order under subsection (9) or (9.1) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.
19(11) Provisions applicable
Subsection 17(4), (4.1) and (6) to (7) apply, with such modifications as the circumstances require, in respect of an order made under subsection (9) or (9.1) as if it were a variation order referred to in those subsections.
19(12) Report and filing
On making an order under subsection (7), the court in a province shall
(a) send a copy of the order, certified by a judge or officer of the court, to the Attorney General for that province, to the court that made the provisional order and, where that court is not the court that made the support order in respect of which the provisional order was made, to the court that made the support order;
(b) where an order is made confirming the provisional order with or without variation, file the order in the court; and
(c) where an order is made confirming the provisional order with variation or refusing confirmation of the provisional order, give written reasons to the Attorney General for that province and to the court that made the provisional order.
[13]. These sections allow a bifurcated process where former spouses who reside in different provinces in Canada may file applications for variation of existing orders made pursuant to the Divorce Act in the province where they reside:
a. A court in the Applicant’s province may make a provisional order when the Respondent spouse does not attend or participate in the hearing of the application.
b. At that stage the order made under section 18(2) of the Divorce Act is provisional only and has no legal effect until it is confirmed.
c. That provisional order is then sent to the court in the Respondent’s jurisdiction for a confirmation hearing: to be confirmed, denied, or varied.
[14]. The court conducting a confirmation hearing has the following options:
Confirm the provisional order without variation (s. 19(7)(a));
Confirm the provisional order with variation (s. 19(7)(b));
Refuse confirmation of the provisional order (s. 19(7)(c)); or
Adjourn and remit the matter back to the court that made the provisional order, for further evidence, before making any of the above orders (s. 19(6), (8)).
[15]. This two-step legislative regime is intended to relieve the unfairness to a spouse of being deprived of access to a variation because the other spouse is residing in another province. Bishop v. McKinney, 2015 ONSC 5565.
[16]. But the problem with this procedure is that neither court hears from both parties at the same time. The court hearing from one party may not know whether there might be evidence contradicting that party’s position.
[17]. And with no one present to formally cross-examine or challenge evidence at either hearing, the respective judges involved in the process are each placed in the difficult and conflicted position of not only weighing the evidence but also eliciting and testing it.
[18]. In Cox v. Cox, 2009 BCSC 1609 a British Columbia judge presiding over a confirmation hearing was troubled by the lack of evidence presented to the Alberta court in support of the provisional order.
a. After considering the evidence from both parties and noting that “[t]he evidence before this court presents a very different picture than the evidence presented to the Alberta Court,” Griffin J. refused to confirm the provisional order.
b. Instead, the confirmation judge invited the party who obtained the provisional order to appear at the confirmation hearing by telephone and to file additional evidence as to his financial circumstances.
c. This approach was taken to avoid the inherent problem of having the matter bounce back and forth between the two jurisdictions without a single judge ever hearing from both parties at once.
d. Section 17.1 of the Divorce Act was cited as a justification for this manner of proceeding:
17.1 Variation order by affidavit, etc.
Where both former spouses are ordinarily resident in different provinces, a court of competent jurisdiction may, in accordance with any applicable rules of the court, make a variation order pursuant to subsection 17(1) on the basis of the submissions of the former spouses, whether presented orally before the court or by means of affidavits or any means of telecommunication, if both former spouses consent thereto.
[19]. The approach in Cox may sometimes be appropriate depending on a number of factors, including the extent of any factual dispute or uncertainty. A simple clarification or update might reasonably be achieved by teleconference.
[20]. But where significant factual and credibility determinations need to be made, the limitations of the separate-judge/separate-hearing process cannot be overcome by last minute phone calls giving the Applicant an opportunity to shore up his or her case.
[21]. All of which, perhaps, serves as a reminder that the provisional order regime – while useful – need not automatically apply in every case where spouses in a variation proceeding live in different provinces.
a. Section 18(2)(b) sets out a threshold requirement on the court in the Applicant’s province. Before embarking on the bifurcated hearing process the court must be “satisfied that the issues can be adequately determined by proceeding under this section and section 19.”
b. At the very least this requires that the first judge presented with the variation application must, as a preliminary matter, determine whether the two-stage provisional order regime is fair and appropriate in the circumstances of this particular case.
c. The process may be “adequate” where the first court is satisfied that the Applicant has sufficient evidence to raise a prima facie entitlement to a variation, and the Respondent will then have an opportunity to tender responding evidence, so that a determination can be made on a balance of probabilities. Bishop v McKinney (supra).
d. Section 19 does not expressly require the confirmation judge to make a similar threshold determination as to the efficacy or adequacy of the process.
e. However, sections 18 and 19 of the Divorce Act work together to constitute one single process involving two separate judges respectively presiding over a provisional hearing and a confirmation hearing.
f. If the first judge – who has less information – has a statutory obligation to determine whether the process can adequately deal with the case; then clearly the second judge – who has more information – should be required (or at least entitled) to make a similar threshold determination as to whether the bifurcated process is fair and adequate for these parties.
g. Perhaps the first judge’s threshold section 18(2)(b) determination should also be regarded as “provisional” and subject to confirmation by the second judge.
h. Either way, neither judge should simply presume they are stuck with this cumbersome and imprecise process, if it becomes clear at either stage that the issues cannot be adequately determined through the provisional order process.
[22]. Having created this two-step process, the Divorce Act provides no guidance as to how the confirmation court should reconcile evidence arising at different hearings with different participants.
a. The first provisional hearing and the second confirmation hearing constitute one single process. Kyler v. Kyler (1992), 95 D.L.R. (4th) 90 (Sask. Q.B.).
b. The confirmation judge must consider the materials filed by both parties; the Respondent’s evidence and submissions heard at the second hearing; and a transcript of the Applicant’s evidence and submissions at the first hearing.
c. The Respondent may raise any matter that might have been raised before the court that made the provisional order.
d. The confirming judge is not bound by the provisional order made by the originating jurisdiction.
e. Similarly, the confirming judge is not bound by the factual findings made by the previous court.
f. The confirming court is fully entitled to reconsider the evidence that was presented at the provisional hearing. It can make its own findings of fact.
g. In applying the law and considering the evidence, the confirmation judge may arrive at different conclusions than the judge who made the provisional order.
h. The confirming court does not play an appellate role, but rather makes a decision based on the full evidentiary record available from the entire bifurcated process. Spytkowsky (Bracken) v. Spytkowsky, 2010 ONSC 1760, Pattison v. Craig, [1995] S.J. No. 184 (Sask. Q.B.).
i. Ultimately, the second court must decide the case on its merits and determine whether it agrees with the first court’s decision.
[23]. The bifurcated process makes credibility determinations challenging – particularly since the confirmation judge has the benefit of observing and interacting with only the Respondent:
a. A confirmation court is entitled to assess the credibility of the evidence provided at both hearings.
b. However the lack of cross-examination of either party undermines each court’s ability to fully and consistently assess credibility.
c. The second judge must consider whether the first judge made credibility findings about the Applicant. New Brunswick (Attorney General) v. Theresa, 2012 NBQB 49.
d. While the second judge is not bound by the first judge’s credibility determinations, some of the case law suggests deference should be accorded to those credibility determinations as the judge who made the provisional order had the advantage of hearing directly from the Applicant.
e. But what if the first judge fully believes the Applicant, and the second judge fully accepts the contradictory evidence of the Respondent?
f. The bifurcated process raises unanswered concerns about overall weighing of evidence and findings of fact.
[24]. To further contort the adjudicative process, the second judge has the option of remitting the matter back to the first judge for more evidence.
a. For a court to refuse to confirm (or confirm with variation) a provisional order, the court must satisfy itself that the Applicant has had the opportunity to reply to any matters raised by the Respondent in the confirmation proceedings.
b. Sometimes it will be necessary to remit the matter back to the originating jurisdiction to allow the Applicant to respond to evidence or new allegations raised at the confirmation hearing.
c. Where a confirmation judge concludes the Applicant may be able to provide further and better information as to an essential element of his case, the Applicant should be provided with the opportunity to file further evidence and the matter should be remitted back to the court which made the provisional order. Sidhu v. Sidhu, 2014 BCSC 296.
d. But sending the matter back to the first judge for more evidence is only an option; not a presumed or mandatory extension of the process.
e. Notwithstanding the logistical complications when parties live in different provinces, the onus remains on the party seeking the variation to establish changed circumstances.
f. Where the Applicant had the opportunity to put evidence before the court at the first hearing, and that evidence does not establish a basis to vary a support order, the matter should not go back to the court where the provisional order was made for the Applicant to have “another kick at the can.” Vanderlans v. Vanderlans, 2008 NLCA 37.
[25]. Remitting the matter for further consideration by the first judge can create more complications and delays.
a. Sending a file from one province to another generally entails months to arrange a court date.
b. By the time the confirmation hearing takes place, the Applicant’s evidence in support of the provisional hearing may already be out of date.
c. A second hearing by the first judge may take place up to a year after the original provisional order was made.
d. If the Applicant provides fresh or updating evidence at his second hearing – in the absence of the Respondent -- shouldn’t the Respondent be notified and given the chance to respond?
e. When will it end?
[26]. As stated, this proceeding is under the Divorce Act. But many of these same logistical and evidentiary concerns arise in relation to ISOA applications.
APPLICANT’S MOTION
[27]. The background:
a. The parties were married on August 17, 1979 in Hamilton.
b. They separated on February 18, 1985.
c. They have two sons, Aaron, born June 12, 1980 (now 35); and Brodie, born February 8, 1982 (now 33).
d. The parties were living in Hamilton when they divorced.
e. The March 4, 1985 Decree Nisi granted custody to the wife (the Respondent herein); with the husband (the Applicant herein) to pay $600.00 per month per child, together with $1,400.00 in annual tuition for each child.
f. The Applicant then moved to Nova Scotia where he brought a motion to change, and the Respondent mother consented to a variation.
[28]. The March 23, 1989 consent order issued in the Supreme Court of Nova Scotia included the following terms:
a. During any month when the Applicant is unemployed, he is to pay $400.00 per month as support for both children.
b. During any month when the Applicant is employed, he is to pay $700.00 per month as support for both children.
c. The Applicant must provide the Respondent with copies of his unemployment insurance cheque stubs or other relevant documents to prove any period of unemployment.
d. If the Applicant does not provide proof of unemployment, he shall be deemed to be employed and he will be required to pay the $700.00 per month.
e. Arrears of child support pursuant to the March 4, 1985 Ontario order were fixed at $11,200.00.
f. The Applicant was to pay $550.00 immediately toward the arrears.
g. Thereafter, repayment of arrears would also be subject to his employment status: $50.00 per month if unemployed; $200.00 per month if employed.
[29]. On November 1, 2013 – almost two years ago -- the Applicant commenced a variation proceeding in Nova Scotia.
[30]. On April 1, 2014 -- a year and a half ago -- he appeared with counsel for a hearing before Justice Jollimore of the Supreme Court of Nova Scotia (Family Division). On May 28, 2014 a provisional order was issued, which included the following terms:
a. There was a finding that Aaron ceased to be a child of the marriage on June 12, 1999 (his 19th birthday). Child support was terminated for Aaron as of that date.
b. There was a finding that Brodie ceased to be a child of the marriage on February 9, 2001 (his 19th birthday). Child support was terminated for Brodie as of that date.
c. The Applicant’s child support obligation for the period March 1, 1989 to April 1, 1999 was varied to $0 for each of those months.
d. The Applicant’s child support obligation for the period from April 1, 1999 to the date when each child ceased to be a child of the marriage was rescinded.
e. A moratorium was placed on the collection of child support arrears which had been fixed in the sum of $11,200.00 in the consent order of March 23, 1989.
[31]. Stated differently, the Applicant was relieved of responsibility to pay even a penny of the approximately $124,655.48 in arrears pursuant to the two orders he consented to:
a. None of the $11,200.00 in arrears pursuant to the March 23, 1989 order – even though that amount already represented a reduction from what he actually owed at the time.
b. Nothing toward arrears accumulating after the March 23, 1989 order.
[32]. On September 21, 2015 – 17 months after the Applicant testified at the Nova Scotia hearing – the self-represented Respondent mother testified at the confirmation hearing in this court.
[33]. I have now had an opportunity to consider all of the evidence including:
a. The Applicant’s written materials filed in Nova Scotia.
b. The Respondent’s reply materials.
c. A transcript of the Applicant’s April 1, 2014 hearing before Justice Jollimore.
d. The oral evidence of the Respondent.
[34]. The child support calculations herein can be divided into four basic time periods:
March 4, 1985 to March 22, 1989.
March 23, 1989 to April 1, 1999.
April 1, 1999 to March 2002.
March 2002 to April 2005.
[35]. The last two time periods (which the Nova Scotia court treated as a single period) are easiest to deal with.
APRIL 1, 1999 TO MARCH 2002 & MARCH 2002 TO APRIL 2005
[36]. Justice Jollimore accepted the Applicant’s evidence that:
a. The Applicant returned to Ontario and reconciled with the Respondent on April 1, 1999.
b. They remained reconciled until March 2002 with the Applicant then moving back to Nova Scotia.
c. There should be no child support payable during the period of reconciliation.
d. By the time they separated again in March 2002, neither child was entitled to support because by then each boy had turned 19.
[37]. The Respondent contradicted the Applicant’s evidence – although in the final analysis it won’t change the result.
a. She testified the parties never reconciled.
b. She explained that she ran into so much financial difficulty because the Applicant wasn’t paying support that by 1998 she was forced to sell her home, and by 1999 she was looking for inexpensive rental accommodation for herself and her sons.
c. She said coincidentally in 1999 the Applicant came to Ontario and expressed interest in re-establishing a relationship with his sons.
d. She testified that out of expedience they decided they would move into the same rental accommodation in Hamilton. She said the arrangement saved them both money and she welcomed the opportunity for the Applicant to suddenly become involved in the children’s lives.
e. But she insisted it was nothing other than a “business” cost-sharing arrangement.
[38]. In other circumstances, this factual dispute – did the parties reconcile or not? – might require this court to send the matter back to Nova Scotia to allow the Applicant to respond to the Respondent’s evidence on this point.
[39]. But fortunately the Respondent has simplified the discussion by conceding that the Applicant should not be required to pay child support after April 1, 1999.
[40]. That concept – not pursuing a claim when you don’t have any evidence – should apply to the Applicant as well.
MARCH 23, 1989 TO APRIL 1, 1999
[41]. This is the most contentious period.
[42]. The March 23, 1989 consent order was specifically crafted to be sensitive to fluctuations in the Applicant’s employment and income.
a. If he was working (irrespective of his income) he would pay $700.00 per month.
b. If he was unemployed he would pay $400.00 per month.
c. But the onus was clearly on him: For any month in which he wanted to pay the reduced amount, he had to provide proof that he wasn’t working.
[43]. Instead, for the most part the Applicant provided nothing.
a. No support (not even at the “unemployed rate”).
b. No proof of his employment status.
[44]. The Applicant and his lawyer presented the following evidence and submissions at the April 1, 2014 hearing in support of the provisional order:
a. He was unemployed “the majority of the time.”
b. He can’t tell the court dates and times.
c. He thinks he was unemployed about 75 per cent of the time.
d. He is a seaman, second engineer.
e. He said his employment was pretty sporadic.
f. He lost the book that had dates when he was working “or had it stolen actually.”
g. Because of the passage of time his “evidence is really poor”.
h. He made some payments but not all.
i. He said he probably provided proof of unemployment to the Respondent at the start but “it’s going back a number of years now. I can’t remember”.
j. He said his current relationship with the Respondent is that they are good friends.
k. He said he paid support about a quarter of the time.
l. He admitted “I wasn’t very diligent” with the payments.
[45]. Interestingly, during submissions the Applicant’s counsel made some candid statements to the Nova Scotia court about weaknesses in the motion to change.
a. “We have the burden of proof with respect to payment of arrears. I would respectfully submit, I don’t think Mr. Chree has been able to meet that.”
b. “I do understand that the evidence is not very good with respect to the time period 1989 to 1999. Mr. Chree does not have a good recollection.”
[46]. Nonetheless, the Nova Scotia court concluded:
a. The Applicant’s sporadic employment and periods of involuntary unemployment constitute a material change in circumstances justifying a complete rescission of any payments.
b. If the Applicant had provided income information the court “might have been able to make some determination of what he ought to have paid.” But in the absence of income verification from the Applicant, the court concluded he should make no payments.
c. The court also considered that it was “dealing with children who are well beyond the age of dependence on their father.”
d. The court concluded that even though there was no basis to rescind pre‑1989 arrears which had been fixed at $11,200.00 in the March 23, 1989 order – nonetheless, collection of any of those arrears would be suspended indefinitely pursuant to a moratorium.
[47]. The Respondent testified at length, and with great detail. I accept her evidence on the following points:
a. The Applicant has a 30 year history of effectively ignoring his child support obligations.
b. The Applicant had no excuse for failing to pay support required pursuant to the March 19, 1985 order.
c. She gave him a break by fixing those arrears at $11,200.00 in the March 23, 1989 order.
d. Similarly she gave him a break by agreeing to a two-tiered level of ongoing child support.
e. But even though the onus was on him, the Applicant didn’t provide her with proof of periods of unemployment.
f. The Applicant has never explained why he didn’t provide proof of any period of unemployment.
g. The Applicant has never explained why he didn’t pay the $400.00 per month for any month when he says he was unemployed.
h. She denied receiving payments directly from the Applicant.
i. She produced a “Record of Service in Norwegian ships” booklet left behind by the Applicant.
j. The Applicant has dual British and Canadian citizenship which facilitated a long history of working on vessels throughout the world.
k. By the Applicant’s own admission he is issued written log books which clearly set out verifiable information as to when and where he worked on ships.
l. The Respondent also produced a letter from the Applicant’s former lawyer in Nova Scotia dated August 6, 1991 referring to work commitments preventing summer access.
m. Apart from never providing verification as to periods of employment or alleged unemployment, the Applicant has provided no information about efforts to obtain replacement employment.
n. The Applicant’s disregard of his support obligations created enormous financial problems for the Respondent.
[48]. I accept the Respondent’s evidence and submissions that the moratorium on collection of the $11,200.00 in pre‑March 23, 1989 arrears is without factual or legal basis.
[49]. The Nova Scotia court dealing with the first phase of this bifurcated hearing did not have the advantage of hearing the responding evidence of the Respondent.
[50]. Any doubt about the Respondent’s position was resolved at the confirmation hearing:
a. She consents to termination of child support as of April 1, 1999.
b. She does not consent to any reduction, rescission, forgiveness or moratorium prior to that date.
[51]. The Respondent’s evidence confirms the weaknesses largely acknowledged by the Applicant’s counsel at the 2014 hearing:
a. The onus was on the Applicant to establish a material change in circumstances.
b. The onus was on the Applicant to establish why the existing order should be changed.
c. The Applicant has not met the evidentiary onus.
[52]. It is not necessary or appropriate to remit this matter back to Nova Scotia for the Applicant to provide further information.
[53]. The bifurcated provisional order system has already worked to his significant advantage.
[54]. If the bifurcated provisional order system is intended to save money or promote efficiency, this case is a classic example that neither objective is being promoted.
[55]. If anyone ever did a financial analysis of the real cost of having two judges, in different provinces, in different years, trying to piece these puzzles together – it would soon become apparent that better options exist.
[56]. The order of Justice Jollimore dated May 28, 2014 is confirmed only to the extent that the Applicant’s obligation to pay child support pursuant to the order of March 23, 1989 terminates in relation to both children effective April 1, 1999. Prior to that date, for any period that the Applicant did not provide proof of unemployment, his support payments shall be in the sum of $700.00 per month.
[57]. The moratorium with respect to arrears fixed as of March 23, 1989 is lifted. Those arrears are enforceable, but the $11,200.00 is reduced by $550.00.
[58]. Beyond that, there is no reduction or rescission of arrears arising prior to April 1, 1999.
[59]. There is no restriction with respect to enforcement.
[60]. Support deduction order to issue.
Pazaratz, J.
Released: October 22, 2015
COURT FILE NO.: F463/98
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
WILLIAM McLEOD CHREE
Applicant
-and-
SHEILA MAE NOBLE CHREE
Respondent
REASONS FOR JUDGMENT
The Honourable Mr. Justice Pazaratz
Released: October 22, 2015