SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-97-34074-01

DATE: 2015 12 09

RE: SIMON GREGORY, Applicant

v.

GERALDINE CARMEN HOLMES (GREGORY), Respondent

BEFORE: EMERY J.

COUNSEL: Sofia Dharamshi, for the Respondent Geraldine Carmen Holmes

Rory W. Krenz, for the Applicant Simon Gregory

HEARD: In writing

ENDORSEMENT

[1] The applicant, Simon Gregory, obtained a provisional order from Justice Joyce of the Supreme Court of British Columbia on March 23, 2015 under section 18 of the Divorce Act to vary the final order made by Justice G. D. Lemon of the (Ontario) Superior Court of Justice on March 4, 2011. The matter comes before me as a judge of this court on a Notice of Confirmation Hearing in writing under section 19 of the Divorce Act.

[2] The operative paragraphs of the provisional order read as follows:

a. the obligation of Simon Gregory to pay child support to Geraldine Carmen Holmes for the support of Jordan Elizabeth Gregory shall be retroactively terminated as of May, 2013;

b. the obligation of Geraldine Carmen Holmes to pay child support to Simon Gregory for the support of the Bailey Victoria Gregory shall be retroactively terminated as of May 2014; and

c. any child support arrears owed by Simon Gregory to Geraldine Carmen Holmes shall be offset by any child support arrears owed by Geraldine Carmen Holmes to Simon Gregory, including the arrears accumulated from May 2013 until April 2014.

[3] Ms. Holmes agrees with paragraph 1(a) and (b) of the provisional order, but opposes confirmation of paragraph 1(c). In paragraphs 28 and 29 of her affidavit sworn on October 19, 2015, Ms. Holmes states as follows:

28. I agree with the facts as stated by Simon where it concerns the Table amount of child support owed for both Bailey and Jordan, namely that child support for Jordan should terminate as of May 1, 2013 and that child support for Bailey should terminate as of April 16, 2014.

29. However, I disagree that:

a) Simon has met all of his support obligations. Additional support is owed for unpaid s. 7 expenses that were expressly agreed to and ordered in the March 4, 2011 Final Order;

b) Simon should be permitted to pay his existing arrears in the nominal amount of $200.00 per month, in complete contravention of the March 4, 2011 Order that was consented and agreed to between the parties.

[4] Mr. Gregory obtained the provisional order from the Supreme Court of British Columbia without notice to Ms. Holmes. This is permitted under section 18(2) of the Divorce Act. However, any variation order made under section 18 has no legal effect until it is confirmed under section 19 by the court having jurisdiction in the province where the responding party resides. Section 18 further provides that where the provisional order is confirmed with or without variation, the order has legal effect in accordance with the terms of the order confirming it.

[5] Ms. Holmes received notice of the request for confirmation after Justice Joyce made his order and the court materials were transmitted to the court office in Brampton. Ms. Holmes has retained Sofia Dharamshi as counsel in Ontario to oppose confirmation of the provisional order.

[6] I have before me the following materials that were filed by Mr. Gregory with the court in British Columbia or filed by Ms. Holmes here:

1. Form A - Support Variation Application filed by Mr. Gregory with the Supreme Court of British Columbia in Chilliwack, B.C. on January 1, 2015 (also stamped by the court on March 23, 2015), with the following attachments:

(a) Final order made by Justice G. D. Lemon of the (Ontario) Superior Court of Justice dated March 4, 2011;

(b) Divorce judgment granted by Justice Kruzick of the Ontario Court (General Division) dated May 27, 1997;

(c) Order made by Justice Walters of the Ontario Court (General Division) dated March 21, 1997.

2. Form B – Identification Form filed by Mr. Gregory with the Supreme Court of British Columbia;

3. Form K – Financial Statement dated November 20, 2014 filed by Mr. Gregory with the Supreme Court of British Columbia;

4. Form M – Evidence to Support Variation of a Support Order dated November 20, 2014 filed by Mr. Gregory with the Supreme Court of British Columbia;

5. Transcript of the proceedings in chambers before Justice Joyce on February 16, 2015;

6. Transcript of the proceedings in chambers before Justice Joyce on March 23, 2015;

7. Provisional Order made by Justice Brian M. Joyce of the Supreme Court of British Columbia on March 23, 2015;

8. Affidavit sworn by Geraldine Carmen Holmes on October 19, 2015, with exhibits, filed with the (Ontario) Superior Court of Justice at Brampton;

9. Form N – Respondent’s Answer to Application sworn by Ms. Holmes on October 19, 2015;

10. Form K – Financial Statement of Ms. Holmes dated October 19, 2015;

11. Form H – Special Expense Claim filed by Ms. Holmes;

12. Form 37 - Notice of Confirmation Hearing issued by the (Ontario) Superior Court of Justice.

[7] The affidavit of Ms. Holmes shows that:

1. Justice Lemon’s order dated March 4, 2011 was based on the partial judgment of Justice Walters made on March 21, 1997;

2. According to paragraph 6(b) of Justice Lemon’s order, Mr. Gregory was to provide her with his income tax returns and notices of assessment each year since 2011. According to Ms. Holmes, Mr. Gregory has failed to disclose this information to her.

3. There is a major disparity between the incomes of Ms. Holmes and Mr. Gregory, compounded by the fact that Mr. Gregory withdraws funds every year from his DPSP available through his employer to supplement his income. On average, Ms. Holmes has an income that ranges between $70,000 and $78,000 a year, while Mr. Gregory’s income ranges between $203,000 and $234,000 a year, inclusive of his DPSP withdrawals.

4. Ms. Holmes has conducted an analysis of total incomes according to the information available to her on a per year basis. Ms. Holmes has then calculated the respective child support obligations of the parties. The income for Mr. Gregory for 2014 is unknown, and therefore his proportionate to income share of section 7 expenses for Jordan’s education was not quantified.

5. Mr. Gregory has consistently failed to be forthcoming about his income or his assets. Ms. Holmes states in her affidavit that in his sworn financial statement of November 20, 2014, Mr. Gregory has failed to indicate what he has withdrawn from his DPSP, even though she states he has done so every year without fail.

6. Ms. Holmes deposes that Jordan has consistently provided to Mr. Gregory copies of all of her school invoices. Ms. Holmes deposes that she has email records where Jordan advises her that she would be prevented from enrolling into school the following year if her fees were not paid promptly. Each term, Ms. Holmes had to provide Jordan with the funds to keep her in school until her student loans were received.

7. Mr. Gregory has failed to pay his proportionate share of Jordan’s postsecondary school expenses as required under Justice Lemon’s order. The total amounts are as follows:

(a) University of Toronto: 2011 Fall to 2012 Winter fees $6,907.93

(b) University of Toronto: 2012 Summer fees $2,329.02

(c) University of Toronto: 2012 Fall to 2013 Winter fees $6,530.90

Total $15,767.85

8. Ms. Holmes has attached a copy of these fee invoices to her affidavit as Exhibit “D”.

9. Ms. Holmes deposes that Mr. Gregory’s proportionate share to income for Jordan’s expenses in each of 2011, 2012 and 2013 would be 76%, for a contribution of at least $11,855.13 for those years.

[8] Justice Lemon’s order further provides in paragraph 6 that on an annual basis, Mr. Gregory shall provide to Ms. Holmes the following financial disclosure:

1. commencing in 2011, copies of (his) annual profit sharing statements with respect to his deferred profit sharing plan (“DPSP”) available through his employment with McDonald’s Restaurants of Canada Limited are to be provided no later than June 30th; and

2. commencing in 2011, copies of (his) annual income tax returns and notices of assessment and reassessment are to be provided no later than June 30th, to determine his reported income.

[9] This disclosure requirement is important because Justice Lemon orders at paragraph 8 that:

“The parties will adjust the Table amount of child support paid each calendar year based on the parties’ reported incomes for that calendar year, as of January 1, 2010. The parties shall then determine the appropriate Table amount of the parties’ child support obligation for the applicable calendar year, in accordance with the Federal Child Support Guidelines. If a party has underpaid the Table amount of his or her child support obligation for the applicable calendar year, he or she shall provide to the other party the additional amount owing for the applicable calendar year within 30 days. If a party has overpaid the Table amount of his or her child support obligation for the applicable calendar year, he or she may deduct the overpayment from his or her current child support over 12 months in equal instalments.”

[10] Ms. Holmes seeks an order from this court imposing terms on any confirmation order that Mr. Gregory:

1. pay her $1,000 a month towards the child support arrears and arrears for special and extraordinary expenses he owes under the final order made by Justice Lemon on March 4, 2011;

2. pay Ms. Holmes $10,000 from his Deferred Profit Sharing Plan held for McDonald’s Restaurants by Royal Trust under the order made by Justice Walters on March 21, 1997;

3. provide Ms. Holmes with all annual profit sharing statements with respect to the Deferred Profit Sharing Plan available through his employment with McDonald’s Restaurants of Canada Limited pursuant to paragraph 6(a) and (b) of Justice Lemon’s order;

4. provide full and proper information about his income and expenses, assets and liabilities each year so that a proper determination can be made as to the proportionate share each Ms. Holmes and Mr. Gregory should pay towards the education expenses incurred by Jordan Elizabeth Gregory born October 7, 1990 since she enrolled at the University of Toronto in September, 2011, and;

5. pay at least 76% of those expenses totalling $15,767.85 in the amount of $11,855.13.

ANALYSIS

[11] Under section 19 of the Divorce Act, the court that receives a provisional order must determine whether there is a sufficient basis under section 19(7) to:

(a) confirm the provisional order without variation; or

(b) confirm the provisional order with variations; or

(c) refuse to confirm the provisional order.

[12] I have reviewed the affidavit of Geraldine Holmes sworn on October 19, 2015 that she has filed in response to this proceeding under Family Law Rule 37.1(13). Owing to the bifurcated nature of the process prescribed in section 19 of the Divorce Act, Justice Joyce did not have the benefit of any evidence given by Ms. Holmes when he made the provisional order. This drawback is discussed at length in Chree v. Chree, 2015 ONSC 6480 (SCJ).

[13] Now that I have the evidence from both parties, I am in a better position to adjudicate the merits of the provisional order and whether it should be confirmed, not confirmed or if further evidence is required.

[14] Rather than bringing a motion to change in Ontario for a variation of Justice Lemon’s final order under section 17 of the Divorce Act, Mr. Gregory has chosen to exercise his rights by obtaining a provisional order to vary Justice Lemon’s order under section 18 of the Divorce Act from the Supreme Court of British Columbia; that provisional order is now before me for confirmation under section 19 of the Divorce Act. By choosing to proceed in the manner provided by section 18 and 19, Mr. Gregory is bound by the statutory process and the evidentiary requirements of the courts in two provinces.

[15] The final order that relates to Justice Lemon’s final order is the partial judgment given by Justice Walters on March 21, 1997. I draw this conclusion because it changes those paragraphs of Justice Walter’s partial judgment granted on March 21, 1997 in a proceeding commenced under the Divorce Act. In that partial judgment, Mr. Gregory is ordered to pay child support until the children are no longer “children of the marriage”.

[16] The affidavit of Ms. Holmes addresses the several issues that she considers outstanding with Mr. Gregory under previous orders made by the Ontario courts. Certain of those issues are justiciable under section 19 of the Divorce Act with respect to the provisional order made by the Supreme Court of British Columbia, others are not. For the benefit of the parties, I will set out those matters not relevant to the provisional order. I will then turn to the issues in dispute under the provisional order, leading to the order I am making to remit the matter back to the court in British Columbia with a request for further evidence.

Matters Not Relevant to the Provisional Order

[17] The support variation application does not seek any relief to vary the arrears owed by Mr. Gregory for special and extraordinary expenses under section 7 of the Federal Child Support Guidelines for Jordan. Nor does the application filed by Mr. Gregory in British Columbia address ongoing child support payments to vary paragraph 5 of Justice Lemon’s order that Mr. Gregory pay arrears for child support arrears and for arrears for special and extraordinary expenses at $1,000 per month on the first day of each month that follows until the arrears are paid in full. I therefore consider Justice Lemon’s order to continue against Mr. Gregory in that regard.

[18] The partial judgment granted by Justice Walters in 1997 also requires Mr. Gregory to transfer the sum of $10,000 of his DPSP held by Royal Trust as Trustees for McDonald’s Restaurants of Canada Limited. The parties agreed that this sum should increase by a proportionate share of the appreciation of the DPSP in each year until the same is paid out. Ms. Holmes has deposed in her affidavit that Mr. Gregory has never paid or transferred that sum of $10,000 from his DPSP to her pursuant to the Minutes of Settlement filed, or the partial judgment of Justice Walters dated March 21, 1997. Therefore, that sum is subject to an increase by the proportionate appreciation of the DPSP in each year if left unpaid.

[19] The subsequent Divorce Judgment granted by Justice Kruzick on May 27, 1997 provides that McDonald’s Restaurants of Canada Limited is restrained from paying out the monies under the DPSP until McDonald’s or its Trustee advised that they can divide the plan in accordance with the partial judgment of Justice Walters dated March 21, 1997. This order applies regardless of the beneficiary designation of the DPSP.

[20] From a reading of Justice Lemon’s order dated March 4, 2011 and the preceding orders on which it was based, there are outstanding issues about whether Mr. Gregory has satisfied an equalization order made by this court under the Family Law Act.

[21] The provisional order does not address any issue with respect to any default Mr. Gregory has allegedly made under the partial judgment of Justice Walters for the division, payment or transfer of $10,000, as adjusted for appreciation. This is either because Mr. Gregory did not make it an issue in his application before the Supreme Court of British Columbia, or because the order made under the Family Law Act is enforceable as an outstanding judgment. As a property issue determined under provincial legislation, it is not an order capable of variation under the Divorce Act. I consider this part of Justice Walters’ partial judgment to be an order to remedy net family property disparities between the parties at the time of trial. It is not in respect of a support order as required by section 18 for the issuing court to make a provisional order. Therefore, payment of this outstanding balance is not before me on this hearing.

Issues in Dispute under the Provisional Order

[22] The issue of arrears in child support is acknowledged as outstanding by Mr. Gregory in his own materials. In Form A, Mr. Gregory requested an order terminating the obligation to pay support for Jordan and Bailey as of April 30, 2013 and April 30, 2014, respectively, and an order that the child support owed to him by Ms. Holmes since May 2013 until April 2014 be set off against the child support arrears he owes to Ms. Holmes. However, in the Form M filed with Mr. Gregory’s Form A, Mr. Gregory acknowledges that as of November 20, 2014 the amount of unpaid support arrears owing by him was $14,607.86. He makes this acknowledgment in relation to a voluntary payment arrangement with the Family Maintenance Enforcement Program in British Columbia dated August 28, 2014.

[23] Although Ms. Holmes’ support obligation for Bailey continued for one more year after Mr. Gregory’s ongoing support for Jordan expired, the support payable for Bailey was much less than the arrears payable for Jordan. There is still a balance payable by Mr. Gregory that is not extinguished by any setoff.

[24] The authority to seek further evidence from an applicant in the province of the issuing court is set out in section 19(6) of the Divorce Act. There is no option under section 19(7) for the receiving court to confirm part of the provisional order and yet seek further information from the court that made the provisional order. I find it significant that not only is the authority to seek further evidence given in a separate subsection of section 19, it is also a subsection that precedes the statutory orders mandated in section 19(7). From this I interpret the will of Parliament to be that the receiving court is entitled to have all evidence from the issuing court so that the court has all the evidence required to exercise its statutory mandate under section 19(7). This interpretation is further supported by a plain reading of the language in section 19 (8) directing the court to decide whether further evidence is required before making any of the orders set out in Section 19(7).

[25] The onus is on the responding party under section 19(6) to satisfy the court that it is necessary for the purpose of taking further evidence or for any other purpose to remit the matter back to the court that made the provisional order. If that onus is met, the Superior Court of Justice in Ontario may remit the matter back to the Supreme Court of British Columbia with the request to obtain such further evidence.

[26] Paragraph 1(c) of the provisional order declares that any child support arrears owed by Mr. Gregory to Ms. Holmes shall be offset by any child support arrears owed by Ms. Holmes to Mr. Gregory, including the arrears accumulated from May 2013 until April 2014. I find that further information is required to calculate:

(a) the true amount of child support payable by Mr. Gregory to Ms. Holmes for Jordan in respect of ongoing child support payable under paragraph 2(b), (c) and (d) of Justice lemon’s order, as adjusted;

(b) Mr. Gregory’s proportionate to income share of special and extraordinary expenses payable under Section 7 of the Federal Child Support Guidelines to Ms. Holmes for Jordan’s post-secondary education expenses;

(c) Bailey’s and Jordan’s travelling expenses to and from Ontario under paragraph 3 of Justice Lemon’s order; and

(d) the arrears ordered under paragraphs 4 and 5 of Justice Lemon’s order.

[27] I am satisfied on the evidence given by Ms. Holmes that there is an outstanding issue with respect to arrears owed for child support and section 7 expenses relating to special and extraordinary expenses for Jordan’s post-secondary education expenses under Justice Lemon’s order. Ms. Holmes has filed a form H to make this special expense claim an issue on the confirmation hearing.

[28] I am therefore adjourning this confirmation hearing to January 31, 2016 and remitting this proceeding back to the Supreme Court of British Columbia at Chilliwack with the request to take or otherwise obtain further evidence under section 19(6) of the Divorce Act as follows:

1. All annual profit sharing statements with respect to Mr. Gregory’s DPSP for each year since 2011 pursuant to paragraph 5(a) of Justice Lemon’s order.

2. A copy of all of Mr. Gregory’s annual income tax returns and notices of assessment and reassessment for each year commencing in 2011 up to and including tax year 2014 pursuant to paragraph 5(b) of Justice Lemon’s order.

3. Any and all readjustments to the child support and proportionate to income contributions payable by Mr. Gregory for each year between 2010 and 2014, inclusive, pursuant to paragraph 8 of Justice Lemon’s order. This information is necessary to calculate the amounts payable by Mr. Gregory for Jordan’s post-secondary education expenses and special and extraordinary expenses under section 7 of the Federal Child Support Guidelines.

4. The readjusted amount of child support that Ms. Holmes owes to Mr. Gregory for Bailey as of May 2014 and the amount of child support that Mr. Gregory is to pay to Ms. Holmes for Jordan as of May 2013, as adjusted pursuant to paragraphs 6, 7 and 8 of Justice Lemon’s order.

5. Proof of payment by Mr. Gregory for all ongoing child support for Jordan he was ordered to pay under Justice Lemon’s order.

6. Proof of payment by Mr. Gregory of his proportionate to income share for Jordan’s postsecondary education expenses under section 7 of the Federal Child Support Guidelines.

7. Proof of payment by Mr. Gregory of all payments he has made in the amount of $1,000 per month to Ms. Holmes on account of child support arrears and arrears for special and extraordinary expenses on the first day of each and every month until the arrears were paid in full pursuant to paragraph 5 of Justice Lemon’s order.

[29] The affidavit sworn by Geraldine Carmen Holmes on October 19, 2015, along with forms H, K and N shall be remitted back to the Supreme Court of British Columbia pursuant to Family Law Rule 37.1(11)(b) along with this endorsement and related order.

[30] The costs of this hearing are reserved until such further evidence is received by this court at Brampton to permit a full consideration of the provisional order under section 19 (7) of the Divorce Act.

Emery J

DATE: December 9, 2015

COURT FILE NO.: FS-97-34074-01

DATE: 2015 12 09

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SIMON GREGORY, Applicant

v.

GERALDINE CARMEN HOLMES (GREGORY), Respondent

COUNSEL: Sofia Dharamshi, for the Applicant

Simon Gregory, self-represented

ENDORSEMENT

EMERY J

DATE: December 9, 2015