Court File and Parties

COURT FILE NO.: 35/38/05571/86 DATE: June 15, 2016 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Kathleen Linda Ritchie, sometimes known as Kathleen Vanderheide, applicant AND: Michael John Ritchie, respondent Ministry of Community and Social Services - Assignee

BEFORE: MITROW J.

COUNSEL: Kathleen Linda Ritchie in person Michael John Ritchie in person Daniela Bertossi, Ministry of Community and Social Services - Assignee

HEARD: in chambers based on written submissions

Endorsement

[1] This matter comes to this court pursuant to sections 18 and 19 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) c.3 [as am. by S.C. 1997, c.1] (“the Act”). This court is being asked to confirm a provisional order made in the Court of Queen’s Bench of Alberta.

[2] Unfortunately, this case has had a lengthy history without resolution. The order below requires some additional information to be forwarded from the Court of Queen’s Bench of Alberta, in the Judicial District of Calgary.

[3] By way of background, Meehan J. granted a divorce judgment in the Supreme Court of Ontario dated March 6, 1989. In the divorce proceeding, the applicant was the petitioner.

[4] Pursuant to the divorce judgment, the respondent was ordered, inter alia, to pay support for the petitioner and two children in the amount of $200 per week, being $100 per week for the petitioner, with the spousal support to be paid until the petitioner “remarries or cohabits with a male person not a blood relative,” and the child support for the two children was in the amount of “$50 per week per child for so long as each child qualifies as a dependant under the Divorce Act.”

[5] The divorce order also contained in paragraph 5 a term noting that the petitioner and the respondent agreed that the arrears outstanding under previous orders be fixed in the sum of $1,800.

[6] Pursuant to the order of Meehan J. dated November 3, 1989, the aforementioned divorce judgment was varied by striking paragraph 5, which was the paragraph dealing with the fixing of support arrears in the amount of $1,800.

[7] In or about early January 2009, the respondent received a letter from the Alberta Maintenance Enforcement Program (“MEP”) advising that he owed $95,249.84 to the applicant in support arrears pursuant to the divorce judgment. At that time the respondent had been living in Alberta for a number of years. The letter from MEP was prompted by a request from the Family Responsibility Office (“FRO”) in Ontario to enforce the divorce judgment.

[8] The respondent then commenced a proceeding in Edmonton, Alberta. On April 30, 2009, the respondent obtained an order of Ross J. made in the Court of Queen’s Bench of Alberta in the judicial district of Edmonton. This order included the following:

a) an order in the nature of a stay of enforcement was granted requiring the Director of the Alberta MEP to stay or otherwise suspend enforcement action against the respondent upon issuance of this order until further court order provided that the respondent make monthly payments as set out below; b) the respondent was required to make monthly payments to the Director of the Alberta MEP towards support arrears in the amount of “$2,200 commencing May 1, 2009 until further Court Order”; and c) the file and the proceedings were transferred permanently to the Court of Queen’s Bench in Calgary from the Court of Queen’s Bench in Edmonton.

[9] The respondent also brought a motion seeking a provisional order extinguishing all arrears of child support and spousal support or, alternatively, that the child and spousal support arrears be reduced substantially; and an order in the nature of a stay of enforcement. The notice of motion provides that the respondent was relying on s. 18 of the Divorce Act.

[10] According to the respondent’s affidavit material filed, his motion for a provisional order came before Strekaf J. in the Court of Queen’s Bench of Alberta on June 25, 2010. The respondent deposes that the court advised his counsel that the court did not have sufficient information to extinguish all support arrears and further income information was requested.

[11] On September 30, 2010, Strekaf J. made a provisional order in the Court of Queen’s Bench of Alberta, in the Judicial District of Calgary that included the following:

a) the arrears of child support owing by the respondent were set at $19,600 (it being noted in the order that the children were ages 26 and 29 at the time of the order); b) the arrears of spousal support owing by the respondent were set at $18,200; c) after applying the payments made to the Director of the Alberta MEP in the amount of $37,400 since April 30, 2009, the final arrears for child and spousal support payable by the respondent were set at $400 as at September 30, 2010; d) the respondent was ordered to pay $400 to the Director of the Alberta MEP on October 1, 2010 in full and final satisfaction of all child and spousal support arrears; and e) this provisional order was declared to be of no force and effect until confirmed in a court of competent jurisdiction.

[12] However, it is noteworthy that the transcript of the proceedings on September 30, 2010 before Strekaf J. was quite brief and, in that transcript, the respondent’s counsel is referring the court to “September 14” (which I take to mean September 14, 2010) where counsel had appeared before Strekaf J. and Strekaf J. rendered her decision with respect to the respondent’s application for a provisional order. The transcript reveals that counsel had incorrectly advised the court as to the amount of money that the respondent had paid and counsel’s submissions on September 30, 2010 included advising the court that, instead of owing $2,600, in fact the respondent only owed $400. The transcript further reveals that Strekaf J. accepted these submissions and included in the provisional order a term that the support arrears are fixed at $400. The respondent deposes that he paid the $400 owing immediately to the Director of the Alberta MEP.

[13] However, the materials recently forwarded to this court did not include the transcript of the proceedings before Strekaf J. for the hearing that appears to have been held on September 14, 2010, at which time the decision was rendered.

[14] In August 2014, the respondent was notified by the Alberta MEP that the provisional order dated September 30, 2010 had not been confirmed. As a result, the respondent deposes that a stay of enforcement was lifted and that the Alberta MEP was enforcing existing arrears that were alleged to be $47,741.52.

[15] This prompted the respondent to retain legal counsel in Ontario in order to obtain an order staying enforcement. This resulted in the respondent obtaining an order of Howard J. dated November 12, 2015 on motion made in the Ontario Superior Court of Justice at Sarnia, Ontario. This order included the following:

a) that the Director of the Family Responsibility Office shall stay enforcement of the divorce judgment dated March 6, 1989 until May 31, 2016 or “until such time as a final confirmation hearing is held and a final order is granted” in relation to the provisional order of Strekaf J. dated September 30, 2010, whichever comes first (my emphasis); b) further, pursuant to s. 56(2) of the Family Responsibility and Support Arrears Enforcement Act, 1996, the Director was ordered to hold and not release to the Ontario Ministry of Social Services or any other individual or organization, all funds which may be provided to it by the Director of the Alberta MEP until May 31, 2016 or until a final confirmation hearing is held and judgment is rendered with regards to the applicability of the provisional order, whichever comes first (my emphasis).

[16] It is noted that Ms. Tukara was present for the Director of the Family Responsibility Office when the order was made by Howard J. and that the Director for the Family Responsibility Office is shown as a party to that motion.

[17] The respondent also had retained new counsel in Calgary, Alberta and commenced a proceeding in the Court of Queen’s Bench of Alberta that resulted in two orders being made by Mahoney J. on June 1, 2015.

[18] One order granted an extension of the current stay of enforcement directing the Director of the Alberta MEP to suspend enforcement proceedings for an additional period of six months.

[19] The second order required the clerk of the court to resubmit the provisional order made by Strekaf J. on September 30, 2010 to the “relevant ISO body.”

[20] It took over six months for the material ordered by Mahoney J. to be received by the Ontario Superior Court of Justice in Sarnia, Ontario. At tab 4 of the continuing record, those materials are date-stamped as having been received December 10, 2015.

[21] The notice of hearing issued by the clerk of the Ontario Superior Court of Justice indicated that the confirmation hearing was to proceed in writing. The return date was shown to be February 11, 2016.

[22] On February 11, 2016, the notice of hearing was placed before Heeney J. He ordered that all counsel who were involved in the order of November 12, 2015 were to be served with the material for the confirmation hearing so that they will have an opportunity to be heard.

[23] A new notice of hearing for a written hearing returnable April 21, 2016 was issued by the clerk. Eventually the matter came before me in chambers on or about May 26, 2016. Subsequent to Heeney J’s order, affidavits were filed by the assignee and the applicant (sworn April 14, 2016 and April 19, 2016, respectively).

[24] At this point in time, this court is unable to deal with the confirmation of the provisional order because the transcript from the proceedings before Strekaf J. when she rendered her decision has not been provided.

[25] As indicated earlier, the notice of hearing for this matter provided that it was to be a written hearing. The order below does however reflect that if any of the parties on the confirmation hearing wish to have an oral hearing then they should advise the trial coordinator in writing for an oral hearing date to be scheduled.

[26] Further, and for clarity, although there is some reference to “ISO” in the materials, this is not a proceeding under the Interjurisdictional Support Orders Act, S.O. 2002, c.13; rather, as noted earlier, this is a confirmation of a provisional order pursuant to the procedures set out in sections 18 and 19 of the Divorce Act.

[27] It is noted that the provisional order sought to be confirmed was made over 5½ years ago. It is not clear from the material filed why the provisional order of Strekaf J. was not dealt with sooner in Ontario.

[28] Counsel for the respective “ISO” units for Ontario and Alberta are asked to assist this court to ensure that the requested transcript is made available on an expedited basis and forwarded to this court.

[29] In the meantime, the deadline of May 31, 2016 referred to in the order of Howard J. has passed. In the circumstances, it is in the interests of justice to extend Howard J.’s order until such time as the confirmation hearing has been dealt with on a final basis. The order below provides for same, but also includes a right of any of the parties present before Howard J. to request an opportunity to make submissions on that issue.

Order

1. The clerk of this court at Sarnia, Ontario shall forward this signed and issued order and the endorsement to the appropriate authority within the Province of Ontario that deals with confirmation of orders pursuant to s. 18 and 19 of the Divorce Act.

2. In order to enable this court to conduct a confirmation hearing pursuant to s. 19 of the Divorce Act in relation to the provisional order made by The Honourable Madam Justice Strekaf in the Court of Queen’s Bench of Alberta, Judicial District of Calgary, on September 30, 2010, this court shall be provided with a transcript of the proceedings before The Honourable Madam Justice Strekaf on September 14, 2010, said proceeding being referred to in the transcript of the proceedings before The Honourable Madam Justice Strekaf on September 30, 2010.

3. The clerk of this court also shall forward a copy of this signed and issued order and the endorsement to the applicant, to Daniela Bertossi (counsel for the assignee), the respondent, the respondent’s Calgary counsel, Dane Tousignant, and to Heather Puchala, counsel for the Family Responsibility Office.

4. On receipt of the transcript, as requested above, the clerk of this court shall forward a copy of the transcript to the applicant, the respondent and the assignee.

5. When forwarding the transcript, the clerk of this court also shall forward to the parties a notice of written hearing. On receipt of the notice of hearing, the applicant, the respondent and the assignee shall each have a period of 21 days to advise the clerk, in writing, with a copy to all other parties, as to whether an oral hearing is requested. If such a request is received by the clerk, then the clerk shall forward a new notice of hearing indicating a new date for an oral hearing. Ninety minutes shall be scheduled. For the purpose of this paragraph, any notice of hearing is deemed received 5 days after it is mailed.

6. Subject to the discretion of the judge presiding at the confirmation hearing, oral argument shall be based on the written record, with no viva voce evidence.

7. All documents that are required to be sent by the clerk of this court shall be forwarded by regular mail to each party and the clerk shall file in the continuing record an affidavit of service confirming service of all documents as required by this order.

8. If any party forwards a request for a written hearing, that request shall be in letter-form forwarded to the clerk of this court by regular mail.

9. Paragraphs 1 and 2 of the temporary order of Howard J. dated November 12, 2015 are vacated (to ensure that the stay continues until the confirmation hearing has been dealt with on a final basis) and are replaced by the following:

   1. The Director of the Family Responsibility Office shall stay any enforcement of the parties’ divorce judgment dated March 6, 1989 until such time as a final confirmation hearing is held and a final order is granted with regards to the applicability of the provisional order of Strekaf J. of the Court of Queen’s Bench of Alberta dated September 30, 2010 (“Provisional Order”);

   2. Pursuant to s. 56(2) of the Family Responsibility and Support Arrears Enforcement Act, the Director of the Family Responsibility Office shall hold and not release to the Ontario Ministry of Social Services, or any other individual or organization, all funds which may be provided to it by the Director of the Alberta Maintenance Enforcement Program on account of alleged arrears owing by the respondent, Michael Ritchie, until a final confirmation hearing is held and judgment is rendered with regards to the applicability of the Provisional Order.

10. Paragraph 9 of this order is made without prejudice to the right of the applicant, respondent, assignee, and the Director of the Family Responsibility Office, on motion, and on notice to all other parties to request that the temporary order of Howard J. be re-instated.

11. Although I am not seized in relation to the confirmation hearing or any motion that may be brought pursuant to paragraph 10 of this order, the trial coordinator shall, if possible, place before me the confirmation hearing, whether in written form or oral hearing, or any motion brought pursuant to paragraph 10 of this order.

“Justice Victor Mitrow” Justice Victor Mitrow Date: June 15, 2016