Court File and Parties

CITATION: Berry v. Bernard, 2016 ONSC 4743

COURT FILE NO.: FS-13-00018754

DATE: 20160726

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Wayne Berry, Applicant

AND:

Fannie Bernard, Respondent

BEFORE: Kiteley J.

HEARD: in writing

ENDORSEMENT PURSUANT TO SECTIONS 18 and 19 of the divorce act

Order Sought

[1] The Applicant has brought a form 14B motion in writing without notice to the Respondent in which he asks for the following:

(a) Order NBFRO (New Brunswick Family Responsibility Office) to immediately removed [sic] restriction via Maintanence [sic] Enforcement Program for Wayne Berry to have a Passport Canada.

(b) Order Passport Canada to return Wayne Berrys [sic] passport, if expired to issue a new one upon a properly completed application.

(c) Order declaring Justice Czutrin order dated August 13, 2013 is in force and full effect.

(d) Wipe out all arrears.

(e) Any other order your Honor feels necessary.

[2] The laws and rules on which Mr. Berry relies are s. 6.1 (mobility), s. 24 (enforcement) and s. 12 (legal) of the Charter of Rights and Freedoms.

[3] All of the record before me is in writing. I have reviewed the entire file in an attempt to piece together what has occurred. For the reasons that follow, on this record I conclude that the Ontario Superior Court of Justice has no jurisdiction to deal with (a) and (b); and in view of the order made in New Brunswick dated December 21, 2015, the Ontario Superior Court of Justice has no jurisdiction to deal with (c) and (d).

Background

[4] The parties were married in August 2003. They have children born in 2008 and 2010. They separated in September 2010.

[5] In December 2011, Ms. Bernard started divorce proceedings in Bathurst, New Brunswick. According to the order dated July 5, 2012, Mr. Berry was served on December 22, 2011 and subsequently moved to Africa without maintaining communication with Ms. Bernard. The hearing was held on July 4, 2012 with counsel acting on behalf of Ms. Bernard and Mr. Berry not present or represented.

[6] Pursuant to the order of Justice Michel A. Robichaud dated July 5, 2012, Ms. Bernard was granted sole custody of the children with access by Mr. Berry as arranged between the parties. Mr. Berry was ordered to pay child support for the children in the amount of $624 per month on the first of each month retroactive to September 1, 2011, based on Mr. Berry’s imputed gross annual income of $44,000 for 2011 and 2012. Mr. Berry was also ordered to pay $429 per month for his share of daycare expenses ($275 per week) retroactive to January 1, 2012 based on his imputed income of $44,000 and her actual income of $75,000, his portion representing 37% of the cost. The order also directed enforcement by the Director of Support Enforcement in the Court of Queens’s Bench of New Brunswick, Family Division, Judicial District of Bathurst.

[7] The order also provided that pursuant to the Marital Property Act, there would be an unequal division of the marital property, specifically that Ms. Bernard would not be required to divide her employment pension plan. Mr. Berry was ordered to pay costs in the amount of $1,000.

[8] In the material filed by Mr. Berry in this court, he takes the position that he was out of the country from February 2012 to the end of July, 2012 and on his return he learned via email that the order had been made. On October 1, 2012, he received a letter from “FSOS” (which appears to refer to the Director of Support Enforcement), indicating that they were going to suspend his passport and at the end of October, 2012 he received a letter asking that he surrender his passport and he appears to have complied.

[9] On June 6, 2013, he caused this application to be issued in which he asked for an order for access and related orders and, in effect, an order varying the order dated July 5, 2012 reducing the child support to $0 per month on the basis of income of $11,916.66 and eliminating the order that required him to pay 37% of the child care expense. In his affidavit sworn June 6, 2013 he said that in November 2012 he received from Ms. Bernard’s lawyer a copy of the order and that he had submitted an inter-jurisdictional support order variation application with ISO on January 31, 2013. He called FRO on May 7, 2013 and was told that he had not used the correct procedure and he would need to seek a local provisional order. In that application, he provided information about his income, indicated that he had two other children residing with him and that the arrears were inhibiting him from sponsoring his spouse. He asked that the court consider undue hardship as a factor.

[10] In an endorsement dated July 25, 2013, Justice Croll adjourned the motion to August 8, 2013 on the basis that duty counsel had advised Mr. Berry to provide an updated financial statement and “information with respect to his job search etc.”

[11] Mr. Berry filed additional material including an affidavit sworn August 6, 2013 in which he indicated that he has a wife and two children and, “due to the arrears”, he is unable to sponsor them to live in Canada as permanent residents.

[12] On August 13, 2013, Mr. Berry attended before Justice Czutrin who conducted a hearing. In a provisional order dated August 13, 2013, Czutrin J. reduced child support to $324 per month commencing September 1, 2011 based on Mr. Berry’s annual income of $22,000 and reduced child support to $43 per month commencing January 1, 2012 based on his annual income of $12,000; and reduced it to $346 per month commencing January 1, 2013 without reference to an income amount.

[13] In his endorsement, Czutrin J. order the preparation of the transcript and directed that the endorsement and the material filed by Mr. Berry be sent to the Attorney General of Ontario and then sent to the Attorney General of New Brunswick pursuant to s. 18 of the Divorce Act. He also noted that “this should be expedited as no support has been paid”.

[14] Mr. Berry brought a form 14 Notice of Motion returnable June 5, 2014 in which he asked for an order without notice requiring Passport Canada to return his passport; an order requiring the court reporter to provide transcripts within 5 business days; and an “order or relief from the impact of the support payments” in the order dated July 5, 2012. In his affidavit sworn May 30, 2014, Mr. Berry said that his wife and two children live in Zambia and “as a result of not getting the support matter settled,” he is unable to sponsor her to stay in Canada and without having a passport, he is unable to visit her in Zambia. His wife had been in Canada but had exhausted her 6 months stay and her extension was denied. If she left Canada, it would take almost two years to get a permanent resident visa after he became eligible to sponsor her. He also said the following:

The New Brunswick FRO refuses to inform me how much has been paid to date.

I have request[ed] from Ontarios FRO a statement showing how much has been paid and have not received one.

Roughly $4000 has been paid in support since Justice Czutrins order.

I have the funds to pay the difference of what has been paid to date and the total amount as required by Justice Czutrins order upon knowing what has been exactly paid to date.

Each time my wife and children leave in the last 2 years, it cost roughly 4000 in travel let alone the emotional impact on the family.

My wife’s visitor visa has expired and her extension was rejected.

[15] In her lengthy endorsement dated June 5, 2014, Mesbur J. noted that the court reporter had not prepared the transcript and accordingly the confirmation hearing had not proceeded. She made an order directing that the transcript be prepared within 10 days and that court staff and staff at the Ministry forward the materials immediately to New Brunswick for a confirmation hearing. In the file there is a letter dated June 6, 2014 from the Superior Court to the ISO Unit of the Ontario Family Responsibility Office enclosing the documents that Mesbur J. had directed be sent to New Brunswick.

[16] On November 17, 2014, on the occasion of the first appearance in the Court of Queen’s Bench in Bathurst, New Brunswick, Mr. Berry was ordered to file his tax returns for 2012, 2013 and 2014 before June 1, 2015.

[17] On the occasion of the second appearance on June 29, 2015, Ms. Bernard disputed the income on which Mr. Berry had relied in support of the provisional order in Ontario. The court directed her to file an affidavit which she did.

[18] I have the transcript of the third appearance on July 9, 2015 that indicates that Ms. Bernard was represented by counsel. The judge heard submissions and reserved decision.

[19] In October, 2015, Mr. Berry brought a form 14B motion without notice in this court in which he asked for relief similar to what is before me as set out in paragraph 1 above. In his affidavit sworn October 1, 2015, he said that he had made an ISO application in the fall of 2012 that was returned May 2013 with instruction to apply through the Ontario Superior Court to vary the order and reduce the arrears. He described the steps taken before Justice Czutrin and in the Court of Queen’s Bench in New Brunswick and said that he was awaiting the decision. He said that he had complied with the order of Czutrin J., that he had been unable to obtain a statement from FRO indicating what was outstanding, along with some information about Ms. Bernard’s financial situation. He referred to a decision of a judge in Quebec Superior Court that he said held that confiscating a passport goes against the Charter of Rights and Freedoms.

[20] I cannot locate any endorsement indicating that the motion was considered.

[21] The written decision of Justice Michel A. Robichaud is dated December 21, 2015 and indicates that he refused to confirm the provisional order and he ordered Mr. Berry to pay costs to Ms. Bernard in the amount of $1,500 within 30 days.

[22] In a letter dated December 21, 2015, the New Brunswick court sent a copy of the decision to the lawyer for Ms. Bernard. The Ontario court file contains a letter dated February 5, 2016 from the Ontario Ministry of Community and Social Services to the Ontario Superior Court of Justice enclosing two certified copies of the decision along with two certified transcripts.

[23] In June, 2016, Mr. Berry launched the Form 14B motion that is before me. In his affidavit sworn June 15, 2016, he repeats much of what he has said previously. In addition, he said that in January 2016 he received a copy of the decision dated December 21, 2015; that the affidavit of Ms. Bernard on which Justice Robichaud relied had not been provided to him; that he challenged the “facts” on which the December 21, 2015 decision was made and gave his version of what had occurred. He expressed considerable frustration with the process involved between the courts in New Brunswick and Ontario.

Conclusion

[24] Mr. Berry has not provided a factum and is self-represented. I have arrived at these conclusions after reviewing the entire file.

[25] Pursuant to s. 18 and 19 of the Divorce Act, the Ontario Superior Court has jurisdiction to hear and consider an application to vary the order dated July 5, 2012. In his order dated August 13, 2013, Czutrin J. exercised that jurisdiction and, pursuant to s. 18(2), that order was provisional. In his order dated December 21, 2015, pursuant to s. 19(7)(c) Justice Robichaud refused to confirm the provisional order. As a result, the order dated July 5, 2012 remains in force.

[26] There is no legal basis for the Ontario Superior Court of Justice to grant the relief sought by Mr. Berry “declaring Justice Czutrin order dated August 13, 2013 is in force and full effect” because it is not in force and cannot be put into effect. It follows that there is no legal basis for this court to “wipe out all arrears”.

[27] This court has no jurisdiction to order the “NBFRO” to do anything. Nor does this court have jurisdiction to order “Passport Canada” to take any steps with respect to Mr. Berry’s passport.

[28] At the outset, it appears that Mr. Berry took some initiative in New Brunswick that was rejected which caused him to launch these proceedings in Ontario. But the jurisdiction of the court in Ontario is narrow and can be found only in s. 18 and s. 19. On the record before me, he has not established the jurisdiction to make any order he seeks.

[29] Mr. Berry knows he has a legal obligation to pay child support to Ms. Bernard. On the basis of the evidence, he has relied on the order of Czutrin J. even though he was not entitled to do so until it was confirmed, and that did not occur. He quarrels with the amount of his income and asks for an “undue hardship” consideration but he has demonstrated a willingness to comply.

[30] I encourage Mr. Berry to seek legal advice in New Brunswick. Perhaps after so many years, Ms. Bernard is as unhappy by the court processes as he is and, if both parties are represented by lawyers the parties may yet achieve a settlement that would resolve the outstanding issues and establish an order for child support that will not be the subject of motions and applications in two provinces. It may well resolve the outstanding access issues that Mr. Berry has regularly raised in his affidavits.

[31] I will direct the court staff to forward a copy of this endorsement to Mr. Berry, to the lawyer who acted for Ms. Bernard in 2015 and to the ISO unit in Ontario to be forwarded to the Court of Queen’s Bench Family Division, in Bathurst New Brunswick.

[32] This is another case that demonstrates the challenges that arise in a court in one jurisdiction dealing with a variation application of an order in a different jurisdiction. Mr. Berry’s application was issued in Toronto on June 6, 2013 and was decided on a provisional basis on August 13, 2013. That was a reasonable time frame. There was a delay between August 13, 2013 and the order made by Mesbur J. dated June 5, 2014 and the transmittal letter dated June 6, 2014. That delay of approximately 9 months was caused by the failure to produce a transcript and that delay was unreasonable. The first appearance in New Brunswick on November 17, 2014 was within 5 months of the transmittal letter to the ISO unit in Ontario. The order refusing to confirm is dated December 21, 2015 and constitutes a delay of 13 months which is not within a reasonable time frame. Mr. Berry was informed in early January, 2016 which is within a reasonable time frame. Courts and judges have encouraged increased use of video-conferencing between and among courts in various jurisdictions to accelerate the time it takes to process these applications. Delays such as were demonstrated here in both Ontario and New Brunswick do not serve the public.

ORDER TO GO AS FOLLOWS:

[33] The form 14B motion dated June 15, 2016 is dismissed.

Kiteley J.

Date: July 26, 2016