Court File and Parties
CITATION: Carter v Richer, 2016 ONSC 6668
COURT FILE NO.: FC-94-22099-1
DATE: 2016/10/26
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Tracey Wayne Carter, Applicant
AND
Patrice R. Richer, Respondent
BEFORE: Justice A. Doyle
COUNSEL: self – not appearing
John E. Summers, for the Respondent
HEARD: In writing
ENDORSEMENT
Overview
[1] This matter deals with an application under the Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13 (“ISOA”) where the Applicant is applying to rescind the arrears.
[2] The Applicant owes approximately $83,000 in support arrears dating back to 1996. The Nova Scotia court refused to rescind the arrears and ordered him to produce his tax returns.
[3] On October 11, 2016, this Court remitted this matter back to the designating authority requesting further evidence from the Applicant, including financial information, medical evidence regarding medical issues and disability and details of his inheritance.
[4] The Respondent's counsel requested an order permitting him to cross-examine the Applicant regarding his financial situation. He submits that the Applicant did not make one voluntary payment, refused to provide financial assistance, was in breach of support orders and hence should be required to attend in Ottawa for cross-examination on his affidavit.
[5] The Court invited counsel to provide written submissions with jurisprudence to support his request.
Legal Principles
[6] Section 51 of the ISOA states:
This Act does not impair any other remedy available to a person, the Province of Ontario, a province or territory of Canada, a jurisdiction outside Canada or a political subdivision or official agency of the Province of Ontario, of a province or territory of Canada or a jurisdiction outside Canada.
[7] Family Law Rules, O. Reg. 114/99 (“FLR”) 1(2)(a)(viii) states that the FLR applies to proceedings under the ISOA:
These rules apply to all family law cases in the Family Court of the Superior Court of Justice, in the Superior Court of Justice and in the Ontario Court of Justice,
(a) under,
(i) the Change of Name Act, R.S.O. 1990, c. C.7;
(ii) Parts III, VI and VII of the Child and Family Services Act, R.S.O. 1990, c. C. 11, as amended;
(iii) the Children’s Law Reform Act, R.S.O. 1990, c. C.12, except sections 59 and 60;
(iv) the Divorce Act, 1985, c. 3 (2nd Supp.), (Canada);
(v) the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”), except Part V;
(vi) the Family Responsibility and Support Arrears Enforcement Act, 1996. S.O. 1996, CHAPTER 31;
(vii) sections 6 and 9 of the Marriage Act. R.S.O. 1990, CHAPTER M.3; and
(viii) the Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13.
[8] Sub-rules 8 and 9 to s. 37 of the FLRs permit judges acting pursuant to an ISOA to order an oral hearing on the Respondent’s motion or on its own initiative if necessary to deal with a case justly.
(8) The Respondent may request an oral hearing by filing a motion form (Form 14B) within 30 days after being served with the notice of hearing. O. Reg. 56/03, s. 6; O. Reg. 69/15, s. 12.
(9) The court may order an oral hearing, on the Respondent’s motion or on its own initiative, if it is satisfied that an oral hearing is necessary to deal with the case justly. O. Reg. 56/03, s. 6.
[9] FLR 37 is meant to fill in the procedural details of the ISOA legislation.
[10] In Jasen v. Karassik (2009) 2009 ONCA 245, 95 O.R. (3d) 430, the Ontario Court of Appeal stated that the ISOA was not a "complete code". The court found that an Ontario resident is not required to bring an application for support or variation of a support agreement under ISOA if the other party is a non-resident. They have a choice to bring the application under ISOA or the Family Law Act (FLA). If brought under the FLA, then they are required to effect service ex juris and show that Ontario has a real and substantial connection to the subject matter of the application.
[11] Justice O'Connor concluded that ISOA was not a "complete code" as i) there was nothing in the ISOA to suggest that it was intended to remove the right of Applicants to proceed under the FLA (para. 57); ii) ISOA s.51 expressly preserves the continued availability of remedies; and (iii) the broader jurisdictional support regime contemplates that Applicant will not be precluded from seeking remedies in their own domestic courts.
[12] The above case is not helpful in the case at bar. The court determined that a litigant was required to resort to ISOA if the litigant is seeking a support order from an out of province litigant.
[13] Justice Mackinnon considered this issue in Whelan v. O’Connor [2005] O.J. No. 5659 where the Respondent submitted that since the Applicant applied under ISOA, he was restricted by the legislation, that ISOA was intended to provide a summary procedure and that the Applicant was restricted to filing his original application and to providing any additional information requested of him pursuant to rule 37 of the FLR and ISOA s. 11(2) and if the Applicant has standing in the Ontario hearing, then he would have more procedural rights than the Respondent e.g. cross examination. The court did not agree with these submissions.
[14] At para. 12, Justice Mackinnon stated:
I find that the Respondent does have the ability to seek information from the Applicant, subject to obtaining the court’s direction, as provided for in ISO s. 11(2) and r. 37(10)-(13) of the FLR. The Respondent may also seek an order under r. 20(5) and (14) of the FLR to permit her to question the Applicant out of court. If thought to be necessary, the Respondent could also summons the Applicant pursuant to r. 23(11) and (11.1) of the FLR. In this way, the FLR provide the Respondent with procedural fairness.
[15] Rule 20 reads: The court may, on motion, order that a person (whether a party or not) be questioned by a party or disclose information by affidavit or by another method about any issue in the case, if the following conditions are met:
it would be unfair to the party who wants the questioning or disclosure to carry on with the case without it;
the information is not easily available by any other method;
the questioning or disclosure will not cause unacceptable delay or undue expense.
[16] FLR 20 (14) reads:
If a person to be questioned lives outside Ontario and will not come to Ontario for questioning, the court may decide:
(a) the date, time and place for the questioning;
(b) how much notice the person should be given;
(c) the person before whom the questioning will be held;
(d) the amount of the witness fee to be paid to the person to be questioned;
(e) the method for recording the questioning;
(f) where necessary, that the clerk shall issue,
(i) an authorization to a commissioner (Form 20A) who is to supervise the questioning outside Ontario, and
(ii) a letter of request (Form 20B) to the appropriate court or authorities outside Ontario, asking for their assistance in getting the person to be questioned to come before the commissioner; and
(g) any other related matter.
Analysis
[17] It is apparent from a review of the above legislative provisions and case law, that the Court has the power to order questioning of the Applicant. The FLR’s are available to a Judge sitting on a matter pursuant to ISOA to deal with practice and procedure. See FLR 2 and Whelan v. O’Connor.
[18] The Court finds that the requirements set out in 20(5) have been met. The Respondent is entitled to question the Applicant on his affidavit and his attached tax returns. She will not be able to obtain this information any other way. The Court has made an order remitting the matter back requesting further information. Nevertheless, the Respondent has the right to ask questions regarding his ability to pay to arrears owing.
[19] The Respondent should not have to incur the expense of questioning the Applicant in his home province, especially in light of his chronic non-payment of support.
[20] Therefore, the Court is prepared to order questioning in Ontario upon the Respondent providing me details of the requirements set out in r. 20(14) in the form of a draft Order.
Madam Justice A. Doyle
Date: October 26, 2016
CITATION: Carter v Richer, 2016 ONSC 6668
COURT FILE NO.: FC-94-22099-1
DATE: 2016/10/26
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Tracey Wayne Carter, Applicant
AND
Patrice R. Richer, Respondent
BEFORE: Justice A. Doyle
COUNSEL: self – not appearing
John E. Summers, for the Respondent
HEARD: In writing
ENDORSEMENT
Madam Justice A. Doyle
Released: October 26, 2016