CITATION: A. Beckett vs. P. Gerlitz/Simmons, 2016 ONSC 827
COURT FILE NO.: FS-15/42
DATE: 2016-02-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Aaron Taygan Zachariah Beckett
Applicant
- and -
Paula Christine Gerlitz/Simmons
Respondent
APPLICATION IN WRITING: December 15, 2015, at Fort Frances, Ontario
Regional Senior Justice D. C. Shaw
Endorsement
[1] Aaron Beckett, who resides in Fort Frances, Ontario, has filed with the Superior Court of Justice in Fort Frances an application made pursuant to the Alberta Interjurisdictional Support Orders Act for variation of a child support order made in a divorce judgment granted by the Alberta Court of Queen’s Bench in Calgary in 2010. The respondent in the application, Mr. Beckett’s former wife, Paula Simmons, resides with the children in Calgary.
[2] The application was served on the Ontario Family Responsibility Office and on Ms. Simmons, together with a Notice of Hearing issued out of the Superior Court of Justice, setting December 15, 2015 in Fort Frances as the date for a written hearing.
[3] Ms. Simmons, through counsel, delivered an Answer in which she disputed this court’s jurisdiction to make a variation of the Alberta divorce judgment under the Interjurisdictional Support Orders Act. She acknowledged that this court has jurisdiction under the Divorce Act to make a provisional order varying the support order under the Alberta divorce judgment.
Decision
[4] Mr. Beckett’s application must be dismissed for two reasons.
[5] First, Ms. Simmon’s objection to jurisdiction is correct.
[6] Section s. 26 of the Ontario Interjurisdictional Support Orders Act states that nothing in the provisions of the Act relating to variation of support orders allows variation of a support order made under the Divorce Act, except as authorized by federal enactment. There is no relevant federal enactment. Section 23(b) of the Alberta Interjurisdictional Support Act is identical.
[7] Section 18 of the Divorce Act provides for an application to be made for variation of a support order where the applicant and respondent reside in different provinces. A provisional order may be granted in the province where the application is brought. The provisional order is then transmitted to the province where the respondent ordinarily resides and the court of that province, in the absence of the applicant, either confirms the provisional order with or without variation, or refuses confirmation of the provisional order.
[8] Second, an Ontario resident seeking to vary a support order made in Alberta, other than a support order made under the Divorce Act, should make an application under the Ontario Interjurisdictional Support Orders Act, not under the Alberta Act. The application and supporting documents are filed with the designated authority under the Ontario Act. That designated authority would send the documents to the designated authority under the Alberta Act. The Alberta designed authority would send the documents to the court where the respondent ordinarily resided. The court would serve the respondent with a copy of the support variation application and a notice of a hearing.
[9] Mr. Beckett’s application before this court is therefore dismissed, without prejudice to his right to proceed with an application for a variation order under the Divorce Act.
[10] Although Ms. Simmons agrees that this court has jurisdiction to make a provisional order under the Divorce Act, it would not be appropriate to treat an application made under the Alberta Interjurisdictional Support Orders Act as an application under s. 18 of the Divorce Act for a provisional order, which would then be transmitted to Alberta for a confirmation hearing. If Mr. Beckett wishes to proceed with an application for a provisional order under the Divorce Act, the proper procedure under the Divorce Act and the Family Law Rules will have to be followed.
[11] In the circumstances, because there was confusion caused by the local registrar accepting the Alberta documents for filing and setting a hearing date, when there was no legislative basis to do so, this is not a case for costs. There will be no order as to costs.
”original signed by RSJ Shaw”
The Hon. Mr. Justice D. C. Saw
Released: February 01, 2016
CITATION: A. Beckett vs. P. Gerlitz/Simmons, 2016 ONSC 827
COURT FILE NO.: FS-15/42
DATE: 2016-02-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Aaron Taygan Zachariah Beckett,
Applicant
- and -
Paula Christine Gerlitz/Simmons,
Respondent
ENDORSEMENT ON WRITTEN APPLICATION
Shaw R.S.J.
Released: February 01, 2016
/ket