Court File and Parties
COURT FILE NO.: F223/05-2 DATE: March 14, 2017 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT
RE: Evelyn Erica Van Beest, applicant AND: David Hugh Rock, respondent
BEFORE: MITROW J.
HEARD: Interjurisdictional Support Orders Act, 2002 written hearing pursuant to r. 37(7) of the Family Law Rules
Endorsement
[1] A provisional variation order made in the Court of Queen’s Bench of Alberta (at Red Deer) on October 21, 2015 by Bast J. (“the provisional order”) has been forwarded to this court for confirmation.
[2] This matter proceeds in this court pursuant to the Interjurisdictional Support Orders Act, 2002, S.O. 2002, c.13 (“ISO”). Sections 32 to 38 apply to provisional variation orders where the applicant resides outside Ontario: s. 31(1)(a), ISO.
[3] This case involves child support. The parties were never married to each other. They have one child, born December 17, 1998, who resides in Alberta along with the applicant. The child is now 18 years of age.
[4] Some of the litigation background indicates that Korpan J., of this court, made a provisional variation order on July 9, 2013 that varied a final order dated June 28, 2010, also made in this court. The order of Korpan J. provided for a schedule of child support for the years 2010 and 2011, and effective January 1, 2012, the order provided for child support to be paid by the respondent in the amount of $179 per month based on an imputed income of $22,395.
[5] This provisional order of Korpan J. was confirmed pursuant to the order of Michalyshyn J. dated February 18, 2015 made in the Court of Queen’s Bench of Alberta.
[6] The basis of the applicant’s current variation proceeding is to increase child support based on an allegation that the respondent’s income has increased.
[7] The hearing before Bast J. proceeded on the basis of the applicant’s affidavit material filed. The applicant was in attendance.
[8] Accordingly, this variation application proceeds, in effect, as a variation of the final order of Michalyshyn J.
[9] In her provisional order, Bast J. found the respondent to have an income of $40,000 and the respondent was ordered to pay $360 per month table amount of child support. There was also an order requiring the respondent to contribute to a s. 7 expense for the year 2015.
[10] When the requisite material was received from Alberta, it was served on the respondent; the notice of hearing stated that a written hearing would be held on August 26, 2016. It is not clear whether this notice of hearing was served on the respondent because it is not referred to in the affidavit of service.
[11] Rule 37 of the Family Law Rules, O. Reg. 114/99 deals with proceedings pursuant to ISO. Rule 37(7) requires an application pursuant to ISO to be dealt with on the basis of written material without the need of the parties or their lawyers having to appear. However, a responding party may request an oral hearing by filing a form 14B motion within 30 days of being served with the notice of hearing (r. 37(8)), or the court may order an oral hearing (r. 37(9)). The respondent did not request an oral hearing.
[12] The respondent did file a financial statement sworn August 15, 2016 along with an answer. However, in filing his answer, the respondent used the form 10 answer, which is the standard form to respond to an application (rather than using the “form N” answer, which is required by r. 37(4)(a) for ISO proceedings). That particular document is an affidavit and constitutes the evidence of a person who files an answer in response to an ISO application. Although the respondent’s sworn financial statement constitutes evidence as to his income, there is no other admissible evidence filed by the respondent. Also, no form 14A affidavit was filed by the respondent as required by r. 37(4)(b).
[13] In order to move this matter along, the order below sets a hearing date before me to proceed orally, and to be supplemented by affidavit material.
[14] In his answer, which is not evidence, the respondent denies earning income attributed to him, he alleges that he was in jail for six months during 2015, and states that the child quit school at age 16 and became employed; that the child attended for two months per year at a trade school, including a welding course. The respondent requests proof regarding the child’s education and employment.
[15] Apart from the respondent’s allegations as to whether the child remains a dependant, it is necessary to determine whether the child is still in school as he has attained age 18 (see definition of child in s. 46(a), Family Law Act, Statues of Alberta, 2003, c. F-4.5).
[16] In confirming the provisional order, ISO requires this court to apply first the law of Alberta as to the child’s entitlement to child support and, if the child is not entitled to child support according to Alberta law, then this court is required to apply Ontario law as to entitlement: s. 35, paragraph 1 ISO.
[17] Accordingly, the order below provides all necessary directions in relation to the oral hearing.
[18] It is noted that the respondent’s financial statement shows net rental income of $14,584. The respondent’s only other disclosed income source is $10,000 annually from RRSP withdrawals. The respondent also claims to be supporting his girlfriend, who has no income. However, the respondent shows total assets slightly exceeding $827,000 with no debt. The respondent is put on notice that his reported modest income, compared to his substantial assets, requires some explaining.
[19] I make the following order:
The hearing to confirm the provisional order of Bast J. dated October 21, 2015 made in the Court of Queen’s Bench of Alberta shall proceed before me at 10:00 a.m. on Friday, May 26, 2017.
At least 21 days before the hearing date, the respondent shall file the following: (a) an updated sworn financial statement in form 13; (b) subject to subparagraph (c), the respondent shall append to his financial statement the following: (i) his 2013 to 2016 inclusive T1 general income tax returns, together with all slips and schedules, including schedules for any rental income and business income; (ii) complete copies of his notices of assessment and reassessment, if any, for the years 2013 to 2016 inclusive; and (iii) a form 14A affidavit explaining his position on the variation application, including why he went to jail; (c) to the extent that the respondent already has filed the tax returns and notices of assessment referred to in subparagraphs 2(b)(i) and (ii), the respondent need not file those documents again.
The applicant, at least 21 days prior to the hearing date, shall provide an affidavit that contains the following: (a) a summary of when and where the child attended school for each year starting 2015 to the present; (b) whether the child still attends school and, if not, when the child ceased to attend school; (c) all school enrollment shall be verified by documents, or a letter, from the educational institution to be appended as an exhibit to the applicant’s affidavit; (d) a summary of when and where the child has worked since 2015 and his income earned, and proof of income earned shall be appended as an exhibit to the applicant’s affidavit; (e) since 2015, explaining when the child resided with the applicant, and when the child resided on his own (if at all); and (f) any other evidence as to whether the child is a dependant entitled to receive child support and, if not, the date on when the child ceased to be a dependant.
The clerk shall do the following: (a) prepare a request for further information in form 37B directed to both the applicant and to the Ontario Interjurisdictional Support Orders Unit requiring the applicant to provide the information set out in this order; (b) send a copy of these reasons, the signed and issued order and the form 37B request to the applicant and to the Ontario Interjurisdictional Support Orders Unit and shall file proof of service; and (c) the clerk shall ensure that the respondent is served by regular mail, and shall ensure also that the respondent is served personally by the sheriff or other person, with the documents listed in subparagraph (b), together with a notice of hearing, and shall file proof of service.
“Justice Victor Mitrow” Justice Victor Mitrow Date: March 14, 2017