Court File and Parties
COURT FILE NO.: FS-16-280-00 DATE: 20170327
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: PATRICIA SHANNE ROBERTS KERNSTEAD, Applicant WAYNE JOHN LARRY YOUNG, Respondent
BEFORE: EMERY J.
COUNSEL: Patricia Kernstead in Person Wayne Young, in Person
HEARD: In writing
ENDORSEMENT
[1] The application of Patricia Kernstead to vary the final order dated April 13, 2012 made by Justice R. B. Doyle of the Manitoba Court of Queen’s Bench came before me under a Notice of Hearing in chambers on March 20, 2017. The application is brought under the Inter-Jurisdictional Support Orders Act, 2002 (“ISOA”).
[2] I take it that the final order Ms. Kernstead seeks to vary was not made under the Divorce Act, as the ISOA does not apply to vary support orders made under the Divorce Act. The ISOA applies only where a support order has been made pursuant to provincial statutes: Chree v. Chree, 2014 ONSC 6480 and Durso v. Mascherin, 2013 ONSC 6522.
[3] Mr. Kernstead resides in Winnipeg Manitoba. She is therefore an applicant outside Ontario. The application has been made in Manitoba but sent to Ontario under section 31 of the ISOA because Mr. Young resides in Brampton, Ontario.
[4] Ms. Kernstead seeks to vary the order made by Justice Doyle on April 13, 2012, which dismissed her application to vary the order made by Justice Nelson of this court on October 28, 2004, yet the court set certain child support amounts for Mr. Young to pay. In support of her application, Ms. Kernstead has filed various court orders made in Manitoba and in Ontario, the reasons given for making those orders, and various other materials required under the ISOA.
[5] It does not appear that the Manitoba Court of Queen’s Bench has made a provisional order for this court to confirm. No such order has been included in the materials. It would further appear that very little in the way of actual evidence has been filed by Ms. Kernstead as the applicant in support of the application to vary.
[6] Mr. Young has filed an answer in response to Mr. Kernstead’s application. He has also filed a financial statement (support claims) sworn on February 23, 2017 with attachments, and an affidavit sworn on February 24, 2017 setting out his position on the variation claim.
[7] Ms. Kernstead seeks to vary the 2012 order directly under section 32 instead of obtaining a provisional order first. I have therefore approached this application to vary as a matter of first instance.
[8] Under section 36 of ISOA, the court in Ontario may make any of the following orders at the conclusion of a confirmation hearing:
- (1) On the conclusion of a hearing, the Ontario court may, in respect of the applicant, a child or both, (a) make a support variation order; (b) make a temporary support variation order and adjourn the hearing to a specified date; (c) adjourn the hearing to a specified date without making a temporary support variation order; or (d) refuse to make a support variation order. 2002, c. 13, s. 36 (1).
[9] In view of the state of the record and lack of evidence, I am in the position where I can only make consent orders. In so far as any remaining issue of a contested nature is concerned, I will require a hearing to make a final determination. Those contested issues may include, but are not limited to whether Mr. Young owes any arrears of support under previous orders, his actual or imputed annual income, and what expenses for Emily are properly characterized as reasonable special and extraordinary for the parties to contribute towards on a basis proportionate to their incomes.
[10] Therefore, orders shall go as follows:
- A final order terminating Mr. Young’s obligation to pay child support for Julia Roberts Young as of February 1, 2015.
- A temporary order that the order made by Justice Doyle on April 13, 2012 be varied for Mr. Young to pay child support for Emily Rose Roberts Young born on October 13, 2000 at the table rate of $1,084.00 a month based on his declared annual income of $126,250.00 a year.
- A temporary order that Mr. Young pay 70% of all reasonable special and extraordinary expenses under section 7 of the Ontario Child Support Guidelines for Emily Roberts Young based on his annual income of $126,250 and that Ms. Kernstead pays 30% of all reasonable special and extraordinary expenses under section 7 for Emily Roberts Young based on her annual income of $53,622.
[11] I am adjourning the balance of the application under (Ontario) Family Law Rule 37(9) to a hearing date before me to be fixed by the trial coordinator at Brampton on a date mutually convenient to the parties and this court. The parties should be prepared at that hearing to present the evidence necessary for this court to deal with the case justly.
[12] Costs of this application to vary are reserved to the justice who makes the final determination in this proceeding.
Emery J