Court File and Parties
Court File No.: D-20707-14 Date: 20180919 Superior Court of Justice - Ontario
Re: Heather Leanne McKee (Wickie), Applicant And: John David Wickie, Respondent
Before: The Honourable Madam Justice Louise L. Gauthier
Counsel: Heather Leanne McKee (Wickie), Applicant, not appearing Dale Brawn, for the Respondent, John David Wickie Trevor Kestle, for F.R.O.
Heard: September 19, 2018
Endorsement
[1] Today I heard Mr. Wickie’s Motion for an Order refraining the Family Responsibility Office (“F.R.O.”) from suspending his driver’s license. The arrears of support owed by Mr. Wickie total $94,801 according to the First Notice to Suspend Driver’s License from the F.R.O., which warns of the suspension effective September 24, 2018.
[2] I am dismissing Mr. Wickie’s Motion for the following reasons.
[3] Firstly, the Motion is not properly before the Court. The Family Law Rules (“Rules”) and the statute, the Family Responsibility and Support Arrears Enforcement Act (“F.R.A.S.A.E.A.”), set out strict requirements regarding the documents to be served and filed in such motions.
[4] Section 35(7) of the F.R.A.S.A.E.A. provides that a payor making a motion for an order to refrain SHALL (my emphasis) serve and file a Financial Statement (and attachments), and proof of income, together with the Notice of Motion for a Refraining Order.
[5] Mr. Wickie did not serve a Financial Statement on the F.R.O., nor did he file one with his motion. In fairness, he did file a Financial Statement with his Motion to Change a Final Order, but that is not compliance with the requirement.
[6] Rule 13(5.1) of the Rules mirrors the provisions of s. 35(7) of the statute referred to above. Additionally, Rule 13(10) provides that the “clerk shall not accept a document for filing without a financial statement if these rules require the document to be filed with a financial statement.”
[7] Therefore the Motion for a Refraining Order should not have been accepted by the clerk, placed on any hearing list, or brought to a Judge.
[8] Secondly, and although I am mindful of and have considered the provisions of Rule 2 of the Rules regarding the primary objective of dealing with cases justly and the inherent power of the court to proceed notwithstanding a failure to comply with technical or documentary requirements, I am not prepared, on the facts of this case, to overlook the shortcomings in the filings. There is no compelling evidence that it would be inequitable to proceed in accordance with the requirements of both the statute and the Rules.
[9] Additionally, I accept the suggestion put forward by the F.R.O. that Mr. Wickie has not established that he can make a prima facie case for the granting of his Motion to Change the Final Order of Kurke J. made on December 8, 2017.
[10] While Mr. Wickie’s material indicates that the Order in question was made in his absence, he fails to mention that the matter proceeded as an uncontested trial before the court on that date, as Mr. Wickie had not filed ANY responding material in the proceeding which had been instituted by way of Application on March 19, 2014, despite having been personally served with the originating materials on March 31, 2014. The Applicant was forced to attempt to obtain evidence of the Respondent’s income from non-parties, i.e. the Canada Revenue Agency, etc.).
[11] As well, although Mr. Wickie’s material indicates that he is no longer employed as of May 2018, it does not disclose the fact that Mr. Wickie voluntarily left his employment, nor his reason(s) for doing so.
[12] And finally, no evidence was provided regarding Mr. Wickie’s attempts to secure new employment since May 2018.
[13] For all of these reasons, the Motion for a Refraining Order is dismissed with costs payable at $250, by the moving party.