Court File and Parties

BARRIE COURT FILE NO.: FC-18-157-00 DATE: 20181029 SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Carlos Brito, Applicant -and- Maria Brito, Respondent

BEFORE: The Honourable Mr. Justice J.P.L. McDermot

COUNSEL: Ashley Taunton, for the Applicant Roxanne Shank, for the Respondent

HEARD: October 2, 2018

Endorsement

[1] In 2017, the Applicant, who resides in Edmonton, Alberta, brought support variation proceedings before the Alberta Court of Queen’s Bench. The Respondent is the Applicant’s former wife, and is owed arrears of child and spousal support. A provisional order was subsequently made by Inglis J. varying support and rescinding most of the arrears. The matter is now before this court for confirmation of that order.

[2] On October 2, 2018, I conducted a conference in this matter. I had scheduled the conference in order to canvass with the parties their positions as to the next steps in this matter. I was concerned as to whether to remit this matter back to the Alberta courts regarding the retroactivity of the rescission of arrears by the Alberta court.

[3] In 2008, the Respondent brought divorce proceedings in Brampton, Ontario, pursuant to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). The Applicant says that he was then working in British Columbia and does not recall having been served with the Divorce Application. In any event, he did not file an Answer; he was noted in default by order of Lemon J. on July 9, 2009, and on August 20, 2009, Bielby J. made the final order which is in issue in this proceeding. That order imputed income to the Applicant in the amount of $72,800 per year. It also provided that Mr. Brito pay $1,073 per month in child support and $800 per month in spousal support.

[4] Mr. Brito has, according to his Notices of Assessment, made nothing like that since 2008. His income, and the support payable, is set out in the chart below, which is taken from the Applicant’s affidavit:

Year	Income	Living in Province	Monthly Child Support	Number of Children	Months	Annual Child Support
2008	$33,673	BC	$524	2	2	$1,048
2009	$21,111	BC	$332	2	12	$3,984
2010	$11,323	AB	$118	2	12	$1,416
2011	$0	AB	$0	2	12	$0
2012	$0	AB	$0	2	12	$0
2013	$11,627	AB	$78	2	12	$936
2014	$18,601	AB	$304	2	6	$1,824
2014	$18,601	AB	$166	1	6	$996
2015	$16,724	AB	$155	1	12	$1,860
2016	$17,919	AB	$162	1	12	$1,944

Total: $14,008

[5] Mr. Brito says that the maximum that he should have paid for child support over the years is $14,008 over the years since the final order. He says that he has actually paid $32,207.06, an overpayment of about $18,000. This does not take into account the spousal support that was payable at $800 per month; in any event, Mr. Brito acknowledges that he owed, as of June 16, 2017, $145,595.52 to Alberta maintenance authorities. He seeks to rescind this amount and in fact, appears to claim an overpayment.

[6] In June of 2017, the Applicant brought variation proceedings in Edmonton, Alberta, where he now resides. On August 24, 2017, the parties appeared before Inglis J. of the Alberta Court of Queen’s Bench for a variation hearing under s. 17 of the Divorce Act. The Respondent’s counsel appeared solely to object to jurisdiction but had no objection to the matter proceeding on a provisional basis. Inglis J. determined that this matter was to proceed provisionally under ss. 18 and 19 of the Divorce Act. He found that child support was payable according to the chart set out above, and that any overpayment of child support ($18,000) would be applied to spousal support arrears. He stayed the enforcement of spousal support and reduced child support to $182 per month. The order was provisional only, other than the stay of spousal support which had, as I understand from the transcript of the hearing, immediate effect.

[7] This began as a motion to vary child and spousal support and the court’s jurisdiction lies under s. 17 of the Divorce Act, which allows a court to “make an order varying, rescinding or suspending, prospectively or retroactively” a “support order” in the event of a “change in circumstances as provided for in the applicable guidelines …since the making of [either the child support or spousal support order]” [s. 17(1), (4) and (4.1)].

[8] Because the support recipient resides in Ontario, the Alberta court determined that its order would be provisional only under s. 18 of the Divorce Act. Section 19 of the Divorce Act allows me to confirm the provisional order with or without variation, or alternatively, to refuse to confirm the order. The section also permits me, where I am satisfied by the Respondent that it is necessary to obtain further evidence, “to remit the matter back to the court that made the original order.”

[9] I had originally expressed a concern at the conference that the Respondent had to satisfy the criteria for retroactivity under S. (D.B.) v. G. (S.R.), 2006 SCC 37, [2006] 2 S.C.R. 231, which, in the absence of blameworthy conduct, only permits a court to vary child support three years back or to when the subject of variation was first broached, whichever came last. I had scheduled the conference partly because I needed to determine whether the Alberta courts should have applied the S.(D.B.) criteria regarding retroactivity in considering the Applicant’s motion to change and whether the matter should have been remitted back to the Alberta courts to address those issues under s. 19(8) of the Divorce Act. However, Ms. Taunton made submissions during the conference that, in Alberta, S.(D.B.) does not apply to issues of rescission of arrears; that appears to be the case in Ontario as well: see Trembley v. Daley, 2012 ONCA 780 at para. 15 and Corcios v. Burgos, 2011 ONSC 3326.

[10] The order in this matter that the Applicant seeks to vary was made in default of appearance on August 20, 2009, and provided for child and spousal support retroactive to November 13, 2008. For there to be a variation of that order under s. 17 of the Divorce Act, the court must find there to be a change in circumstances “since the making of the order” in question. I cannot go behind the order or examine circumstances which arose prior to the making of the order: see Gray v. Rizzi, 2016 ONCA 152. I do not know the basis upon which Bielby J. made his order, or, for that matter, what facts he relied upon in doing that, which is necessary before I can establish whether a material change has taken place since his August 20, 2009 order. To that end, I have requested the original divorce file from Brampton, where the Bielby J. order was made. This will allow me to review both the original basis upon which that order was made as well as to examine the issue of whether the Applicant received notice of the divorce proceedings.

[11] The issue of service may be of limited utility, however, as my mandate is only to determine whether to confirm the provisional order, and I have no authority to go behind the original order, as dictated in Gray v. Rizzi, or to determine whether that order was valid or not. I could only do the latter if there was an application to change or set aside the order under Rule 25(19) of the Family Law Rules, O. Reg. 114/99, under the Courts of Justice Act, R.S.O. 1990, c. C.43, and that is not before the court in these confirmation proceedings.

[12] However, considering that I am not mandated to set aside Bielby J.’s order, I must eventually address the conflict between the finding in that order as to imputation of income to the Applicant at $72,800 per year, and the actual income that the Applicant says that he made in 2008 and 2009 which is significantly lower. Review of the original file is necessary for that purpose.

[13] I am also directing that, once the file is received from Brampton, that this matter be set down for a confirmation hearing based upon affidavit evidence filed by the Respondent and any oral testimony that Respondent’s counsel may choose to lead.

[14] I also find that there is no need to remit this order back to the Alberta courts for further evidence for the reasons set out above.

McDERMOT, J. Released: October 29, 2018