Court File and Parties

COURT FILE NO.: FS-18-208 DATE: 2019/04/24

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Melissa Anne Victor Applicant

• and -

Maxime Matthieu Boulanger Respondent

HEARD: In Chambers ellies j.

REASONS FOR DECISION

OVERVIEW

[1] This is a case in which I find myself deciding an appeal, in a manner of speaking, from my own decision.

[2] The issue is whether a provincially appointed judge of the Ontario Court of Justice (the “OCJ”) is empowered to vary a support order made by a federally appointed judge under the Interjurisdictional Support Orders Act, 2002, S.O. 2002 c. 13 (the “ISOA”) when the applicant resides outside of Ontario. In an earlier endorsement, I expressed the view that a judge of the OCJ had such authority. I have since concluded that I was incorrect. These reasons explain why.

BACKGROUND

[3] Melissa Anne Victor applied under the ISOA to vary an order for child support made by a federally appointed judge of the Alberta Court of Queen’s Bench on April 9, 2015 (the “original order”). The child resides with the mother in Alberta. In the original order, the court ordered that the respondent father pay ongoing monthly support for the child in the amount of $547 per month. The court also ordered that the father pay extraordinary expenses for the child, who is a special needs child, and that he pay arrears with respect to both ongoing and extraordinary child support payments.

[4] The original order was registered in the Ontario Court of Justice (the "OCJ") in North Bay on November 3, 2016. It does not appear to have been made under the Divorce Act, R.S.C. 1985, c. 3.

[5] The applicant filed her support variation application in Alberta and that application was sent to the Interjurisdictional Support Orders Unit of the Family Responsibility Office (the “ISO Unit”) in Ontario, the “designated authority” under s. 41(1) of the ISOA.

[6] The ISO Unit sent the variation application to the Superior Court of Justice (the "SCJ") in North Bay for consideration under the ISOA. However, the matter was placed by court staff before a judge of the OCJ, instead, on the basis that the order had been registered with that court. As required by s. 33(1)(b) of the ISOA, the OCJ sent the respondent a notice that a hearing would be held. The respondent failed to attend on the date first scheduled for the hearing, and on several later dates to which the hearing was adjourned, despite the fact that he had been provided with further notice.

[7] Before the application was decided, however, a judge of the OCJ directed that the matter should be before a judge of the SCJ on the basis that the original order was made by a federally appointed judge. The matter was then brought to my attention by court staff. I took the position that the matter had been properly placed before the OCJ in the first instance and remitted the matter back to that court. On December 13, 2018 a judge of that court made a provisional order varying the original order.

[8] Subsequently, I was again asked to review this matter by court staff, who were advised by staff at the ISO Unit that the matter should be before this court on the same basis that it was transferred to this court by the OCJ previously, namely that the original order was made by a federally appointed judge.

[9] On February 25, 2019 I made an endorsement in which I set out my belief that s. 26(2) of the ISOA provided the OCJ with authority to vary the original order, notwithstanding the fact that the order had been made by a federally appointed judge. Section 26 of the ISOA reads as follows:

26 (1) Nothing in this part, (a) authorizes a judge of the Ontario Court of Justice to vary a support order made in Canada by a federally appointed judge; or (b) allows a support order originally made under the Divorce Act (Canada) to be varied except as authorized by federal enactment. (2) Despite subsection (1), a judge of the Ontario Court of Justice may make a provisional order to vary a support order made in Canada under a provincial enactment by a federally appointed judge.

[10] Because neither the ISO Unit nor the applicant had been given an opportunity to make submissions on the issue of the OCJ judge's jurisdiction, I ordered that a copy of my endorsement be provided to those parties and that they be given 30 days within which to file written submissions, if they wished to do so. I have since received and reviewed the written submissions of counsel for the ISO Unit. Based, in part, on those submissions, I have concluded that my earlier position was wrong.

ANALYSIS

The Power of an OCJ Judge to Vary an Order Made by a Federally Appointed Judge under the ISOA

[11] In making my earlier endorsement, I relied on the decision in Rozzi v. Ontario (Director, Family Responsibility Office), [2003] O.J. No. 1723, 38 R.F.L. (5th) 181 (Ont. C.J.). In Rozzi, the applicant sought a refraining order under s. 35 of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 (the "Family Responsibility Act"). In Rizzo, the Family Responsibility Office (the "FRO") was enforcing an order under the Family Responsibility Act made by a judge of the Quebec Superior Court, pursuant to which arrears of support had accumulated. Counsel for the FRO argued that the OCJ judge could not issue a refraining order because s. 35 of the Family Responsibility Act requires that the applicant bring a motion to vary the order, or undertake to do so, before a refraining order can be issued. Counsel submitted that the applicant could not bring such an application before the OCJ because the OCJ had no power to vary an order made by a federally appointed judge under the ISOA, even where the order was not made under the Divorce Act. [1]

[12] The motion judge disagreed. Relying on s. 26(2) of the ISOA, he held (paras. 6 and 7):

In my view, the Ontario Court of Justice does have jurisdiction to vary any support order properly enforceable in Ontario made anywhere with the singular exception of an order for support made under the federal Divorce Act. See subsections 7(2) and 7(3) of the Reciprocal Enforcement of Support Orders Act, R.S.O. 1990, c. R-7; and section 26 of the Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13. With the respect to the latter type of order, only a court that had jurisdiction to make the divorce judgment would have jurisdiction to vary the support order granted as corollary relief thereunder -- either the Québec divorce court on direct application or the Ontario Superior Court of Justice on a provisional basis. See sections 17, 18 and 19 of the Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, as amended. This is the situation in Ontario at present in those geographical areas that have yet to benefit from the creation of the unified family court. One can readily understand how the uninitiated litigant could be confused by the intricacies of this jurisdictional situation.

Where the Ontario Court of Justice does vary an extra-jurisdictional order, it is of course, a provisional order that must be processed through the Reciprocal Enforcement of Support Orders Act or the recently proclaimed Interjurisdictional Support Orders Act, 2002. [Emphasis added.]

[13] As I interpret his reasons, the motion judge in Rozzi held that a provincially appointed OCJ judge can vary an order made by a federally appointed judge regardless of whether the application to vary originated in Ontario or in another reciprocating jurisdiction. At first glance, this conclusion seems reasonable. Section 26 is included with the sections in Part IV of the ISOA that apply both to applications to vary where the applicant resides in Ontario and to applications to vary where the applicant resides outside of Ontario. Further, the power to provisionally vary an order made by a federally appointed judge under s. 26(2) is not expressly restricted in any way.

[14] Nonetheless, with respect, I have concluded that if that is what the motion judge meant to say in Rozzi, then such a statement is too broad. In my view, a provincially appointed OCJ judge only has jurisdiction to make a provisional order varying a support order made by a federally appointed judge (under provincial legislation) when the applicant resides in Ontario and the respondent resides outside of Ontario, as happened to be the case in Rozzi.

[15] Under Part IV of the ISOA, (and in parallel legislation in reciprocating jurisdictions), a similar process is engaged when dealing with variations, regardless of where the applicant resides and the variation application originates. The application is filed in the originating jurisdiction and sent from that jurisdiction to the designated authority in the reciprocating jurisdiction. Once the designated authority confirms that the respondent resides in the reciprocating jurisdiction, the matter is submitted to the court in the reciprocating jurisdiction and the respondent is provided with notice of a hearing. In most reciprocating jurisdictions, the court with authority to vary the order then considers the matter afresh, based on the application, the supporting materials and the reply, if any, filed by the respondent. Any order made in the reciprocating jurisdiction is then returned to the originating jurisdiction.

[16] However, certain reciprocating jurisdictions require that a provisional variation order be made by a court in the originating jurisdiction before the materials are sent to the reciprocating jurisdiction for confirmation by the court in that jurisdiction. These reciprocating jurisdictions include the United Kingdom, New Zealand, Germany, and Québec [2]. As the British Columbia Court of Appeal explained in Herriman v. Blais, 2012 BCCA 437, a case involving the Interjurisdictional Support Orders Act, S.B.C. 2002, c. 29 (the "BC ISOA"), provisional orders are intended to facilitate variation applications transferred to those reciprocating jurisdictions (paras. 11-12).

[17] In Ontario, s. 30(1) of the ISOA reads:

(1) If the applicant reasonably believes that the respondent is habitually resident in a reciprocating jurisdiction that requires a provisional variation order, the Ontario court may, on the applicant’s motion and without notice to the respondent, make a provisional variation order taking into account the legal authority on which the applicant’s application for variation is based.

[18] I believe that the power of a provincially appointed judge to vary an order made by a federally appointed judge under s. 26(2) is restricted to cases in which s. 30(1) applies.

[19] This conclusion is supported by a comparison of the ISOA with parallel legislation in other reciprocating jurisdictions. In the BC ISOA, for example, the companion section to s. 26(2) of Ontario's ISOA is found in the part of the BC ISOA dealing specifically with variation applications where the applicant resides in British Columbia, under the heading, "Preparing support variation application – provisional order required" (s. 27(8)).

[20] More importantly, my conclusion is supported by the fact that neither the ISOA nor any of the parallel legislation in reciprocating jurisdictions like British Columbia or Alberta contain any procedure for the confirmation of a provisional order made by a court in a reciprocating jurisdiction, as opposed to the confirmation by a court in the reciprocating jurisdiction of a provisional order made by a court in the originating jurisdiction. Simply put, there is no process for the confirmation by a court in Alberta of the OCJ judge's provisional order in this case.

[21] Thus, s. 26(2) is not a stand-alone section. It does not give a provincially appointed judge of the OCJ the power to vary provisionally every order made by a federally appointed judge. Pursuant to s. 30(1), a provincially appointed OCJ judge only has authority to make a provisional order varying an order made by a federally appointed judge where the applicant resides in Ontario and believes the reciprocating jurisdiction requires one. In this case, the applicant resides in Alberta. Therefore, by virtue of s. 26(1)(a), the originating order can only by varied by a federally appointed judge here in Ontario.

[22] The question that now arises is what to do about the provisional order made in this case. Given the unusual way in which this matter found its way from this court to the OCJ and back again, I propose to treat the matter as though it were an appeal under s. 48 of the Family Law Act, R.S.O. 1990, c. F.3, to quash the OCJ order for want of jurisdiction, and to substitute this court's order, with my apologies to all concerned.

[23] I turn now to the merits of the application.

Whether the Original Order Should be Varied

[24] The OCJ judge provisionally ordered that the respondent pay ongoing monthly child support in the amount of $744, based on the respondent's 2016 line 150 income of $78,994, commencing on February 1, 2018. The OCJ judge's decision with respect to quantum is supported on the evidence, but I require further information with respect to the date upon which it should be effective.

[25] The original order was based on imputed income of $65,000 for the year 2015. The evidence filed on the application indicates that the respondent's income for that year was actually $77,304 and that his income for 2016 was $78,994. As I understand the application, the applicant seeks to increase the monthly support effective 2016. However, there is no information as to when she received the evidence she relies on in support of her request for an increase or why she waited until January 2018 to file her application to vary. I require that information.

[26] In addition to seeking a variation with respect to ongoing support, the applicant also seeks variations relating to ongoing extraordinary expenses and to arrears accumulated under the original order. With respect to the former, the original order required the respondent to pay 65% of extraordinary expenses in the total amount of $2,225 per year. However, the applicant indicates that these expenses have increased since the making of the order. She states that they are now in the amount of $11,200, after subsidies.

[27] The applicant seeks an order that the respondent pay 55% of these ongoing extraordinary expenses. However, she indicates that she will earn $45,552 in 2018. Based on this information, the respondent should be paying 65% of ongoing extraordinary expenses, not 55%. I require further information to explain this apparent discrepancy.

[28] I also require further information regarding the applicant's request relating to arrears. In one part of her application, she states that the arrears should be fixed in the amount of $17,942.72. In another, she states that they should be fixed in the amount of $18,459.37. Further, it is not clear whether either of these figures is based on retroactively increased ongoing support, or on the support that was payable under the original order. I require clarification.

[29] In addition to the information required above, it would be most helpful if the applicant could include a draft order.

CONCLUSION

[30] Section 34 of the ISOA provides that, where a court requires further information, the court shall send the ISO Unit a direction to request the information from the applicant or the appropriate authority in the reciprocating jurisdiction. I am making that request directly by sending a copy of this endorsement to the ISO Unit.

[31] Because this matter is now before a different court, and given my view that the OCJ had no jurisdiction to vary the original order, I am also directing court staff to fix a date for a hearing under the ISOA before me and to send the respondent the appropriate notice with respect thereto. The date should be set far enough in the future to allow the applicant to provide the additional information referred to above.

Ellies J. Released: April 24, 2019

Footnotes

[1] As it turned out, the order in question in Rozzi was made under the Divorce Act. As a result, the motion judge refused to grant the refraining order, relying on the decision in Williams v. Ontario (Director of the Family Responsibility Office) (1999), 3 R.F.L. (5th) 316 (Ont. S.C.) to the effect that the applicant must move for a refraining order before the Superior Court where the order in question is made under the Divorce Act.

[2] Source: www.mcss.gov.on.ca/en/mcss/programs/familyresponsibility/General/livingOutOfOntario.aspx. Thus, had the order in question not been made under the Divorce Act, the OCJ judge in Rizzo would have had jurisdiction to make a provisional order, because Québec requires one. However, as the motion judge never mentioned this, I assume that he did not intend to restrict his comments to provisionally varying Québec orders.