COURT FILE NO.: FC-07-2715-02
DATE: 20190624
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PETER KENNETH MILLER
Applicant
– and –
WENDY SCOTT-O’LEARY
Respondent
Self-Represented
Unrepresented
HEARD: June 19, 2019
REASONS FOR decision
Audet J.
[1] This is a motion to vary child support brought by the applicant, Peter Kenneth Miller (“Mr. Miller”), against the respondent Wendy E Scott-O’Leary (“Ms. Scott-O’Leary”). Mr. Miller is seeking to vary the Final Support Order of Justice Green, of the New Brunswick Court of Queen’s Bench, made on January 21, 2009 under New-Brunswick’s Interjurisdictional Support Orders Act, S.N.B. 2002, 12.05 (“New-Brunswick’s ISO Act”). Pursuant to that Order, Mr. Miller is required to pay child support in the amount of $963 per month to Ms. Scott-O’Leary for his two children, based on an annual income of $64,400, commencing on June 1, 2007.
[2] More precisely, in the context of his Motion to Change, Mr. Miller seeks the following relief:
an order terminating his child support obligation for both children as of April 1, 2012;
an order retroactively varying the amount of his child support obligation for the years 2009 to April 1, 2012;
an order that he be credited for any overpayment of child support paid during those years;
an order that the Family Responsibility Office reinstate his passport and driver’s licence immediately;
an order that the Family Responsibility Office cease enforcing para. 4 of Justice Green’s order (ongoing payment of child support) immediately.
[3] The Final Order made under the New-Brunswick’s ISO Act was registered in Ontario pursuant to Part III of Ontario’s Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13 (“Ontario ISO Act”) in 2008 or 2009, and the Family Responsibility Office (“FRO”) began enforcing its terms.
[4] It is Mr. Miller’s position that his children, Zachary (born in January 1992 and currently 27) and Devon (born in February 1993 and currently 26) ceased to be children of the marriage in April 2012 as they were both adults at the time (20 and 19) and no longer attending a full-time program of post-secondary education. Mr. Miller explains that he has sought confirmation of the children’s enrollment in post-secondary education programs since at least that date, without success, and that he continuously made efforts to get the FRO to suspend his support obligations until Ms. Scott-O’Leary provides that evidence. As the FRO did not follow up on his requests, he attempted to have them terminate/stop enforcing the existing Child Support Order given the children’s age, to no avail.
[5] In his efforts to obtain relief from the FRO, Mr. Miller sought and obtained the support of his MPP, Ms. Nathalie Des Rosiers, to interfere on his behalf with the FRO and compel it to exercise its discretion under s. 7(1) or 8.1 of the Family Responsibility and Support Arrears Enforcement Act, S.O. 1996, c. 31 (“FRSAE Act”), as am., to refuse to enforce the Support Order or to discontinue its enforcement based on the facts of this case. When the FRO did not engage, and enforcement proceedings resulted in Mr. Miller’s driver’s licence and passport being suspended, he finally retained a lawyer and filed his Motion to Vary seeking the above relief.
[6] There were a number of questions raised by Mr. Miller’s proceedings, as well as with his evidence. As Mr. Miller is self-represented, and the court did not have the assistance of legal submissions, I reserved on my decision for the purpose of reviewing the legal principles raised by some of the questions I had. Following is my analysis of these questions and my decision on Mr. Miller’s claims for relief.
Lack of Service on the Family Responsibility Office
[7] Firstly, Mr. Miller seeks relief against the FRO, but it does not appear that the FRO was ever served with his motion materials. His claims for relief against the FRO cannot proceed until and unless his motion is properly served on the FRO. Therefore, his claim for the reinstatement of his driver’s licence and passport will be adjourned to a date to be set by the Trial Coordinator, once Mr. Miller has served the FRO with his motion materials, by sending a copy thereof to the FRO along with a copy of this decision, by fax or mail/delivery at:
By fax: (416) 240-2402
By mail or delivery:
Legal Services Branch
Family Responsibility Office
Ministry of Children, Community and Social Services
7th Floor-125 Sir William Hearst Avenue
North York ON M3M 0B5
[8] Given my decision on the issue of Mr. Miller’s request for the termination of his child support obligation effective April 1, 2012, such hearing may not be necessary. In any event, if it remains necessary, the motion shall be returned before me at a date to be arranged by the Trial Coordinator no later than the end of July 2019 (unless agreed to otherwise by Mr. Miller and the FRO).
Retroactive Variation of Support
[9] Secondly, and although seeking a retroactive variation of his child support obligation for the years 2009 to 2012, Mr. Miller did not file any Income Tax Returns, Notices of Assessment or other income information (although he did file a sworn financial statement along with an estimation of income earned since 2009). When questioned about why he had not filed his Income Tax Returns, Mr. Miller indicated that he had not done his taxes for years. While he does work, it is through a corporation solely owned by him which, he states, has not filed income tax returns for years either.
[10] When advised that the court would not consider his requests unless he was able to produce proof of income earned over the years for which he seeks a variation of his support obligations, Mr. Miller confirmed that he would rather abandon that claim than have to pay the significant costs of hiring an accountant to put his tax situation in order. Therefore, and on consent of Mr. Miller, this claim for relief is dismissed.
Motion to Vary under the Family Law Act or the Interjurisdictional Support Orders Act?
[11] The only issue remaining, therefore, is whether or not Mr. Miller’s child support obligations towards his two children should be terminated effective April 1, 2012, as requested by him.
[12] During the motion hearing, I questioned whether Mr. Miller ought to have filed his variation application under the ISO Act as opposed to the Family Law Act, R.S.O. 1990, c. F.3. (“FLA”). The Support Order that Mr. Miller wishes to vary is an Order from the court of New-Brunswick which was made under its ISO legislation (Mr. Miller and Ms. Scott-O’Leary were never married). It was registered in Ontario under Part III of Ontario’s ISO Act. The two children, as well as the recipient mother, continue to live in New Brunswick.
[13] Our Court of Appeal has made it clear in Navarro v. Parrish, 2014 ONCA 856, and in Jasen v. Karassik, 2009 ONCA 245, that the ISO Act provides an alternative procedure and does not bar an applicant from seeking support (or varying a support order) from an out-of-province respondent under the FLA, provided that the court has jurisdiction to hear the claim. An Ontario court has jurisdiction under the FLA provided that there is a real and substantial connection between the claim and Ontario. Although there is conflicting caselaw in other Canadian provinces, I am bound by the decisions of our Court of Appeal on the subject.
[14] Here, although the children and the recipient both reside in New-Brunswick, the payor lives and works in Ontario. The New-Brunswick Order was registered in Ontario and, by virtue of Part III of the ISO Act, became an Order of the Ontario Court. A Support Deduction Order was made under the FRSAE Act and enforcement proceedings were commenced in Ontario. Given the age of the children, there will never be corollary custody and access proceedings initiated and adjudicated in New-Brunswick which would result in a duplication of proceedings. For those reasons, I find that it was open to Mr. Miller to initiate a Motion to Vary the existing Support Order in Ontario, and pursuant to Ontario’s FLA.
Termination of Mr. Miller’s Child Support Obligations
[15] Ms. Scott-O’Leary was personally served with Mr. Miller’s Motion to Vary on March 22, 2019. She did not respond to the proceedings despite the fact that almost three months have passed. She is therefore noted in default.
[16] In his motion materials, Mr. Miller provided a few emails exchanged with his children and Ms. Scott-O’Leary on the issue of the children’s post-secondary education plans. On May 1, 2013, Zachary wrote to his father that he had been out of school for about a year (as of April 2013), and that he had applied for a job at Irving for the summer. He indicated that he was planning on going back to school in September, studying Business Administration at the New Brunswick Community College in Saint John. In another email exchange dated July 24, 2014, Ms. Scott-O’Leary is indicating that Devon is going back to school “next month” (i.e. in August 2014) and that she was successful at getting a large portion of the costs covered by her program. Emails exchanged in August confirm that Mr. Miller covered his portion of those costs in the amount of $3,925.00.
[17] As part of his materials filed for the motion, Mr. Miller indicates that Zachary took time off school from the end of the school year in April 2012 (Zachary would then have been 20 years of age) to September 2013 when, Mr. Miller was told, he apparently resumed school. It is unknown to me (and to Mr. Miller) whether Zachary was in school full time or part-time thereafter, what his income was during those subsequent years, what his living arrangements were, what program he was registered into (if any) and whether he successfully completed the program.
[18] Similarly, Mr. Miller believes that his daughter Devon was not in school after she completed high school in June 2011 (at age 18), although he is aware that she was working at a pet shop in 2012 and 2013, before becoming a full-time stylist in 2014, and that she lived with her boyfriend since 2012 or 2013. Mr. Miller is aware that Devon completed a hair stylist program, but the duration of this course is unknown.
[19] Mr. Miller does not appear to have had a very close relationship with his children, and in his materials and oral submissions, he confirmed that he had very little information, about his children’s circumstances and enrolment in post-secondary education programs once they became 18 years of age, other than what is related above.
[20] It was opened to Ms. Scott-O’Leary to provide her response to Mr. Miller’s Motion to Vary, but she did not. She was fully aware of the fact that Mr. Miller was seeking a termination of his child support obligations for both children as of April 1, 2012, for the reasons outlined above, and she chose not to file any responding materials.
[21] Based on all of the above, I make the following order:
- Mr. Miller’s child support obligation pursuant to the Order of Justice Green dated of the New Brunswick Court of Queen’s Bench, made on January 21, 2009, registered in Ontario under Part III of the Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13, is terminated effective April 1, 2012.
Madam Justice Julie Audet
Released: June 24, 2019
COURT FILE NO.: FC-07-2715-02
DATE: 20190624
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PETER KENNETH MILLER
Applicant
– and –
WENDY SCOTT-O’LEARY
Respondent
REASONS FOR decision
Audet J.
Released: June 24, 2019