Court File and Parties

COURT FILE NO.: 298/12

DATE: 2019-10-10

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ministry of Community and Social Services, I.S.O. Unit, Applicant For the benefit of Anna Edwards

AND:

Miles David Vaughan, Respondent

BEFORE: Madam Justice L. Madsen

COUNSEL: None

HEARD: October 9, 2019

ORDER AND REASONS

[1] This is the court’s order and reasons on a confirmation hearing under the Interjurisdictional Support Orders Act, S.O. 2002, c. 13.

[2] In this proceeding, the Interjurisdictional Support Orders Unit [ISO], on behalf of the Applicant Anna Edwards, seeks to have this court confirm the provisional order of “West Mercia Maintenance Enforcement” made March 26, 2013 by S. Abbott. That order contains a term setting arrears of £7,000, as well as an ongoing child support term for the child Charles Vaughan, in the amount of £50 per week. The order states: “Matter to be sent to Ontario for confirmation or amendment.”

[3] For the reasons which follow, this court declines to confirm the order of S. Abbott of the West Mercia Maintenance Enforcement.

Brief Background

[4] The parties are the parents of three now adult children: Barnaby Vaughan, born October 7, 1993 [“Barnaby”], who is now 26; Charles Vaughan, born September 6, 1994 [“Charles”], who is now 25; and Madeline Vaughan, born September 20, 1998 [“Madeline”], who is now 21.

[5] Anna Edwards resides in the United Kingdom (UK) and Miles Vaughan resides in Kitchener, Ontario.

[6] In October 2012, a confirmation hearing was held in the Ontario Court of Justice in relation to a provisional child support order made December 12, 2011 in the UK [“the first UK order”]. That order provided for child support in relation to Barnaby and Madeline. Mr. Vaughan was required to pay £200 per month per child, in addition to arrears of £2,000 as at December 12, 2011.

[7] On October 24, 2012 the Ontario Court of Justice made an order [“the Ontario order”] confirming the ongoing amount of child support for those two children as it was similar to what would have been owing under the Ontario Child Support Guidelines. Based on oral evidence about payments made directly to Ms. Edwards, Mr. Vaughan was also credited with payments of £3,000 towards any arrears owed at that time, which were not quantified by the Ontario Court of Justice. This may have put Mr. Vaughan in an overpayment position although that is not clear.

The Current Proceeding

[8] As noted above, in this proceeding, the ISO Unit, on behalf of Ms. Edwards, seeks to have this court confirm the provisional order of West Mercia Maintenance Enforcement made March 26, 2013 [“the 2013 UK order”].

[9] That order, made only five months after the October 24, 2012 confirmation hearing in Ontario, contains a term confirming ongoing support of £400 per month, and setting arrears of £7,000 in relation to the first UK order. No reasons were provided to this court.

[10] The 2013 UK order also sets ongoing child support for Charles Vaughan in the amount of £50 per week while attending full time post-secondary studies. The order then states: “Matter to be sent to Ontario for confirmation or amendment.”

[11] This court was also provided with supporting materials which appear to have been before the court in the UK. Those materials are date-stamped February 28, 2019 six years after the UK order sought to be confirmed was made. The materials received included:

a. documents which appear to confirm that Charles Vaughan attended Shropshire College in the UK in the fall of 2012;

b. a copy of a sworn statement of Ms. Edwards dated May 13, 2013 setting out arrears which she says accumulated in 2011, 2012, and 2013, totalling £3,400 as at that date, with a handwritten notation stating that the arrears totalled £3,327 as at February 27, 2015 (unsworn). These appear to be amounts in relation to Barnaby and Madeline, because they were accruing at a rate of £400 per month.

c. an undated, unsworn, incomplete, unsigned statement purporting to show other arrears in relation to the child Charles in the amount of £3,472. The rate of accumulation of arrears is not shown.

[12] Mr. Vaughan gave oral evidence that in 2016 he was contacted by the Family Responsibility Office (FRO) and was told by them that he owed a further $4,778.40 in child support arrears. He provided the court with a copy of a letter confirming same. Mr. Vaughan testified that these arrears related to the child Charles and the £50 per week obligation. He stated that he paid the arrears because he was content to see that his son was in school. He stated that the 2013 UK order duplicated arrears already dealt with in the 2011 UK order.

[13] However, the letter from the FRO dated August 11, 2016 regarding the $4,778.40 owed, states that the arrears accumulated between December 2011 and March 24, 2013, before the support order was made for Charles (that order was made two days later). In other words, they were arrears under the first UK order.

[14] Mr. Vaughan provided a Statement of Arrears showing that he paid the $4,778.40 to the FRO promptly upon receiving the letter. There was a zero balance as at September 9, 2016.

[15] Mr. Vaughan also provided in evidence a letter from the FRO dated July 14, 2017 indicating that his file had been closed as he did not owe any further support under the Ontario order, which did not contain a term for Charles.

[16] There is no indication from the FRO that they were at any time enforcing the amount in relation to Charles, under the second UK order, which is sought to be confirmed on this hearing.

A Note about Procedure

[17] This case is brought under the Interjurisdictional Support Orders Act, S.O. 2002, c. 13 [ISOA]. As many of my judicial colleagues have noted, the processes under that Act are complicated, slow, and inefficient. That this court is receiving the matter six years after the provisional order was made is very concerning.

[18] Under ISOA, when a designated authority (in this case the ISO unit of the FRO) receives a support application or a support variation application, it shall verify the respondent’s ordinary residence, and then send the application to the court.

[19] The court then serves the respondent with a copy of the application and a notice requiring him or her to appear.

[20] On the hearing, the court considers the documents sent from the reciprocating jurisdiction, and the evidence provided to the Ontario court.

[21] At the conclusion of the hearing, the Ontario court may make a support order, make a temporary support order, adjourn the hearing, or refuse to make a support order. If the Ontario court declines to make a support order, it must give reasons.

[22] In this case, it appears that although the provisional order was made in March 2013, it did not leave the UK until at least March 2019. The materials were forwarded to this Court and served on Mr. Vaughan by the Court on July 19, 2019 for an appearance returnable in court on August 28, 2019. On that date the matter was adjourned as Mr. Vaughan’s Answer was not in the record (although he indicated that it had been sent by registered mail the court).

[23] The matter returned to court yesterday, October 9, 2019. While this court is attempting to remedy at least some of the delay with an expeditious release of this decision, it is unclear why the matter was not forwarded to Ontario earlier.

[24] There must be a better way. In this age of technology, with video-conferencing and other technology available, it fairly boggles the mind that physical files are being sent across the ocean to address support issues in two different courts in two different countries, all while children become adults and support issues may become moot. It should by now be possible to run interjurisdictional support hearings with both parties present electronically. This would be faster, fairer, and much more cost effective.

Law and Analysis

Choice of Law

[25] In determining a child’s entitlement to support, the Ontario Court shall first apply the law of the jurisdiction in which the child ordinarily resides, and if the child is not entitled to support in that jurisdiction, the court shall apply Ontario law with respect to entitlement. In determining the amount of support, the Ontario Court shall apply Ontario law.

[26] Two different issues are raised on this confirmation hearing:

a. Whether this court should confirm the arrears as shown in the order of S. Abbott dated March 26, 2013 in the amount of £7,000, payable in respect of Barnaby and Madeline;

b. Whether this court should confirm the ongoing amount of child support of £50 per month payable in respect of Charles Vaughan, while pursuing post-secondary education.

Arrears re Barnaby and Madeline

[27] Arrears may have been owing as at the making of the second UK order in 2013.

[28] As noted, on October 24, 2012, the Ontario Court of Justice found that Mr. Vaughan should have credit of £3,000 towards any arrears but did not quantify what was owing as at the date of the order. He may or may not have been in an overpayment position at that time. Arrears as shown in the March 23, 2013 UK order do not appear to account for the payment recognized by the Ontario Court of Justice in 2012.

[29] In any event, based on the evidence provided by Mr. Vaughan at the hearing today, I am satisfied that any arrears which may have been owing in respect of Madeline and Barnaby have been paid in full. The FRO has been enforcing child support in respect of those children and it was clear as at September 19, 2016, which is the last entry on the FRO Statement of Arrears, that the balance owing was $0.00. Further, the letter from the FRO dated July 14, 2017 confirms that Mr. Vaughan had satisfied all amounts owing under the October 24, 2012 order made by the Ontario Court of Justice. The second UK order did not change the ongoing monthly amount in respect of each child, but merely confirmed it.

[30] In the circumstances, based on the evidence before the court, I decline to make a support order in relation to the arrears set out in the second UK order.

Arrears re Charles

[31] On the face of the second UK order, entitlement to child support for the adult child Charles was explicitly linked with full-time “tertiary education.” The order states “Order to continue while child (Charles) is in full-time tertiary education.” Charles was 18 when the order was made. In this sense entitlement to child support as an adult child in the UK appears to mirror Ontario law on entitlement to child support for adult children (in relation to the issue of education).

[32] The evidence before the UK court suggests that Charles was in college from September 2011 to November 2011, when he withdrew from his studies. The evidence then suggests that Charles pursued full-time studies during the fall of 2012.

[33] However, there is no evidence in the materials regarding the length of Charles’ academic program, or of continued post-secondary enrollment for Charles after December 2012. While he may have continued to be a student, there is no evidence of same.

[34] In the circumstances this court has insufficient evidence to make the order sought with respect to monthly support for Charles, from 2013 onwards.

[35] While there was some evidence before the UK court in 2013 with respect to post-secondary studies for a short period in 2012, the order made by that court on March 26, 2013 had no retroactive component. This court is not prepared to now order retroactive child support for a period now seven years ago when the UK court declined to do so.

Conclusion

[36] Based on the foregoing, the application for a confirmation order in relation to the March 23, 2013 Order of S. Abbott, West Mercia Maintenance Enforcement, is dismissed.

L. Madsen J

Date: October 10, 2019