COURT FILE NO.: FC-07-1534-2
DATE: 20191018
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JULIAN HERNANDEZ
Applicant
– and –
BARBARA MONTGIRAUD
Respondent
Self-represented
Self-represented
HEARD: In writing
REASONS FOR decision
audet j.
[1] The applicant father (moving party) brings a motion to change the final order of Backhouse J. dated May 30, 2008, which requires him to pay child support in the amount of $185 per month to the respondent mother (responding party) for the support of the parties’ child, Felicia, who was born on November 11, 1995 (now 23). The father seeks an order terminating his child support obligation effective May 2015.
[2] In his motion to vary, the father had sought termination of his child support obligations retroactively to May 2016. At the time, the father was not legally represented, and he believed that his daughter had completed her post-secondary education on or about that time. Since then, the father has learned that his daughter had, in fact, completed her studies one year prior. He therefore seeks termination of his child support obligations as of May 2015.
Procedural History
[3] This motion to change was brought by the father after he was served by the Family Responsibility Office (“FRO”) with a notice of default hearing, in November 2018. As confirmed by FRO’s statement of arrears dated May 28, 2019, as of July 1, 2015, the father was in complete compliance with his child support obligations, and even had a negative balance of - $640.
[4] In March 2019, the father filed his motion to change which was served personally on the mother on April 27, 2019. It is to be noted that while the father lives in Ottawa, the mother and the child live in Toronto. The first court date was scheduled to proceed on May 15, 2019. On that day, the mother had not served or filed a response to the father’s motion to change. However, as the 30-day period within which a response needed to be served had not expired, it was adjourned to June 17.
[5] On June 17, the respondent had still not served or filed any responding materials, and again, did not appear. However, on May 7, she had sent the Ottawa court a two-page document stating that she lived and worked in Toronto and that it was unreasonable for her to attend any court proceedings in Ottawa “mostly based on all the factual errors contained in the court documents”. In light of this, and despite the fact that the 30-day period within which to file a response had expired, as a courtesy to the mother, the matter was transferred before Master Kaufman who granted the mother an extension of time within which to serve and file her responding materials by July 2, 2019. The endorsement provided that if no materials were filed by July 2, the father would be permitted to proceed to an uncontested trial.
[6] The father served the mother with Master Kaufman’s endorsement on June 17, 2019, by regular mail to the address provided by the mother in her correspondence to the court. For a reason that is unknown to me, on June 25, 2019, a temporary order was made by Master Fortier, in chambers, without notice to either party. Pursuant to that order, the mother was granted a second extension of time within which to serve and file her responding materials by July 23, 2019. If no materials were filed, the father was “allowed to proceed to obtain a provisional order”.
[7] On July 2, 2019, Mr. Paul Riley, a lawyer, wrote to the court to confirm that he was being retained by the mother to deal with the father’s motion to change. On behalf of the mother, he sought a brief adjournment to allow him time to file a response on behalf of his client. Despite her lawyer’s indication to the mother intended to serve and file a response, three months later she had not done so. She did not contact the father either to explain the delay or to seek a further extension of time. It has now been well over five months since the mother was served with the father’s motion to change, and despite two adjournments, her response has not been served or filed.
Provisional Order or Uncontested Trial
[8] Today, the father seeks an order finding the mother in default pursuant to rule 10(5) of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”) and allowing him to proceed to an uncontested trial rather than on a provisional basis pursuant to s. 44 of the FLA.
[9] In support of his position, the father is relying on the principles set out by Justice Kukurin in Cranston-Aube v. Stubbington, 2000 CanLII 28154 (ON CJ) and by Justice Mackinnon in L.D.P. v. D.R.M., (1997) 30 O.T.C. 379, which he argues support the conclusion that the court has discretion under paragraph 44(c) of the FLA to elect not to proceed by way of a provisional order.
[10] Section 44 of the FLA reads as follows:
44 (1) In an application under s. 33 or 37 in the Ontario Court (Provincial Division) or the Unified Family Court, the court shall proceed under this section, whether or not the respondent in the application files a financial statement, if,
(a) the respondent fails to appear;
(b) it appears to the court that the respondent resides in a locality in Ontario that is more than 150 kilometres away from the place where the court sits; and
(c) the court is of the opinion, in the circumstances of the case, that the issues can be adequately determined by proceeding under this section.
Idem
(2) If the court determines that it would be proper to make a final order, were it not for the respondent’s failure to appear, the court shall make an order for support that is provisional only and has no effect until it is confirmed by the Ontario Court (Provincial Division) or the Unified Family Court sitting nearest the place where the respondent resides.
Transmission for hearing
(3) The court that makes a provisional order shall send to the court in the locality in which the respondent resides copies of such documents and records, certified in such manner, as are prescribed by the rules of the court.
Show cause
(4) The court to which the documents and records are sent shall cause them to be served upon the respondent, together with a notice to file with the court the financial statement required by section 41, and to appear and show cause why the provisional order should not be confirmed.
Confirmation of order
(5) At the hearing, the respondent may raise any defence that might have been raised in the original proceeding, but if the respondent fails to satisfy the court that the order ought not to be confirmed, the court may confirm the order without variation or with the variation that the court considers proper having regard to all the evidence.
Adjournment for further evidence
(6) If the respondent appears before the court and satisfies the court that for the purpose of a defence or for the taking of further evidence or otherwise it is necessary to remit the case to the court where the applicant resides, the court may remit the case and adjourn the proceeding for that purpose.
Where order not confirmed
(7) If the respondent appears before the court and the court, having regard to all the evidence, is of the opinion that the order ought not to be confirmed, the court shall remit the case to the court sitting where the order was made with a statement of the reasons for doing so, and the court sitting where the order was made shall dispose of the application in accordance with the statement.
Certificates as evidence
(8) A certificate certifying copies of documents or records for the purpose of this section and purporting to be signed by the clerk of the court is, without proof of the clerk’s office or signature, admissible in evidence in a court to which it is transmitted under this section as proof, in the absence of evidence to the contrary, of the copy’s authenticity.
Right of appeal
(9) No appeal lies from a provisional order made under this section, but a person bound by an order confirmed under this section has the same right of appeal as he or she would have had if the order had been made under s. 34.
[11] The difficulty created by this provision is its inconsistency with sub-rule 10(5) of the Family Law Rules, O. Reg. 114/99 which provides an applicant or moving party with the procedural right to proceed to an uncontested hearing if the respondent chooses not to respond to the proceeding. Justice Kukurin put it this way in Cranston-Aube, at para. 12:
I cannot conclude that a respondent who hides his head in the sand like the proverbial ostrich and who does nothing even to indicate that he wishes to have the procedure under section 44 of the Family Law Act, should be able totally to ignore filing requirements of the Family Law Act and the child support guidelines, should force a confirmation proceeding at a considerable distance from where the applicant resides and should deprive an applicant of procedural rights to which any other applicant with ordinarily be entitled.
[12] For that reason, subsection 44(c) of the FLA has been interpreted as giving the court discretion to proceed by way of provisional order or not. In L.D.P. v. D.R.M., (1997) O.J. No. 2007, in dismissing the appeal lodged by a party against whom a final order was made by default instead of a provisional order under s. 44 of the FLA, Justice McKinnon stated (at para. 11):
… There remain in the trial court a discretion to be judicially exercised under subsection (c). There is no obligation on the trial court to invoke the provisions of section 44 when requested. A respondent who fails to appear may find himself or herself in the unhappy position of having a final order made against him or her.
[13] As stated in both these cases, s. 44 provides a three-part test. The first two parts of the test are questions of fact: (a) did the respondent party appear? and (b) does it appear that the responding party lives more than 150 km from the court? The court has a measure of discretion under the third part of the test in paragraph (c) which requires the court to consider whether, having regard to the particular circumstances of the case, it can adequately address the issues by way of a provisional hearing.
[14] In most cases that were brought to my attention, it appears that the case turned on whether the responding party had voiced his or her desire to proceed by way of provisional hearing under s. 44. What these cases do not address is the question as to whether the procedure set out in s. 44 would allow a responding party who has failed to file any materials in response to the proceeding, to present evidence and make representations in the context of the confirmation hearing to be held in his or her locality. This is a question that will have to be answered by the confirmation court if the mother chooses to appear at the confirmation hearing.
[15] On the facts of this case, I come to the conclusion that a provisional order must issue pursuant to s. 44 of the FLA. While I recognize that the respondent mother has been provided with ample opportunity to file her responding materials in the context of the father’s motion to change, and failed to do so, she has made it clear in her letter to the court dated May 7, 2019, that it was unreasonable for her to attend any court proceeding in Ottawa given that she lived and worked in Toronto. In that same letter, she stated “the validity of this procedure is seriously questioned”. She was self-represented at the time and may not have understood her right to invoke the procedure set out in s. 44 of the FLA.
[16] Further, in her order dated June 25, 2019, Master Fortier made it clear that if no materials were filed by the mother, the father was to proceed to obtain a provisional order. It is plausible that the mother, who at this point does not have counsel of record (since she has not filed a response yet), awaits service of this provisional order and the scheduling of a confirmation hearing to allow her to make representations to the court. Considering all the circumstances, I find that it would be inappropriate for me to make a final order today.
Provisional Order
[17] The uncontested evidence before me confirms that Felicia informed her father, when she finished high school in the summer of 2013, that she was going to attend college at Ryerson in Toronto. It was the father’s understanding from Felicia that this program was two years in duration. He was never provided with confirmation of her enrolment, program details or academic success. During a conversation between the father and Felicia which took place in July 2019 when she was visiting her grandmother in Ottawa, Felicia confirmed to her father that she had already graduated college when she attended her sister’s wedding in July 2015. She also confirmed that she had since been working in an Italian restaurant and in a hotel, and that she was now working as a model with a modelling agency from Montréal.
[18] Felicia is now 23 years old and continues to live in Toronto. The father does not know whether she still lives with her mother or if she is living independently. The father’s evidence is that he was under the mistaken belief that child support ended when a child turned 18. This is the reason why he did not take any steps to vary his child support obligations until he was served with a notice of default hearing by FRO. I find the father’s evidence in that regard quite questionable since the statement of arrears filed in evidence confirms that child support continued to be garnished from his sources of income well after the summer of 2015.
[19] This being said, the father is not seeking the reimbursement of any child support paid after May 2015. FRO’s statement of arrears confirms that he has paid almost $10,000 in child support since May 2015, which is a significant benefit to the mother and the child to the extent that Felicia did, in fact, cease to be a dependent child in May 2015. For that reason, I am prepared to terminate child support retroactively to June 1, 2015, on a provisional basis.
[20] As I am uncertain as to how quickly a confirmation hearing can be arranged in Toronto, a temporary order shall issue suspending the father’s child support obligations immediately, until further order of the court.
Madam Justice Julie Audet
Released: October 18, 2019
COURT FILE NO.: FC-07-1534-2
DATE: 20191018
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JULIAN HERNANDEZ
Applicant
– and –
BARBARA MONTGIRAUD
Respondent
REASONS FOR Decision
Audet J.
Released: October 18, 2019