Court File and Parties

Court File No.: Stratford FS-19-00000395 Date: 2021-02-16 Superior Court of Justice – Ontario Family

Re: Douglas Diehl and Brenda Diehl, Applicants And Brian Wierenga, Respondent

Before: Justice S. Nicholson

Counsel: J. Sipos, for the Applicants, Douglas and Brenda Diehl No one appearing for Respondents

Heard: December 8, 2020

Reasons

NICHOLSON J.:

[1] This uncontested hearing arises out of tragic circumstances.

[2] The applicants are the maternal aunt and uncle of Kaitlyn and Victoria Wierenga. On February 13, 2019 Kaitlyn and Victoria’s mother died of cancer. Since then they have been living with the applicants.

[3] Kaitlyn was born on August 1, 2001 and is currently 19 years of age. She is attending the University of Ottawa. Victoria was born on October 22, 2003 and is now 17 years of age. She is completing high school and intends to pursue post high school education.

[4] The respondent is the father of the two young women.

[5] The within application was commenced seeking custody and child support on March 11, 2019. While the court does not have jurisdiction to award custody in respect of a person age 18 or older, I am asked to do so on the basis that at the time that the application was commenced Kaitlyn was not yet 18 years of age. I am advised by the applicant that both Kaitlyn and Victoria would be eligible for benefits through the applicants’ employment should custody be granted.

[6] The Office of the Children’s Lawyer has conducted interviews with both Kaitlyn and Victoria and there is a truncated report in the material before me, dated May 7, 2020. It is clear at this stage neither of them desire to have a relationship with their father. Given their age they are clearly entitled to determine the nature of their relationship with their father, if any. They have a good relationship with the applicants.

[7] As part of these proceedings, Hebner J., by order dated August 23, 2019, ordered that the respondent pay $13,174.00 to the applicants towards the costs of Kaitlyn’s education for the 2019-2020 school year. The order also required that the respondent’s obligation to pay child support was to be secured by a charge on his trailer home. He was also to pay any and all monies received from Canada Revenue Agency for the child tax benefit payable to him, retroactive and ongoing, for the children to the applicants’ solicitors to be held in trust pending agreement of the parties or further court order.

[8] In her endorsement Justice Hebner noted that there was a life insurance policy on the mother’s life in the amount of $230,000 which the respondent received on March 22, 2019. The respondent also estimated that he would receive the sum of $79,459.15 in retroactive child tax benefits as he has filed income tax returns for the years 2012-2018.

[9] Despite the order of Hebner, J. the respondent had not paid into trust any monies received by him from the Canada Revenue Agency for the child tax benefit. The respondent did pay $13,174.00 towards Kaitlyn’s tuition as per the order. Her total school expenses for that year were $16,665.76, leaving a balance of $3,491.76. However, I note that Justice Hebner determined that Kaitlyn should contribute $3,000 towards the costs of her education. Thus, the entire balance is not recoverable by the applicants from the respondent.

[10] To the date of the hearing of this matter, Kaitlyn’s 2020-2021 school expenses have been $8,664.63. Although not yet judicially determined, the respondent should be assisting with those expenses as well.

[11] The respondent has not made any regular monthly child support payments since Kaitlyn and Victoria started living with the applicants.

[12] This matter was before Aston J. on October 6, 2020 as a settlement conference. The respondent did not attend, had not retained counsel and had filed no responding material. As a result, Aston J. noted him in default and the matter was adjourned to this date for an uncontested hearing. Justice Aston also granted an order for oral questioning for the purpose of the uncontested hearing.

[13] The respondent was questioned on November 6, 2020. During that examination the respondent confirmed that he had received at least one payment from the Canada Revenue Agency for the child tax benefit. He was unable to answer whether he had received more than one. He also confirmed that he has two bank accounts, each with a separate banking institution.

Issues

[14] The issues before me on this uncontested hearing are as follows:

(a) The applicants seek a nunc pro tunc order for legal custody of Kaitlyn Elizabeth Wierenga, born August 1, 2001 and Victoria Ann Wierenga, born October 22, 2003 from the initial date of their application.

(b) The applicants seek a vesting order pursuant to s. 34(c) of the Family Law Act, R.S.O. 1990, c. F.3, as amended (“FLA”) with respect to the respondent’s bank accounts.

Resolution of the Issues

(a) Custody/Nunc Pro Tunc Order:

[15] In determining custody, s. 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended (“CLRA”) sets out the applicable factors to consider in determining the best interests of the children. Those factors include the love, affection and emotional ties between the child and each person claiming custody, the child’s views and preferences, the length of time that the children have lived in a stable home environment, the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child and the ability of each person applying for custody to the child to act as a parent.

[16] Having reviewed the affidavit of the applicant, Douglas Diehl, the truncated OCL report and the transcript from the questioning of the respondent I am satisfied that custody of Victoria ought to be awarded to the applicants. It is clearly in accordance with her views and preferences and, I conclude, in her best interests.

[17] However, Kaitlyn is no longer a “child” as defined in the CLRA, s. 18(2), as she is no longer a minor. Accordingly, I am asked to grant this order on a nunc pro tunc basis effective as of the date of the application when Kaitlyn was still under the age of 18. I am advised that this would allow her to be eligible for certain benefits through her aunt and uncle as a dependent. The applicants submit that this court can rely on its parens patriae jurisdiction to make such an order.

[18] The applicants have provided me with no cases in which a court has backdated an order for custody in respect of a person who is no longer a minor. I would not have thought that it would be a novel situation in which a child turns 18 years of age between the time that an application for custody is commenced and the date of the resulting determination.

[19] The parens patriae jurisdiction exists in order to do what is necessary for the protection of the person for whose benefit it is invoked. The discretion to use it is not unlimited. It is founded on necessity, namely the need to protect those that are unable to protect themselves (See: E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388, [1986] S.C.J. No. 60 (S.C.C.)).

[20] Superior courts have relied upon its inherent parens patriae jurisdiction to rescue a child in danger or to fill legislative gaps (See: Bhajan v. Bhajan, 2010 ONCA 714, 325 DLR (4th) 653). However, parens patriae does not confer jurisdiction upon the court to rewrite legislation and procedure (See: Lennox and Addington Family and Children’s Services v. T.S., [2000] O.J. No. 1420 (Sup.Ct.)).

[21] In the within case, Kaitlyn is not in any danger that warrants utilization of my parens patriae jurisdiction. Furthermore, there is no gap in the legislation. The CLRA has quite clearly determined that to be the subject of a custody order a person must be a “child”, which for Part III of the CLRA specifically requires the person to be a “minor”. In my view, resort cannot be had to my parens patriae jurisdiction to order custody in respect of Kaitlyn.

[22] The court has an inherent jurisdiction to backdate an order, recognized by the doctrine of nunc pro tunc, Latin for “now for then”. Whether a court exercises this jurisdiction is based on fairness and the interests of justice. Typically, nunc pro tunc orders are used to relieve prejudice that results to the party seeking the order from delays that occur that are beyond the control of the party. They are most often seen in the context of backdating orders so that a limitation period does not unfairly bar a claim if the party has acted prior to the expiration of the limitation period but been unable to secure an order in time due to no fault of its own.

[23] In Hogarth v. Hogarth, [1945] O.W.N. 448, Kelly J., at p.449 stated as follows:

There is inherent jurisdiction in the Court to make orders nunc pro tunc to validate proceedings which have been carried out and have been found ineffective by reason of some slip or oversight having been made in the conduct of such proceedings, and to ensure against some injustice resulting therefrom.

[24] On my review of cases in which nunc pro tunc orders have been granted, the doctrine has been relied upon primarily to remedy procedural defects. I am unaware of any cases in which the doctrine has been used to backdate an order for custody, as requested in this situation. As noted, counsel for the applicants did not provide me with any cases on this issue.

[25] In A.L. v. S.M. and P.C., 2009 ONSC 37344, the biological father in an adoption proceeding asked the court to make a nunc pro tunc order that he was a “parent” under the Child and Family Services Act, R.S.O. 1990, c. C.11, as amended, such that an adoption placement be declared invalid. In refusing to do so MacKinnon J. stated as follows, at para. 39:

Finally, Mr. L. submits that insofar as it is now conceded that he is a parent, the court should exercise its authority to make a nunc pro tunc order that he was a “parent” before December 24, 2008. Nunc pro tunc orders are made routinely in connection with administrative, clerical or procedural errors or omissions, but are not suitable for a declaration of status with substantive law significance.

[26] In support of their request, the applicants point to the delay in this matter caused by the respondent changing counsel. However, this occurred after Kaitlyn had already turned 18 years of age. From the record, it appears that the respondent had counsel when Justice Hebner made her order in August of 2019. It was not until the summer of 2020 when this appears to have become an issue.

[27] Kaitlyn turned 18 on August 1, 2019, approximately 5 ½ months following her mother’s death. The application for custody was issued on March 11, 2019. This is not a case, in my opinion, in which undue delay caused the issue of custody over Kaitlyn to become moot. Simply put, there was no delay that prevented the granting of custody, just the impracticality of that issue being judicially determined within the narrow window of time between the application being commenced and Kaitlyn’s 18th birthday.

[28] Accordingly, I have concluded that it is not appropriate to grant an order for custody over Kaitlyn on a nunc pro tunc basis in the circumstances before me. This court has no jurisdiction to order custody in respect of Kaitlyn.

(b) Vesting Order:

[29] Section 34 of the FLA sets out the powers of the court with respect to applications for support orders, including child support. Among the powers enumerated from (a) to (k) is the power to make a vesting order or trust order, set out as follows:

“34 (1) In an application under section 33, the court may make an interim or final order;

…(c) requiring that property be transferred to or in trust for or vested in the dependent, whether absolutely, for life or for a term of years;”

[30] The leading case on vesting orders is Lynch v. Segal, 2006 ONCA 42240, 2006 CarswellOnt 7929 (C.A.), where Blair J.A., for the court, stated at paras 32 and 33:

32 I do not think any useful purpose is served by attempting to categorize the types of circumstances in which a vesting order may issue in family law proceedings. The court has a broad discretion, and whether such an order will or will not be granted will depend upon the circumstances of the particular case. I agree with the appellants that the onus is on the person seeking such an order to establish that it is appropriate. As a vesting order - in the family law context, at least - is in the nature of an enforcement order, the court will need to be satisfied (as the trial judge was here) that the previous conduct of the person obliged to pay, and his or her reasonably anticipated future behaviour, indicate that the payment order will not likely be complied with in the absence of more intrusive provisions: see Kennedy v. Sinclair (2001), 2001 ONSC 28208, 18 R.F.L. (5th) 91 (S.C.J.), affirmed 2003 ONCA 57393, 42 R.F.L. (5th) 46 (C.A.). Thus, the spouse seeking the vesting order will have already established a payment liability on the part of the other spouse and the amount of that liability, and will need to persuade the court that the vesting order is necessary to ensure compliance with the obligation.

33 In addition, the court should be satisfied that there is some reasonable relationship between the value of the asset to be transferred and the amount of the targeted spouse's liability and, of course, that the interests of any competing execution creditors or encumbrancers with exigible claims against the specific property in question are not an impediment to the granting of a vesting order. However, I would not go so far as to say - as argued by the appellants - that the onus to satisfy the court on these matters is at all times on the person seeking the order. I shall return to these issues later in these reasons.

[31] Thus, a vesting order is in the nature of an enforcement order and the court needs to be satisfied that the previous conduct of the person obliged to pay, and his or her reasonably anticipated future behaviour, indicate that a payment order will not likely be complied with in the absence of a more intrusive provision (see Smith v. Davies, 2018 ONSC 920).

[32] The court should also be satisfied that there is some reasonable relationship between the value of the property to be transferred and the amount of the liability.

[33] Applying this law to the facts, firstly Hebner J.’s order did not determine the quantum of child support, if any, that the respondent was obligated to pay for the benefit of the children. She did order that he pay a specific amount towards Kaitlyn’s 2019-2020 school year. The respondent has, in fact, paid that sum.

[34] Justice Hebner did order that any child tax benefits received from the Canada Revenue Agency be paid to the applicant’s solicitors, in trust, pending agreement of the parties or a further court order. By his own admission during the oral questioning, the respondent has received at least one payment in that regard and has not paid it to the applicant’s solicitor. Accordingly, there is reason to be concerned that he will not do so, given that over a year has passed since that order.

[35] It is impossible to say what the current value of the bank accounts is on the evidence before me. Thus, there is a risk that the amount in the bank accounts significantly exceeds the amount of the respondent’s liability for support.

[36] I have concluded that the vesting order sought by the applicants is over-reaching, at this juncture. The respondent’s reported income is meager and although he is clearly obligated to support his children as he is able, transferring title to his bank accounts is too drastic a step in this case. Justice Hebner has already imposed a charging order on the respondent’s trailer home and that any monies received in respect of child tax benefits be paid to applicants’ counsel, to be held in trust.

[37] At this time, there is insufficient evidence for me to conclude that substantial child tax benefits have been received by the respondent. I do believe that the applicants are entitled to the court’s assistance in determining how much the respondent has in fact received. The respondent undertook during the oral questioning to produce a printout of banking activity with respect to the two bank accounts in question. Accordingly, I order that those institutions produce to the applicants a printout of the bank account activity from August 23, 2019 to present. This will assist the applicants and the court in knowing whether the respondent is in breach of Hebner J.’s order and what is fairly available to satisfy his obligations to his children.

Disposition

[38] For the foregoing reasons, I hereby order that:

1. The applicants, Douglas James Diehl and Brenda Annette Diehl shall have custody of the child, Victoria Ann Wierenga born October 22, 2003;

2. Your Neighbourhood Credit Union located at 1067 Ontario Street, Stratford, Ontario, Festival Marketplace Shopping Centre, shall forthwith produce to the law firm of Waghorn, Stephens, Sipos and Poulton, at the applicants’ reasonable expense, a printout of the account activity for the period August 23, 2019 to present with respect to any and all bank accounts held there by the respondent, Brian Edward Wierenga; and

3. The RBC located at 965 Ontario Street, Stratford, Ontario, shall forthwith produce to the law firm of Waghorn, Stephens, Sipos and Poulton, at the applicants’ reasonable expense, a printout of the account activity for the period August 23, 2019 to present with respect to any and all bank accounts held there by the respondent, Brian Edward Wierenga.

[39] The request for a vesting order with respect to the bank accounts held at these two institutions is dismissed without prejudice to the applicants’ right to renew this request upon receipt of the respondent’s banking records.

[40] This matter is adjourned to February 23, 2021 at 11:00 am to be spoken to. I am not seized of this matter.

Justice Spencer Nicholson

Date: February 16, 2021