COURT FILE NO.: F416/95-06 DATE: 20210319
ONTARIO SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Blake Reid Cromwell unrepresented Applicant
- and -
Terry Lynn Brine unrepresented Respondent
HEARD: In Writing
MITROW J.
INTRODUCTION
[1] The applicant resides in Halifax, Nova Scotia. The respondent resides in London, Ontario.
[2] The applicant has applied pursuant to the Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13 (the “ISO Act”) to vary an existing order in relation to child support. The provisions of sections 32-38 of the ISO Act are applicable to this support variation application. For reasons that follow, the application is dismissed.
FINAL ORDER SOUGHT TO BE VARIED AND THE RELIEF SOUGHT
[3] All relevant underlying final child support orders were made in London, Ontario. The child support relates to the parties’ two children, both born December 16, 1994. Each child is now age 26.
[4] The evidence in the applicant’s current application is that he moved to Halifax, Nova Scotia in 2011.
[5] On August 1, 2018, McArthur J. made a final order in this court (the “final order”) in relation to a previous application commenced by the applicant pursuant to the ISO Act.
[6] McArthur J. fixed the child support arrears at $24,247.10 and ordered the arrears to be paid at the rate of $500 per month. In his reasons, McArthur J. found that “the applicant has not, on balance, had an overall reduction of income to warrant a reduction in child support”.
[7] In quantifying the child support arrears, McArthur J. made a deduction for a period of eight months where one of the children was not in school and was working.
[8] The applicant seeks the following relief in his support variation application (form A.2) filed with the court: (a) changing the payment from $500 per month to $200 per month; (b) fixing the arrears at $7,030.80 as at October 29, 2019; and (c) terminating the obligation to pay support for both children as of October 29, 2019.
[9] The applicant has failed, as required, to include copies of all child support orders with his material. He has filed only the endorsement of McArthur J. It appears that the most recent final order of child support was the order of Taylor J. dated December 21, 2005 requiring the applicant to pay child support for both children in the amount of $462 per month based on an income of $31,500. It is unclear whether prior to the final order of McArthur J. there had been an order formally terminating the child support obligation given the ages of the children. However, it is clear from the evidentiary record that there are no ongoing child support payments and the only ongoing payment was for arrears as ordered by McArthur J.
[10] The applicant’s support variation application was signed and sworn on December 13, 2019 in Halifax. The application was accompanied by other documents pursuant to the ISO Act including: form K (evidence to support variation of an order); form I (financial information); and an affidavit sworn December 13, 2019.
PROCEDURAL MATTERS
[11] The material filed by the applicant was received by this court from the designated authority for Ontario by letter dated June 2, 2020 and was served personally on the respondent in London, Ontario on August 5, 2020 by the sheriff’s officer.
[12] The documents served on the respondent included a notice of hearing (form 37) dated July 29, 2020. The notice of hearing stated that the court would hold a written hearing on October 5, 2020 and also included the standard notice that if the respondent wanted to ask for an oral hearing, then the respondent was required to file a form 14B motion within 30 days after being served with the notice of hearing. No form 14B motion was filed by the respondent.
[13] In his application, the applicant requests to be notified of all hearings arising from his application and to be given the opportunity to attend all hearings by telephone or other technology. However, these requests, which are printed on the application form, are stated to be subject to the rules and procedures of the reciprocating jurisdiction – in this case Ontario.
[14] Rule 37 of the Family Law Rules, O. Reg. 114/99 [as amended] applies to proceedings under the ISO Act. The right to a hearing is governed by rules 37(7) to (9):
WRITTEN HEARING
(7) Unless the court orders otherwise under subrule (9), the application shall be dealt with on the basis of written documents without the parties or their lawyers needing to come to court.
REQUEST FOR ORAL HEARING
(8) The respondent may request an oral hearing by filing a motion form (Form 14B) within 30 days after being served with the notice of hearing.
ORDER FOR ORAL HEARING
(9) The court may order an oral hearing, on the respondent’s motion or on its own initiative, if it is satisfied that an oral hearing is necessary to deal with the case justly.
[15] The applicant is well aware that in Ontario, presumptively, applications under the ISO Act are dealt with in writing and that the applicant has no specific right to request an oral hearing. This procedure was discussed and explained at some length in Brine v. Cromwell, 2018 ONSC 6927 (Ont. S.C.J.) [1], a decision of Henderson J. who dismissed the applicant’s motion to set aside the final order of McArthur J.
[16] Although the court can order an oral hearing pursuant to r. 37(9), this is not a case where an oral hearing is required to deal with the case justly.
[17] The respondent has filed no documents in response to the application.
[18] Accordingly, I determine this matter by way of a written hearing.
[19] The written hearing did not proceed on October 8, 2020 as set out in the notice of hearing given the circumstances surrounding the pandemic. It was in early March 2021 that this application was forwarded to a judge to be dealt with.
DISCUSSION
[20] As noted earlier, there is no ongoing child support obligation. The final order dealt with payments regarding arrears that had accumulated pursuant to the underlying child support orders.
[21] Much of the evidence of the applicant, unfortunately, is of little probative value. The applicant seeks, in essence, to relitigate the issues that were before McArthur J. For example, the applicant’s evidence includes a summary of the applicant’s income for the years 2006-2014 with backup documents from the Canada Revenue Agency. This evidence was filed in support of the allegation that the applicant was ordered to pay too much child support based on his income and, therefore, according to the applicant, the arrears fixed by McArthur J. were too high and should be reduced.
[22] Quantification of arrears was an issue squarely before McArthur J. The final order was not appealed. The applicant’s current support variation application cannot undermine the final order.
[23] The support variation application must proceed on the basis that the final order was properly made and therefore the focus of the support variation application is an inquiry as to whether there has been a change in circumstances subsequent to the final order sufficient to justify a variation in that order.
[24] Further, the applicant’s evidence includes a history of his relationship with the respondent, including criticisms of the respondent’s former partner. None of this conduct-based evidence is relevant and such evidence has no place in a proceeding to vary child support.
[25] It is appropriate to consider whether a change in circumstances has occurred subsequent to McArthur J.’s final order sufficient to justify either a rescission of all or part of the arrears, or whether there should be a reduction of the arrears payments from $500 per month to $200 per month as sought by the applicant.
[26] The applicant’s financial disclosure is not complete. There are missing income tax returns and notices of assessment. However, I am able to decide this application based on the evidentiary record, including the financial disclosure that has been made.
[27] In 2018, being the year that the final order was made, the applicant’s employment income (he works at Twin City Painting (1979) Limited in Dartmouth, Nova Scotia), was $48,044 according to his 2018 T4.
[28] As part of his application, the applicant filed a letter from his employer, Twin City Painting, dated February 3, 2020, estimating the applicant’s projected income for 2020 to be $49,438.
[29] The applicant failed to provide income disclosure for 2019. However, there is no reason to believe that in 2019 the applicant’s income from Twin City Painting would have been materially different than in 2018 and his projected income in 2020. An adverse inference is drawn against the applicant for failure to provide 2019 income disclosure.
[30] I find that the applicant’s income in 2018, at the time of the final order, was $48,044 and that his income thereafter has not decreased. Further, the applicant offers no evidence, nor credible explanation, as to why the quantum of arrears should be reduced or why the monthly arrears payments should be lower. Also, there is nothing unusual about the applicant’s expenses as set out in his material.
[31] Despite maintaining an income over $48,000 since the date of the final order, the applicant has ignored his obligation to pay the arrears as ordered.
[32] As a type of “litmus test”, it is instructive to note that a child support payor with two children and an income of $48,000 would have a child support obligation of $692 per month pursuant to the Nova Scotia tables.
[33] The applicant appends a printout of the Maintenance Enforcement Program of Nova Scotia for the period of January 11, 2017 to October 29, 2019. That printout shows that for the period commencing August 1, 2018 (being the date of the final order) to October 1, 2019, that the applicant has paid only $1,537.50 towards the arrears, whereas the amount that should have been paid during that time period at the rate of $500 per month was $7,500. Therefore, the arrears balance as of October 29, 2019 was $22,709.60.
[34] I find that the applicant has failed to establish a change in circumstances, whether material or otherwise, to justify any variation of the final order of McArthur J.
ORDER
[35] I make the following final order:
The applicant’s support variation application filed pursuant to the Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13 is dismissed without costs.
The clerk forthwith shall forward a copy of the reasons for judgment and a certified copy of the order to the respondent by regular mail at the respondent’s last known address, and to the designated authority.
“Justice Victor Mitrow” Justice Victor Mitrow
Released: March 19, 2021
Cromwell v. Brine, 2021 ONSC 2019
COURT FILE NO.: F416/95-06 DATE: 20210319
ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT BETWEEN: Blake Reid Cromwell Applicant - and - Terry Lynn Brine Respondent REASONS FOR JUDGMENT MITROW J.
Released: March 19, 2021
[1] This amended citation corrects an error in the citation contained in the original judgment.