Court File and Parties
COURT FILE NO.: FC-12-945-5
DATE: 2021-06-09
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Gino Sauve, Applicant
-and-
Karin Watson, Respondent
BEFORE: Justice P MacEachern
COUNSEL: Jeffrey Behrendt, for the Applicant
Pamela Barron, for the Respondent
HEARD: In writing
ENDORSEMENT
[1] This endorsement is further to my endorsement of March 30, 2021, and April 6, 2021.
[2] On March 30, 2021, the parties agreed to terms for a consent order within this Motion to Change. I granted an order in accordance with the parties' consent to be signed by me upon confirmation of the applicable legislation. There was significant uncertainty about whether the order was being made under the Divorce Act or under provincial legislation (Family Law Act and Children's Law Reform Act) that needed to be clarified before I would sign the order.
[3] The new form for general family law orders under the Family Law Rules (Form 25) that came into effect on March 1, 2021, requires attention to the specific legislation under which an order is made. The new Form 25 requires the legislation under which the order is made be specified on the face of the order.
[4] The problems that arise when orders do not specify the applicable legislation on their face are ably demonstrated by the difficulties encountered in the case at hand. This is especially so when dealing with previous consent orders between spouses who were married that concern support or parenting where federal and provincial jurisdiction may overlap.
[5] The matter before the court is a Motion to Change child support and parenting terms of a final Order dated October 25, 2017 (“the 2017 Final Order”). In this Motion to Change, the parties were married but are now divorced. The 2017 Final Order was made on consent and does not specify the legislation under which it is made. The 2017 Final Order is itself a variation of a previous consent order (“the 2013 Final Order”) that also does not specify the legislation under which it is made.
[6] Although the parties are divorced, a copy of the Divorce Order was not before me on March 30, 2021. Neither was a complete copy of the previous orders and previous pleadings. This was because, in part, the court is hearing matters remotely due to the Covid-19 pandemic. Therefore, I did not have easy access to the paper court file. Parties to Motions to Change should, however, strive to file within the Motion to Change itself, copies of all previous final orders, including the Divorce Order if one exists.
[7] Identifying the applicable legislation in this Motion to Change required reviewing the current pleadings, the previous orders made between the parties, and the pleadings that underlie the previous orders. Counsel were very helpful in providing the historical court documents needed to determine this issue and offered thoughtful submissions. I thank them for their assistance.
[8] Having reviewed the historical court documents, I conclude that the applicable legislation under which the consent orders are made are the Family Law Act and the Children's Law Reform Act. I have signed the order with this legislation specified on its face. This endorsement explains my reasons for this conclusion.
Determining What Legislation Applies
[9] The parties were married in 2000 and separated in 2012. After they separated, Mr. Sauve commenced an application for divorce and corollary relief under the Divorce Act. He also sought child support and parenting under the Family Law Act and Children's Law Reform.
[10] Under section 36 of the Family Law Act and section 27 of the Children's Law Reform Act, the claims for support and parenting under the Family Law Act and Children's Law Reform Act were stayed, unless the court ordered otherwise, due to the claims under the Divorce Act.
[11] On May 28, 2013, the parties signed a Separation Agreement resolving all issues arising from their marriage and separation, including parenting and child support.
[12] On June 26, 2013, a Final Order was granted on consent that incorporated the Separation Agreement's parenting and child support terms. The 2013 Final Order does not specify under what legislation it is made. However, it incorporates by reference the definition of “child” under the Divorce Act and refers to the Federal Child Support Guidelines. The 2013 Final Order but does not include a divorce. The Divorce Order was not granted until September 16, 2014, and it is silent concerning corollary relief.
[13] Claims for corollary relief may be made at the same time as the divorce or after (Divorce Act ss. 3, 4). A Divorce Order that is silent on corollary relief does not bar a subsequent application for corollary relief. But a final order for support and parenting cannot be made as corollary relief under the Divorce Act unless it is made at the same time as the Divorce Order, or after the Divorce is granted.
[14] Given this, I must interpret the 2013 Final Order as providing for parenting under the Children's Law Reform Act and child support under the Family Law Act. At the time, the parties had settled the issues of parenting and child support on a final basis and sought a final order, but they were not in a position, for whatever reason, to obtain a divorce. The only way for a final parenting and child support order to be granted before a Divorce Order was under provincial legislation.
[15] To the extent that the 2013 Final Order does not expressly state that leave is granted to make these orders under provincial legislation despite the claim for a divorce being outstanding, I order that the 2013 Final Order be amended, nunc pro tunc, to grant this leave. This is what would have been done when the 2013 Final Order was made had the issue of jurisdiction been brought to the court's attention at that time.
[16] I also amend the 2013 Final Order, nunc pro tunc, to replace the references to the "Federal Child Support Guidelines" with the Child Support Guidelines, O.Reg. 391/97 as am.
[17] Given the above, the 2013 Final Order provides for child support under the Family Law Act and parenting under the Children's Law Reform Act.
[18] The September 16, 2014 Divorce Order is silent concerning corollary relief and, therefore, the 2013 Final Order for child support and parenting under provincial legislation continued after the divorce was granted[^1].
[19] The 2017 Final Order changed the 2013 Final Order, and therefore continues to provide for child support under the Family Law Act and parenting under the Children's Law Reform Act. Although the parties could have commenced an originating application for corollary relief under the Divorce Act after the divorce was granted in 2014, neither has done so. The orders made under the provincial legislation continue.
[20] My finding that provincial legislation applies is consistent with the parties filing their agreements amending child support under section 35 of the Family Law Act in 2019 and 2020. Section 35(2) of the Family Law Act provides that a support agreement filed with the court becomes enforceable and variable as an order under the Family Law Act. These filing would not be effective if the previous orders for child support were made under the Divorce Act because an order for corollary relief under the Divorce Act can only be varied under the Divorce Act.
Justice P MacEachern
Date: June 9, 2021
COURT FILE NO.: FC-12-945-5
DATE: 2021-06-09
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Gino Sauve, Applicant
-and-
Karin Watson, Respondent
BEFORE: Justice P MacEachern
COUNSEL: Jeffrey Behrendt, for the Applicant
Pamela Barron, for the Respondent
ENDORSEMENT
Justice P MacEachern
Released: June 9, 2021
[^1]: Family Law Act, R.S.O. 1990, c.F.3, as am, section 36(1)