COURT FILE NO.: FC687/20
DATE: December 7, 2022
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: Natalie Kenny, Applicant AND: Wayne Robert Clay, Respondent
BEFORE: SAH J.
HEARD: In writing
ENDORSEMENT
Overview
[1] The applicant/recipient, Natalie Kenny, seeks to confirm and enforce a provisional child support order made in Bury St Edmunds, England, a reciprocating jurisdiction, pursuant to s. 17 of the Ontario Interjurisdictional Support Orders Act, S.O. 2002, c. 13 ("ISOA").
[2] On January 22, 2020, the Family Court sitting at Sheffield Magistrates Court made a provisional order requiring Wayne Robert Clay ("respondent/payor") to pay Natalie Kenny ("applicant/recipient") £125 per week per child in respect of Katie May Clay, born July 7, 2004, and Gemma Louise Clay, born April 2, 2008, from August 5, 2019, until each child reaches 17 years of age (the "UK Provisional Order").
[3] The Interjurisdictional Support Orders unit of the Family Responsibility Office in Ontario received a copy of the U.K. Provisional Order on or around July 31, 2020.
[4] The ISOA applies to the registration for enforcement in Ontario of orders made in reciprocating jurisdictions when one party lives in Ontario and the other party lives in a reciprocating jurisdiction.
[5] The United Kingdom is a reciprocating jurisdiction and the applicant/recipient lives there. The respondent/payor lives in London, Ontario, Canada.
[6] The request came before me in chambers on November 18, 2022. No explanation was provided in the record of this delay.
[7] I must determine whether to confirm the U.K. Provisional Order.
Statutory Framework
[8] The following statutory pathway applies.
[9] Rule 37 of the Family Law Rules, O. Reg. 114/99 ("Rules"), addresses proceedings under the ISOA. Rule 37(7) requires an application to be dealt with based on written material without the need of the parties or their lawyers having to appear. The respondent/payor in this case may request an oral hearing by filing a form 14B motion within 30 days of being served with the notice of hearing: see r. 37(8). The court may order an oral hearing under r. 37(9).
[10] Under r. 37(4), the respondent/payor was required to file, within 30 days of service of the notice of hearing, an answer in Form L under the Ontario general regulation, a form 14A affidavit setting out evidence on which he relies, and a financial statement in Form I under the Ontario general regulation.
[11] Section 13, para. 1 of the ISOA sets out that in determining a child's entitlement to support, the Ontario court shall first apply Ontario law, but if the child is not entitled to support under Ontario law, the Ontario court shall apply the law of the jurisdiction in which the child is habitually resident.
[12] Section 13, para. 3 of the ISOA sets out that if entitlement to child support is established, the Ontario court shall apply Ontario law in determining the amount of support for the claimant.
[13] Section 14 of the ISOA sets out the types of orders the court can make; they include:
(a) a support order;
(b) a temporary support order and adjourn the hearing to a specified date;
(c) adjourn the hearing to a specified date without making a temporary support order; or,
(d) refuse to make a support order.
[14] Section 14 (2) also provides the Ontario court the ability to make a retroactive support order.
[15] Section 31 of the Family Law Act, R.S.O. 1990, c. F.3 ("FLA"), states that every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her eligible children.
[16] Subsection 31 (11) of the FLA requires a court making an order for child support to do so in accordance with the Child Support Guidelines, O. Reg 391/97 ("Guidelines").
[17] The determination of retroactive support requires a detailed analysis set out in Colucci v. Colucci, 2021 SCC 24, with application to D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, Michel v. Graydon, 2020 SCC 25.
Analysis
[18] The U.K. Provisional Order requires the respondent/payor to pay support retroactive to August 5, 2019. The termination date of child support is when each child reaches 17 years of age. The eldest child is now 18 years old, the youngest 14 years old.
[19] The payor/respondent swore an affidavit dated September 24, 2020. Exhibits were not attached although he did enclose various documents in response to the U.K. Provisional Order and the material he received with same.
[20] The respondent/payor also submitted a financial statement (Form K) completed September 26, 2020. This document attaches his Income Tax Returns for 2017 and 2019, and a partial return for 2018.
[21] It is not clear whether the applicant/recipient received the respondent/payor's affidavit and financial information.
[22] The respondent/payor did not file a Respondent's Response to Application – Form L.
[23] New forms came into effect on January 1, 2021. The Financial Information – Form I is fairly detailed, and the information contained therein will assist with the determination required of this court, including retroactive child support.
[24] A Response to Application (Form L), submitted by the respondent/payor, would assist in determining the respondent/payor's position on the issue of retroactive and ongoing support.
[25] On the record before me, there is insufficient evidence to determine whether the U.K. Provisional Order should be confirmed. I cannot undertake the analysis required to apply Ontario law.
[26] The framework that should be applied in applications for retroactive support is as follows:
a) The recipient must meet the threshold of establishing a past material change in circumstances. While the onus is on the recipient to show a material increase in income, any failure by the payor to disclose relevant financial information allows the court to impute income, strike pleadings, draw adverse inferences, and award costs. There is no need for the recipient to make multiple court applications for disclosure before a court has these powers.
b) Once a material change in circumstances is established, a presumption arises in favour of retroactively increasing child support to the date the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to vary. In the increase context, because of informational asymmetry, effective notice requires only that the recipient broached the subject of an increase with the payor.
c) Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice.
d) The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors continue to guide this exercise of discretion, as described in Michel. If the payor has failed to disclose a material increase in income, that failure qualifies as blameworthy conduct and the date of retroactivity will generally be the date of the increase in income.
e) Once the court has determined that support should be retroactively increased to a particular date, the increase must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.
See: Colucci v. Colucci, 2021 SCC 24, para. 114.
[27] Although the test in Colucci deals with requests to retroactively increase the support contained in an order or an agreement, this framework also applies for an original request for retroactive support, subject to a few variations.
[28] Here, step a) above, which necessitates a threshold finding of a material change in circumstances, is not required.
[29] The Supreme Court in D.B.S. v. S.R.G, 2006 SCC 37, [2006] 2 SCR 231 set out factors to consider when determining retroactive applications. They can be summarized as follows:
a) Whether the recipient spouse has provided a reasonable excuse for his or her delay in applying for support.
b) The conduct of the payor parent.
c) The circumstances of the child.
d) The hardship that the retroactive award may entail.
[30] The parties are directed to focus their submissions on sub-paras. a) to d) above and should address whether the applicant/recipient gave the respondent/payor notice of her intention to seek support. If so, when and how? Please provide proof where available. This evidence speaks to the retroactive support claimed.
[31] The delay in the progression of this file is disappointing and unacceptable. The primary objective of the Rules requires the court to deal with cases justly, which includes:
• Ensuring procedural fairness to all;
• Saving expense and time;
• Dealing with the case in ways that is appropriate to its importance and complexity; and
• Giving appropriate court resources to a case while considering resources that need to be given to other cases.
See: r. 2(2)-2(3).
[32] The ISO process was designed to streamline the way support orders in one jurisdiction could be enforceable in another. There has been no saving of time in this case. This has been to the detriment of the parties, and possibly the children.
[33] To ensure procedural fairness to both parties, an order shall issue requiring parties to file further evidence. This additional evidence will also serve to assist the court to determine the issues.
[34] To ensure that this matter is dealt with expeditiously, timelines for the filing of material shall be set.
[35] An order shall issue as follows:
The respondent/payor shall forthwith complete a Respondent's Response to Application – Form L and Financial Information – Form I (see attached). A copy of these documents shall be served on the applicant/recipient on or before January 16, 2023.
The respondent/payor shall provide Income Tax Returns and Notices of Assessment for the years 2018, 2020 and 2021, and YTD income information for 2022.
In his response, the respondent/payor shall address the issue of retroactive support.
If the applicant/recipient wishes to provide an affidavit in reply, including exhibits as evidence, she is to serve and file her reply affidavit on or before February 3, 2023. Such reply affidavit should speak to the issue of the retroactive support claimed.
When this matter returns before this court, it shall determine, subject to the discretion of the presiding judge:
a) when should the child support payments commence?
b) what amount of child support should the respondent/payor pay pursuant to the Guidelines for each year that the court determines that support is payable?
c) When should the child support payments terminate?
[36] The clerk shall forward this endorsement and a certified copy of the issued order to the Ontario Interjurisdictional Support Orders Unit and to the respondent/payor.
[37] I am not seized.
"Justice K. Sah"
The Honourable Madam Justice K. Sah
Released: December 7, 2022