COURT FILE NO.: FS-17-00021692-0000
DATE: 20231212
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SHAWN NODDER
Applicant
– and –
KATHERINE WASSERMAN
Respondent
Gary S. Joseph, for the Applicant
Lisa Allegro, for the Respondent
HEARD September 12, 2023
VELLA J.
REASONS ON MOTION TO ENFORCE A SEPARATION AGREEMENT
[1] The Respondent Mother seeks an order enforcing the child support and s. 7 expenses provisions of a separation agreement, including an order for security, and an assessment of a monetary penalty payable to her against the Applicant Father, for each day he does not pay the full amount of the arrears.
[2] The Applicant, in turn, brought a cross-motion challenging the jurisdiction of this court on the ground that the separation agreement was filed with the Ontario Court of Justice (OCJ) and thus is an order of the OCJ over which this court has no jurisdiction.
[3] As an aside, the Applicant initially also challenged the jurisdiction of this court to interfere with the exclusive enforcement jurisdiction of the Director of the Family Responsibility Office (FRO). However, unbeknownst to him at the time, the Respondent withdrew from FRO, and therefore both parties agree this issue is moot.
Background Facts
[4] The following facts are not disputed and inform the analysis that follows.
[5] After 6 years of acrimonious litigation, and on the eve of trial, the parties settled all issues and signed a Separation Agreement on February 6, 2023.
[6] The Separation Agreement was filed with the OCJ on August 2, 2023 with the requisite affidavit, by the Respondent, with the result that the Separation Agreement became enforceable as an order of the OCJ (the “OCJ Order”) pursuant to s. 35(2) of the Family Law Act (FLA).
[7] It is undisputed that the Applicant is in arrears of child support and s. 7 expenses under the terms of the Separation Agreement. The undisputed amount of arrears of s. 7 expenses as of September 11, 2023 is: $35,717.08 for one child and $2,372.51 for the other child. In addition, child support arrears for an underpayment in February 2023 in the sum of $4,186.86 is owing. In addition, there are substantial anticipated s. 7 expenses, which the Respondent is concerned will not be forthcoming.
[8] Other than the above arrears, the Applicant has been paying the agreed upon child support of $4,000 per month.
[9] Under the Separation Agreement, the Applicant agreed to pay the global amount of $725,000 in satisfaction of all property claims, retroactive child and spousal support and prospective spousal support. Of this amount, $250,000 was payable within 30 days of the fully executed Separation Agreement and $475,000 on the earlier of September 20, 2023 or the closing of the sale of the Applicant’s house known municipally as 9 Duggan Ave., Toronto, Ontario (the “House”).
[10] The Applicant has indicated that he will be selling his House in order to meet various obligations under the Separation Agreement.
[11] On August 17, 2023 I granted a temporary CPL on a without notice basis against the Applicant’s house and ordered that the matter be returned on August 31, 2023, on notice, before me or another judge if I was not available.
[12] The Applicant obtained a life insurance policy in the sum of $2,000,000 naming the Mother and two children as beneficiaries, and the Mother as trustee, dated June 23, 2016 and remains in force as of August 31, 2023.
[13] On September 4, 2023, the Applicant provided a signed copy of a $475,000 charge in the Respondent’s favour to be registered on title to the Applicant’s house. The charge has been registered on title to the Applicant’s House, and the CPL was discharged and removed from title.
[14] On September 5, 2023, unbeknownst to the Applicant until this motion was brought, the Respondent withdrew from FRO.
Does the Superior Court of Justice have Jurisdiction to Enforce an Order regarding Child Support and s. 7 Expenses made by the Ontario Court of Justice?
[15] This issue arises, in part, because of the anomaly left by the Legislature by having designated certain regions in Ontario within the jurisdiction of the Family Court of the Superior Court of Justice, and other regions, including Toronto, to maintain the OCJ and Superior Court of Justice with respective jurisdictions to hear family matters under the FLA and other family law legislation (such as the Children’s Law Reform Act).
[16] The matter is further complicated by the fact that the Respondent filed the Separation Agreement with the OCJ, but now wishes to pursue enforcement related remedies before the Superior Court of Justice.
[17] This specific issue has yet to be determined by our Court of Appeal.
[18] For the reasons that follow, the Applicant’s motion is granted, and this proceeding will be transferred to the OCJ pursuant to s. 110 of the Courts of Justice Act.
[19] In light of my determination, I will not rule on the merits of the Respondent’s enforcement motion, and my decision is without prejudice to the Respondent’s right to renew her motion before the OCJ.
The Parties’ Respective Positions
[20] The Applicant’s position is that the Respondent’s motion is to enforce or vary the final Order embodying the Separation Agreement made by the OCJ and the Superior Court of Justice has no jurisdiction to enforce or vary an order of the OCJ.
[21] The Respondent’s position is that she is not seeking to vary the terms of the OCJ Order but is in fact seeking to enforce that order through the Superior Court of Justice. The Respondent alleges, and this is not disputed, that the Applicant has breached certain terms of the Separation Agreement and, in particular, the s. 7 expenses provision.
[22] She is seeking the following orders from the Superior Court of Justice, as set out in her Amended Notice of Motion:
a. An Order requiring the Applicant to pay the Respondent within 7 days $38,089.83 on account of s. 7 arrears;
b. An Order requiring the Applicant to pay within 30 days $41,809.43 USD (approximately $56,082.98 CAD) and $8,500 CAD into Court or a solicitor’s trust account and these funds shall be paid to the Respondent upon proof of payment of prospective section 7 expenses for the children (and the relief lists the items to be covered);
c. An Order requiring the Applicant to pay within 30 days $84,000 to the Respondent or into Court or a solicitor’s trust account, to be paid to the Respondent in $4,000 installments on the first of every month, commencing October 1, 2023 until the total amount is depleted (on account of prospective child support). Once the lump sum of $88,000 is made by the Applicant in full, the Respondent shall return to the Applicant any outstanding post-dated cheques in her possession from him for future child support;
d. An Order that within 7 days the Applicant shall pay the Respondent $4,184.84 on account of his child support arrears for February 2023;
e. An Order that should the Applicant fail to pay the amounts above, he shall receive a daily monetary penalty of $1,000 until payments are made;
f. An Order that within 7 days the Applicant shall provide the Respondent with a copy of his life insurance policy naming her as the irrevocable beneficiary of $1 million of the proceeds of the policy (this latter request is moot, as the Applicant voluntarily complied with this demand by the time of this hearing).
Statutory Regime
[23] Section 35 of the FLA sets out the statutory framework for this analysis:
35(1) A person who is a party to a domestic contact may file the contract with the clerk of the Ontario Court of Justice or of the Family Court of the Superior Court of Justice together with the person’s affidavit stating that the contract is in effect and has not been set aside or varied by a court.
35(2) A provision for support or maintenance contained in a contract that is filed in this manner,
(a) may be enforced,
as if it were an order of the court where it is filed.
Analysis
[24] The Applicant relies on a number of cases in which the Superior Court of Justice has ruled that it does not have jurisdiction to vary a final order made by the OCJ as the subject separation agreement constitutes a final order of that court through the statutory mechanism provided by s. 35 of the FLA, and the OCJ has affirmed its exclusive jurisdiction to vary a s. 35 FLA order: Ridley v. DeRose, 2015 ONSC 5635; Houle v. Trottier, 2012 ONSC 786, rev’d on different grounds, 2012 ONSC 6661 (Divisional Court); Doherty-Mulder v. Mrowietz, (2003), 43 R.F.L. (5th) 313 (Ont. S.C.), 2003 CanLII 5374; Maves v. Whitsitt, 11 R.F.L. (7th) 399, 2011 CarswellOnt 11869 (Ont. S.C.); Sadowski v. Sadowski, 2011 ONCJ 403; Gow v. Gow (1989), 1989 CanLII 4267 (ON SC), 67 O.R. (2d) 443 (H.C.J.); Stafichuk v. Iaboni, 2012 ONCJ 785.
[25] In Maves, the Divisional Court overturned the motion judge’s determination that the Superior Court of Justice lacked jurisdiction to hear an application for corollary relief under the Divorce Act (in the face of a separation agreement that was filed with the OCJ under s. 35 of the FLA) on the basis that the application was not to vary the OCJ order but was a stand-alone independent application[^1]. The Divisional Court stated, at paras 10 - 13:
[10] The appellant in this case does have the option of proceeding in the provincial court, seeking a variation in that court’s child support order under s. 37 of the Family Law Act. However, she is not restricted to that one option. She has the alternative option of initiating a corollary relief proceeding under s. 15.1 of the Divorce Act. That request for relief can only be advanced in the Superior Court of Justice.
[11] The hearing judge correctly concluded on the authorities she cites at paragraphs 14 through 18 of her reasons that the Superior Court of Justice has no jurisdiction to vary an order made in the Ontario Court of Justice under the Family Law Act. A request to change the order already granted in the Ontario Court of Justice can only be advanced in that court…..
[12] In a similar vein, it is irrelevant that the Superior Court of Justice has no jurisdiction to vary the terms of the Separation Agreement filed with the Ontario Court of Justice under s. 35 of the Family Law Act. The appellant in this case is not seeking a variation of the separation agreement or a variation of the order for child support under the Family Law Act. She is asserting a claim for corollary relief under the Divorce Act.
[13] An order under the Divorce Act does not vary the order under the provincial legislation. Rather it supplants and supersedes the order under the provincial statute. See Pantry vs Pantry 1986 CanLII 2537 (ON CA), [1986] O.J. No., 2347 (Ont. C.A.) at para. 7. (emphasis added)
[26] To the extent that the Respondent’s authority, Ethier v. Ethier, 2008 CanLII 44707 (ON SC), 59 R.F.L. (6th) 430, 2008 CarswellOnt 5106, stands for the proposition that the Superior Court of Justice has jurisdiction to “order child support different from the separation agreement” where the separation agreement was filed pursuant to s. 35 of the FLA with the OCJ and enforceable, in that case, through the Family Responsibility Office, I respectively decline to follow this decision which was released prior to the Divisional Court decision rendered in Houle.
[27] The other decision relied upon by the Respondent is Linett v. Linett, 2006 CanLII 12956 (ON CA), 27 R.F.L. (6th) 247, 2006 CarswellOnt 2424 (ONCA). However, that case concerns whether the Superior Court of Justice could enforce a separation agreement by way of a motion versus an application. It is not about the competing jurisdiction between the OCJ and SCJ. There was no dispute about the jurisdiction of the SCJ to enforce the separation agreement and no competing OCJ order under s. 35 of the FLA. The focus was on the proper procedure to be followed before the Superior Court of Justice to enforce the terms of a separation agreement.
[28] The Court of Appeal did note, however, that proceedings for the enforcement of separation agreements is determined pursuant to the Courts of Justice Act or the Rules of Civil Procedure, pursuant to rule 1(7) of the Family Law Rules. This is because the Family Law Rules do not explicitly address the procedure for enforcement of separation agreements.
[29] While, in my view, it is sufficient for the disposition of this motion that the Superior Court of Justice lacks jurisdiction to vary or enforce a final Order of the OCJ arising from s. 35 of the FLA, I will proceed to consider whether the Superior Court of Justice has enforcement remedies which are greater than the OCJ to determine whether the Respondent will be restricted in her range of remedies, should this matter be transferred to the OCJ, and in light of the Divisional Court decision rendered in Houle. In particular, the Respondent has requested that a remedy in the form of a monetary penalty payable to her be imposed on the Applicant if he fails to make the payments required under the Separation Agreement within a certain timeline.
[30] While the OCJ does not have inherent jurisdiction, it has the jurisdiction to control its own process that includes any powers that are reasonably necessary to accomplish its mandate which, in turn, is derived from statute. Most relevant to this motion, this includes the procedures under the Family Law Rules.
[31] To date the Superior Court of Justice has awarded monetary penalties against parties who are in breach of family court orders.
[32] In each of Granofsky v. Lambersky, 2019 ONSC 3251, and Di Poce v. Di Poce, 2022 ONSC 2099, the courts relied on Rules 1(8) which provides that if a person fails to obey a court order, “the court may deal with that person’s breach by making any order that it considers necessary for a just determination of the matter. Rule 1(8) then sets out a non-exhaustive list of enforcement remedies, including, on motion, contempt.
[33] While the list of enforcement remedies do not expressly include the assessment of a monetary penalty for non-compliance with a court order (unless by motion for contempt which does provide for a monetary penalty), the court in these two decisions have in fact added a monetary penalty as part of the court order enforcement arsenal, without the need to bring a motion for contempt of court.
[34] However, in Altman v. Altman, 2022 ONSC 4479, Faieta J. declined to impose a monetary penalty for breach of a family court order on the basis that ordering a monetary penalty payable to a party is expressly dealt with by Rule 31(5)(c) of the Family Law Rules as a remedy for contempt. As noted by the Court of Appeal in Bouchard v. Sgovio, 2021 ONCA 709, without deciding the issue, there are limits to the enforcement remedies a court can impose for non-compliance with court orders under r. 1(8) short of contempt. Contempt, along with the sanctions that can be assessed for contempt, must be proven on the evidentiary standard of beyond a reasonable doubt. Conversely, the remedies for non-compliance set out in Rule 1(8) must be proven on the lower threshold evidentiary standard of a balance of probabilities.
[35] I need not decide whether the Respondent will be successful in pursuing her remedy of a monetary penalty under r. 1(8). What is important is that the OCJ has jurisdiction to hear both an enforcement motion and a contempt motion, and these procedures and remedies are expressly addressed by r. 1(8) and r. 31(5) of the Family Law Rules. In other words, she will have the same range of enforcement remedies for breach of court order whether she is before the OCJ or the Superior Court of Justice.
[36] As the Family Law Rules apply equally to the Family Court of the Superior Court of Justice, the Superior Court of Justice, and the OCJ (r. 1(2)), and the OCJ has jurisdiction to control its own process, the Respondent can seek the same enforcement remedies and contempt remedies before any of the three courts in Ontario for all family cases under the FLA, except Part V (dependants’ claim for damages).
[37] Accordingly, the Respondent will not be restricted in the range of enforcement and/or contempt remedies she seeks or may seek before the OCJ.
Disposition and Costs
[38] The Applicant’s motion is granted. This matter must proceed before the OCJ. An order transferring this application to the OCJ pursuant to s. 110 of the Courts of Justice Act will issue. This is the most expeditious, cost efficient, and just way of dealing this this matter.
[39] The Respondent’s motion is dismissed, but without prejudice to her renewing her motion before the OCJ.
[40] If costs cannot be agreed upon, the Applicant will provide his cost outline and written submissions by December 18, 2023. The Respondent will provide her cost outline and written submissions by December 27, 2023 (accounting for statutory holidays). The written submissions may not exceed three double spaced pages from each party. The documents should be uploaded to CaseLines and filed through the JSO Portal to my attention.
Justice S. Vella
Released: December 12, 2023
COURT FILE NO.: FS-17-00021692-0000
DATE: 20231212
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SHAWN NODDER
Applicant
– and –
KATHERINE WASSERMAN
Respondent
REASONS FOR DECISION
Vella J.
Released: December 12, 2023
[^1]: The Divorce Act has no application to the case at bar, since the Applicant and Respondent were never married.