Dowinski v. Gagne, 2012 ONCJ 738

Sault Ste. Marie COURT FILE No. 116/2009-0001 DATE: 2012-11-21 Citation: Dowinski v. Gagne , 2012 ONCJ 738 ONTARIO COURT OF JUSTICE IN THE MATTER OF the Interjurisdictional Support Orders Act S.O. 2002, c. 13 and the Family Law Act, R.S.O. 1990, c.

F.3 BETWEEN: ) ) JEAN-MARIO PAUL DOWINSKI ) Self represented ) Applicant ) ) — AND — ) ) YVETTE RENI GAGNE ) Self represented ) Respondent ) ) ) ) ) HEARD: November 19, 2012 kukurin J. [ 1 ] What follows are Reasons for the orders made this day in this Interjurisdictional Support Orders Act ( ISO Act ) application brought by the Applicant, [1] who resides in Winnipeg, Manitoba, against the Respondent, who resides in Sault Ste. Marie, Ontario. The Respondent is the mother of two children, Ryan (age 6) and Cheyenne (age 13). The Applicant is the biological father of Ryan.

He is not the biological father of Cheyenne but acknowledges that he stood in position of parent to Cheyenne when he cohabited with the Respondent mother. [ 2 ] This application was set for hearing before me this day. The Applicant father did not appear. It was not anticipated that he would. The mother also did not attend. However, her daughter apparently contacted Legal Aid Duty Counsel to advise that the mother was sick TODAY and was requesting an adjournment.

In these circumstances, and after having reviewed the documents filed, I effectively converted the hearing today into a case conference with both parties absent. These Reasons are set out for the parties, as well as for the designated authority under the ISO Act in Ontario, and for the analogous Manitoba authority, as a function of the judicial case management and gatekeeping responsibility of this court. [ 3 ] The application has several claims.

The first is for an order for a Child Support Guideline (CSG) table amount of child support to be paid by the mother to the father for the child Ryan commencing Sept 1, 2009.

Specifically, he asks that she be ordered to pay $156 per month based on an annual income which he asks the court to impute to her in the amount of $18,000. [ 4 ] His application also has several other claims which seek variations and/or terminations of existing orders which have been made by courts in British Columbia, Ontario and Manitoba in proceedings between himself and the respondent. [ 5 ] It is worthwhile to set out in greater detail what he seems to be asking of the court in these “variation” claims as these details create the context for these Reasons. [ 6 ] The existing orders between these parties are: (

a) consent order of British Columbia Provincial Court, stated to have been made “as agreed to by the parties”, dated January 11, 2008 requiring the father to pay to the mother as child support for Ryan, the sum of $341 per month commencing September 18, 2007 based on his annual income of $36,822; (

b) consent order of Gregson J. of the Ontario Court of Justice dated Sept 2, 2009 granting sole custody of both Ryan and Cheyenne to the mother, granting to the father reasonable interim access to Cheyenne, and access to Ryan for the entire school year from September 2009 to end of school in June 2010; (

c) consent order of Buttazzoni J. of the Ontario Court of Justice dated October 19, 2009 requiring the father to pay to the mother as child support for the child Cheyenne, the sum of $255 per month commencing September 1, 2009, based on his 209 annual income of $28,892; (

d) order of the Little J. of the Manitoba Queens Bench (Family Division) dated June 13, 2011, made on default in appearance of the mother, providing (

i) that, pursuant to the Child Custody Enforcement Act ( Manitoba), the provisions of the Ontario court order of Gregson J. dated September 2, 2009 which granted custody of Ryan to the mother is stayed, and not to be enforced within the province of Manitoba without further order of the Manitoba Court of Queen’s Bench (Family Division), and

(ii) that the father have sole custody of the child Ryan with access to Ryan by the mother subject to several conditions. [ 7 ] The father asks in his ISO Act application that the orders requiring him to pay support for Ryan and for Cheyenne be terminated (ie reduced to nil) effective Sept 1, 2009. He also asks that any support arrears that may be owing under any support orders be “fixed” at nil as of Sept 30, 2011.

In the alternative, he asks that the amount of his support order relating to Cheyenne be reduced as of Sept 1, 2009 to an amount on which the court may decide. [ 8 ] The factual basis for the claims in this ISO Act application is primarily the continued residence of the child Ryan with his father in Winnipeg since Sept 2009 to date, combined with the fact that the father now has a Manitoba custody order for Ryan .

A secondary basis appears to be the change in financial circumstances of the father who lost his job, was thereafter temporarily receiving employment insurance benefits, and is presently in receipt of social assistance benefits in Manitoba, putting his annual income below the CSG threshold for paying any child support. According to his evidence, the mother is also receiving social assistance benefits in Ontario. [ 9 ] The mother was served through the court’s office with a copy of the father’s ISO Act application, with its supporting documentation, together with a Notice of Hearing.

This Notice provides in bold face print that the mother has only thirty days from date of service upon her to file an Answer if she wishes to oppose any claim made. It also advises her that she must file a financial statement within the same time, whether she intends to oppose any claim or not. Moreover, the Notice advises that the court would consider on the hearing date only the written materials filed, unless the court ordered otherwise.

The mother apparently attended on the first date that the application was returnable and asked for a formal hearing as she intended to present evidence, presumably viva voce evidence. As the matter was adjourned to this date, and time was set aside for a hearing, I infer that the judge presiding decided that the hearing would proceed on a basis other than just on written material. [ 10 ] It was just as well that the mother could not attend. The hearing, had it been held, would have been problematic and ineffectual mainly because of deficiencies in the court record.

This is hardly unexpected where both parties are self represented and one of them is not even from this province. Problems relating to the Applicant and Application: [ 11 ] The ISO application (at Tab 2) is a multiple form document. Form A is designed to set out the applicant’s claims, the legal authority relied upon, any case history involved, the family history, and to identify the documents that are attached to and form a part of the application. In this case, the father indicates that a copy of the statute or legal authority of which he asks this court to take notice is attached. In fact it is not.

It is missing and not otherwise identified. The ISO Act contains a ‘Choice of Law Rules’ provision which sets out what law this court is to apply in determining entitlement [2] to child support, and in determining amount [3] of child support. For the former, it is the law of Manitoba. For the latter, it is the law of Ontario. Accordingly, the applicant father should forward to this court what Manitoba legislation he expects this court to rely upon, or at the very least, identify it. [4] [ 12 ] Also included as a “required” component of the Application is Identification Information in Form B.

This is missing entirely. I do not know if its contents are essential to the judicial determinations sought in this case or not. It should have been included. [ 13 ] In Form E, the applicant father asks that the amount of child support he seeks for Ryan be set using the child support guidelines or law of the jurisdiction where the respondent resides. This is Ontario. This corresponds to the choice of rules requirements of s.13 of the ISO Act . However, “law” includes not only statutory law [5] , but also the Rules of court that apply. In this case, those Rules are the Family Law Rules of the province of Ontario.

If these Rules apply to the determination of quantum of child support, they apply equally to the applicant father as they do to the respondent mother. This is of some significance as both parties have not complied with the procedural (Rules) requirements in this proceeding. [ 14 ] Form F is entitled “Request for Child Support – if Respondent does not provide financial statement”. In this Form, the father asks for an order of child support against the mother in the amount of $156 per month based on an annual income which he wishes the court to impute to her in the amount of $18,000.

He indicates that his evidence in support of this claim is included in this Form F. He does, in fact, make some statements relating to the Respondent in this Form F and attaches an internet website printout listing of labour market average incomes for a variety of occupations.

The statements in his Form F indicate • That the mother is receiving social assistance; he knows because she told him so. • That the mother has no special training, has been unable to maintain any employment for any significant period of time, but did work in a call centre in the past. • That he believes that the mother has an annual income of about nil. • That he believes that the mother has the ability to be gainfully employed.

Although this is not the occasion to judge or pre-judge the merits of a claim, it is, I believe, within the function of a case conference judge to point out some evidentiary issues that seem to be apparent on the evidence of the father himself. [ 15 ] Form G is entitled “Request for Child Support Order Different than Child Support Guidelines Table Amount”. In this Form, the father asks for an order that the mother pay child support to him for Ryan in the amount of nil based on her income of nil .

This is blatantly in contradiction of his claim in Form A and Form E that asks for table amount and specifies the dollar amount to be $156 per month. [ 16 ] Form K is entitled “Financial Statement” and is signed by the father. It is similar to the financial statement form used in Ontario. What is deficient in the father’s financial information are copies of his income tax returns and notices of assessment for 2008, 2009 and 2010, which he indicates are attached – but are, in fact, not included anywhere in his materials sent to this court. In addition, there is no tax return or notice of assessment for 2011.

The father’s claims are to fix his child support arrears at nil. I take this to be a

claim for retroactive variation. Moreover, because he is not specific about the basis for the retroactive variation he is seeking, nor the periods of time to which his variation claims relate, I assume that the variation he seeks dates back possibly to 2007. [6] He does not state the reason(

s) why the retroactive variation he seeks should be allowed with respect to the child Ryan prior to the time Ryan went to reside with him, and doesn’t state at all why retroactive variation for the child Cheyenne should be allowed. A common reason why such retroactive variation clams are brought is a reduction in annual income in past years. To establish this, the father must have some evidence of such past year incomes. Typically, these are in the form of tax returns and notices of assessment.

If this is the basis for his claim for termination and/or prospective variation, his more current tax return will also be required. [ 17 ] Form M is entitled “Evidence to Support Variation of a Support order”. In this Form, the father identifies four orders he wishes to vary. These are all of the ones described in paragraph [6] above. Two of these do not even deal with child support. He clearly wishes to change only child support provisions in this case. If he wishes to vary custody, then he cannot do so in an ISO Act proceeding.

In this Form M, the father indicates that the amount of his unpaid support as of Aug 17, 2011 is $10,393.32. He indicates that he attaches a copy of a statement of the maintenance/support enforcement program. It is not attached nor included in any of his materials filed with this court.

This statement is not only relevant but may well be necessary for the court to sort out which arrears relate to which order for which child and for what periods. [ 18 ] In Ontario, litigants wishing to vary a final support order must do so by Motion to Change. [7] A Motion to change a final support order must be filed with a financial statement. [8] Financial statements have certain required attachments without which, the court clerk is mandated to reject for filing. [9] [ 19 ] It is not only the Rules in this court that require the filing of these financial documents.

The Child Support Guidelines which apply in this case require virtually the same filings. [10] He has filed no income tax returns, no EI statements and no notices of assessment. [ 20 ] Finally, it is apparent from the evidence of the father that the mother is currently and has, in the past, been a recipient of public assistance in Ontario. It is an easy inference that she has more than likely assigned her support orders to Ontario Works, the body from which she is most probably receiving her social assistance benefits.

Under the Rules, service on an assignee of an application to vary a final support order is required. [11] Assignees can become involved in variation proceedings to the extent of their financial interests. [12] In this case, that may amount to something in excess of $10,000. There are consequences for failing to serve an assignee. [13] There is no proof of service of the ISO Act application on any assignee. There is no mention in the documents filed that there is or that there is not any assignment of either support order.

This court is not inclined to permit the father to ignore this service requirement which may, at some future date, result in a motion to set aside any variation order that may be made, and a resurrection of all of the present issues with the added complication of issues raised by an assignee. It would be far better to simply follow the rules and have all interested parties made aware of this present proceeding. Problems relating to Respondent and Response [ 21 ] There are equally serious problems that emanate from the Respondent mother in this ISO Act case.

If she wishes an oral hearing, she is required to file a motion asking for this. [14] Although the court may order an oral hearing on its own initiative, [15] the return of a respondent’s motion presents an opportunity to inquire into the nature of the intended response, to point out expectations of the court in terms of evidence and procedure, and to give any directions or make any orders necessary for the proper progression of the case. [16] [ 22 ] The mother is not exempt from the requirement of filing a financial statement together with all of the attachments that normally accompany a financial statement. [17] This applies whether she intends to dispute the father’s claims or not.

These financial filing requirements are outlined not only in the rules [Rules 13, 15 and 37] but also in the Child Support Guidelines [ s.21(2) ]. [ 23 ] Financial information is not all that is demanded of a respondent in an ISO Act claim for child support. There is a positive duty on a respondent to file certain documentation to disclose the nature of the response, the issues intended to be raised and the evidence on which the respondent relies. [18] The mother in this case has filed none of this material. The word “file” means to serve the other party and file with the court with proof of service.

This has not been done either. [ 24 ] The mother has requested an oral hearing. Unfortunately, this request resulted in one half hour being set aside for the hearing. Is this enough time? The court has absolutely no idea of how many witnesses the mother proposes to call. It does not know what issues the mother intends to raise. It does not know what she wishes to say by way of argument or how long she intends to be. Self represented litigants are not known, in my experience, to be focussed on issues or particularly adept at citing law or tying evidence to legal principles.

In this case, there is not only a support application; there is also a support variation application that is retroactive as well as prospective, with the added possibility of an assignee. In all of the foregoing circumstances, I believe it would be prudent to explore the temporal requirements of an oral hearing before a further date for such a hearing is set.

The Designated Authority (in Ontario) and the Appropriate Authority (in Manitoba) [ 25 ] The ISO Act creates a procedure for the making of and registration of support orders and support variation orders between two jurisdictions that have reciprocal arrangements. This involves litigants who are resident in the two jurisdictions. The litigants don’t ever seem to meet. Each does his or her own thing in his or her own back yard.

The documents involved in the application made are transmitted by way of “Authorities” appointed in the two jurisdictions in question. [19] The role of these authorities is not particularly well developed in the wording of the statute or in any regulation for purposes of applications such as this one. It seems that they do not exist to provide legal advice, legal assistance or information that a litigant would require to proceed with his or her case.

They seem to function more in the nature of intermediaries or go-betweens. [ 26 ] There is a role that the designated authority serves where, as in this case, the information and documents needed for the court to proceed are deficient. This role is described in section 11(2) of the ISO Act . [20] In this case, this is precisely what must be done as there are too many missing pieces of evidence from the father to deal with his claims properly. While the Act does not involve the designated authority in extracting documents from the mother, this court can make orders requiring her to file the financial documents

required of her by the Rules, the ISO Act and the Child Support Guidelines . [ 27 ] At the end of the day, the ISO Act requires the Ontario court to do one of several things. [21] If it chooses to refuse to make a support order, it must give written reasons for doing so and send these reasons to the designated authority. At the moment, I would, on the present state of the evidence, dismiss the father`s claims mainly because of his deficiencies. However, this does not really create any fairness to either party.

I believe both are entitled to a reasonable and reasoned judicial resolution as it is clear, based on what information has been provided, that the existing orders of child support are inconsistent with the current circumstances of the parties and the children. [ 28 ] Pursuant to s.11(2) of the ISO Act (Ontario), I hereby direct the Ontario designated authority to request from the claimant or the appropriate authority in Manitoba, copies of the following to be filed with this court: 1.

Income tax returns of the applicant (claimant) Jean-Mario Paul Dowinski for the calendar years 2008, 2009, 2010, 2011 with attachments 2. Notices of assessment from Canada Revenue agency of the applicant (claimant) for the years 2008, 2009, 2010, 2011 3. Copy of statement or statements of arrears of child support from the maintenance or support enforcement program, either in Ontario or in Manitoba, or both, that is involved in enforcing the existing support orders. 4.

Copy of, or alternatively and preferably, a citation of, the law of Manitoba that the applicant wishes this court to rely upon in making its determinations in this case. 5. Any additional evidence of unemployment or under employment of the respondent, or of any other reason, on which he relies for his claim for judicial imputation of income to her, and in particular for the income amount he wishes the court to impute. 6.

At the option of the applicant (claimant), any written submissions or arguments on the issues in this case. [ 29 ] With respect to the respondent mother, I order that by December 18, 2012, she serve on the applicant and file with this court with proof of service : 1. A sworn financial statement with all required attachments. 2. Her income tax return for 2009, 2010 and 2011 with all attachments. 3. A copy of her current income or benefits statement with year to date information for 2012 4. An Answer in Form N 5. An Affidavit setting out the evidence on which she relies 6.

A witness list and approximate duration of their testimony for the oral hearing she is requesting. [ 30 ] With respect to the Applicant father, I order 1.

That he investigate the existence of any assignee of the support orders he is seeking to vary or terminate, and that he serve such assignees, if any, with a copy of his ISO Act application, and file proof of service thereof with this court. [ 31 ] Finally, I order that this ISO Act application is adjourned to December 19, 2012 at 2:00 pm to set a date for the next step in this case. [ 32 ] These Reasons are to be forwarded by the clerk of this court to the Applicant father, the Respondent mother and the Ontario designated authority at their most recent respective addresses as determined from the court file.

Released: November 21, 2012 Signed: “Justice John Kukurin”