INTERPROVINCIAL SUPPORT ENFORCEMENT PROCEDURE CAN BE IMPROVED
It is difficult when the child support payor and recipient live in different provinces. This can be particularly difficult when neither party has sufficient money for either lawyers or extra-provincial travel.
In cases at the federal court level, the Divorce Act encloses a method to address these issues. Unfortunately this method still has significant limitations.
The recent case of Chree v Chree, 2015 ONSC 6480 provides an excellent demonstration of these limitations. You can read the decision here.
In this case the parties had two children together. The Father moved from Ontario to Nova Scotia after the separation.
- The Mother was granted a court Order in Nova Scotia in 1989. It ordered as follows:
- The Father was to pay $400 per month when unemployed;
- The Father was to pay $700 per month when employed;
- The Father was assumed to be employed until he proved otherwise
- The Father already owed the Mother $11700 in child support arrears, the amount of $550.00 was to be paid immediately.
In 2013 the Father brought a motion to change the child support Order. He brought the motion in Nova Scotia because that is where he resided at the time. Here is the procedure he used.
- The Father drafted written materials stating what he wanted and why he felt he was entitled to his request.
- The written materials were served on the Mother in Ontario
- The Mother wrote and served materials that responded to the Father’s materials.
- The Father testified at a hearing in Nova Scotia. The Mother does not attend.
The Father obtained a Preliminary Order from the court in Nova Scotia for the following:
- The Father ceased to be obligated to pay child support for one child in 1999, and was no longer responsible to pay child support for the other child in 2001.
- The Father owed no arrears for the time between the last court Order (1989) and when the children ceased to be children of the marriage;
- There was a moratorium on enforcing the child support arrears already ordered in the 1989 Order.
The Preliminary Order does not come into effect. It is like a suggestion to the judge at the other province
The Preliminary Order must be confirmed by a judge in the province in which the other party resides. The term “confirmed” is a misnomer because the judge in the second province can do whatever he or she wishes with it.
The Father files the following materials with the Superior Court in Ontario
- The preliminary Court Order of 2013;
- The written documents submitted in the 2013 hearing;
- The Transcript of the 2013 Hearing
The Superior court then has a hearing with the Mother. It was before Justice Pazaratz. Justice Pazaratz, after hearing the Mother’s evidence, decided that the Father wrongly stated that the parties reconciled for some time. Also, the Father had no good evidence as to when he was unemployed in the past. The Nova Scotia judge chose to believe the Father. Justice Pazaratz felt, however, that it was the Father’s obligation to keep accurate records of his periods of unemployment.
Apart from agreeing that the Father’s child support obligation ceased in 1999 and 2002, Justice Pazaratz overturned the 2013 Order and re-stated the 1989 Order.
Although the Father did not succeed, the Mother did suffer a hardship. Provincial support enforcement agencies ceased to collect child support on the strength of the Nova Scotia order alone.
Justice Pazaratz commented that this process is difficult because one judge accesses the credibility of one party while another judge accesses the credibility of the other party. Second,iIt the unrepresented party fails to discuss an issue in the written materials, the judge has a dilemma. If the judge gets evidence outside the written materials, then the other party does not have an opportunity to respond. If the judge forces a party to strictly adhere to the written materials only, however, then several motions to change would be rejected due to the incomplete materials. This would be particularly difficult for non-represented parties.
Justice Pazaratz suggested that SKYPE or another method telecommunicated hearing would help. Technology can be a real benefit in this area of law. My sole disagreement with Justice Pazaratz, however, is that a teleconferenced hearing would be difficult due to different time zones.
In civil litigation, a witness can testify before trial. It is videotaped. Also, there are Simplified Procedure Trials in which evidence is based on Affidavits. In essence, the Affidavits are exchanged and follow-up Affidavits are exchanged to respond to the opponent’s affidavit. Perhaps a fusion of these methods would suffice.