Ontario Judge Points Out Flaws in Multi-Jurisdictional Family Law
In his standard blunt fashion, Justice Pazaratz recently pointed out the shortcomings of the Canadian justice system when it comes to family law disputes involving parents who live in separate provinces.
The Justice made a ruling about a motion that a father had previously brought in Nova Scotia to amend the terms of his child support obligations, a motion which had subsequently come before Justice Pazaratz for confirmation in Ontario. Justice Pazaratz ultimately rejected the Nova Scotia judge’s order, noting that:
There’s an old saying: “Two Heads Are Better Than One”. But not when it comes to trial judges [Justice Pazaratz].
The parties were married in August 1979 in Hamilton, Ontario and separated in February 1985. They had two sons, born June 1980 and February 1982. An order granted in March 1985 gave the mother custody of the sons, with the father to pay $600 monthly, per child, with an additional $1400 annually, per child, for tuition.
The father eventually moved to Nova Scotia where, in 1989, he filed a motion to change the custody and support order. The court in that province granted several of the requested changes, including reducing the amount the father was to pay in monthly support and annual tuition during any time that he was unemployed, but increasing the amount during any time he was employed. For any month in which the father wished to pay the lesser amount, he had to submit proof of unemployment. Arrears were fixed at just over $11,000.
In 2013, the father filed for another variation which requested that the child support arrears be fixed at the previous amount based on the fact that both children had ceased to be a “child of the marriage” when they had turned 19 (in 1999 and 2001, respectively). The court granted the variation, relieving the father of almost $125,000 in arrears that had accumulated.
The Nova Scotia order fixing the arrears was only provisional in nature, and had to be brought to an Ontario court for confirmation, rejection, or variation by an Ontario judge. Justice Pazaratz was that Ontario judge.
Interjurisdictional Divorce and Family Disputes
Justice Pazaratz acknowledged the challenges with interjurisdictional disputes in family law, stating:
The Applicant lives in Nova Scotia, so he told his side of the story to a judge in that province. The Respondent lives in Ontario, so now she’s told me her side of the story here in Hamilton. Two judges. Each hearing different parts of the case. On different dates, many months apart. Having to make decisions on the same case. It may sound good on paper. It may even seem like the only practical way to deal with motions to change support, where parties live in different parts of the country and neither can afford to travel. But except in the simplest of cases, it creates an almost impossible task for judges who are: a. Accustomed to hearing both sides of the story at the same time. b. Unaccustomed to wading into the realm of advocacy, by leading or cross-examining the evidence.
The father’s motion sought to change a support order that was made under the Divorce Act. Sections 18 and 19 of that Act permits a bifurcated process in which former spouses that reside in different provinces can file applications for variation of existing orders within the province in which they live. The court in the other relevant province must then confirm, reject, or vary that order.
This two-step process is “intended to relieve the unfairness to a spouse of being deprived of access to a variation because the other spouse is residing in another province”. However, as noted by Justice Pazaratz, neither of the courts in question hear from both parties at the same time, and:
the court hearing from one party may not know whether there might be evidence contradicting that party’s position. And with no one present to formally cross-examine or challenge evidence at either hearing, the respective judges involved in the process are each placed in the difficult and conflicted position of not only weighing the evidence but also eliciting and testing it.
Attempts to overcome these challenges have been used, such as the use of teleconferences to discuss and clarify additional evidence, but Justice Pazaratz noted the potential problems with this approach as well, stating that “where significant factual and credibility determinations need to be made, the limitations of the separate-judge/separate-hearing process cannot be overcome by last minute phone calls giving the Applicant an opportunity to shore up his or her case.”
Justice Pazaratz further noted that, despite creating this two-step process, the Act does not provide any guidance on how the court that is supposed to review the first court’s order should reconcile the evidence from two separate hearings.
This two-step process makes credibility determinations difficult, especially since the second judge only has the benefit of potentially interacting with one of the two parties (both parties are not required to be present). To additionally complicate matters, the second judge has the option of referring the matter back to the first judge to obtain more evidence, which can result in delay and additional impediments.
Justice Pazaratz accepted the mother’ evidence that the moratorium on the collection of child support arrears past 1989 had no factual or legal basis. He noted that the Nova Scotia court had not had the advantage of hearing the mother’s evidence, which he had found thorough and credible. He felt that is was unnecessary and inappropriate to refer the matter back to Nova Scotia for further information from the father that would “otherwise shore up his very unconvincing case.”
Justice Pazaratz stated that the bifurcated system had already worked to the father’s advantage, allowing him to ignore his support obligations “for most of the children’s lives”.
He concluded by stating:
The order of [the Nova Scotia judge] dated May 28, 2014 is confirmed only to the extent that the [father’s] obligation to pay child support pursuant to the order of March 23, 1989 terminates in relation to both children effective April 1, 1999. Prior to that date, for any period that the [father] did not provide proof of unemployment, his support payments shall be in the sum of $700.00 per month.
The moratorium was lifted, and the arrears were enforceable, with no reduction of arrears prior to April 1999 and no restrictions on enforcement.
Read our other blogs about Justice Pazaratz’s infinitely quotable decisions:
If you have questions about separation, divorce, or any other family law issue, please contact Windsor family lawyer Jason P. Howie, online or at 519.973.1500.