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Confirming Provisional Variation Orders

Pursuant to section 18(2) of the Divorce Act, a court can make a provisional order against a respondent who does not reside in that jurisdiction or does not accept the jurisdiction of that court. After the provisional order is made, it may be confirmed by a court that has jurisdiction over the respondent, who will then become bound by the provisional order.

Background

In the case of Davidson v. Davidson, 2019 ONSC 6727, the parties divorced in 2010 after a 15-year marriage. In addition to granting the divorce, a court in Nova Scotia ordered that the parties would have joint custody of their two children, with primary residence to the father. However, as the father was not ordered to pay any spousal support to the mother, the court held that the mother was not required to pay child support and only had to contribute $150 per month to each of the children’s RESPs.

Four years after the divorce, the father brought a motion in Nova Scotia seeking ongoing and retroactive child support based on the mother’s now-enhanced income of $100,000. The father asserted that he had been solely responsible for financially supporting the children since the parties’ divorce, and that one of their adult children is dependent on him such that ongoing child support should be ordered.

The father obtained a provisional order in Nova Scotia, which ordered the mother to pay $880 in ongoing child support for one child and $1,416 per month in retroactive child support from January 2012 to April 2014. However, as the mother now resides in Ontario, the provisional order had to be confirmed by a court in Ontario.

Analysis

The Ontario court had to determine whether the provisional order should be confirmed without variation, confirmed with variation, not confirmed, or remitted to the issuing court for further evidence. In doing so, the court must consider the entirety of the evidence that was provided in the proceedings before the Nova Scotia court and the Ontario court.

After examining all of the factual evidence, the court in Ontario refused to confirm the provisional order, as there were serious discrepancies between the father’s claims and the evidence from the mother and one of the children. The court found that the mother’s income was only $71,000 per year and not $100,000 as alleged by the father. It was also found that the father did not actually contribute to the financial support of the children. Instead, one of the children provided affidavit evidence stating that the father had not provided any financial support for a number of years and that the child is no longer a “child of the marriage,” as he is now living independently and no longer enrolled in post-secondary education. Furthermore, the court found that the father had not established the requirements that must be met before a provisional order can be made. Specifically, these requirements are:

  1. The respondent must reside in a different province than the applicant;
  2. The respondent does not accept the jurisdiction of the court where the applicant resides;
  3. Both parties to do not consent to proceed under section 17.1 of the Divorce Act; and
  4. The presiding judge is satisfied that the matter can be adequately determined through the two-phase provisional/confirmation procedure.

In this case, the father failed to establish that the mother was properly served or notified of the proceedings he initiated in Nova Scotia. Therefore, the Ontario court declined to confirm the provisional order on both procedural and substantive grounds.

To have your case reviewed by our a legal professional who practices in your jurisdiction, contact Feldstein Family Law Group P.C. at (905) 581-7222 or via our online contact form.

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