Bezanson v. Falle

Bezanson v. Falle Collection Decisions of the Court of Appeal Date 1998-12-23 Docket numbers C26848 Judges Krever, Horace; McKinlay, Hilda Margaret; Feldman, Kathryn N. Subject Family Decision Content Date: 19981223 Docket: C26848 COURT OF APPEAL FOR ONTARIO RE: YVONNE BEZANSON (Appellant) v. MILLER FALLE (Respondent) BEFORE: KREVER, McKINLAY AND FELDMAN JJ.A. COUNSEL: Katrina A. Prystupa for the appellant Rubin Dexter for the respondent HEARD: November 2, 1998 E N D O R S E M E N T [1] The appellant appeals from the refusal of the motions judge to grant summary judgment enforcing a settlement reached between the parties for lump sum child support. In oral submissions counsel for the respondent argued that neither the court below nor this court has jurisdiction to entertain the motion because the proceeding was brought as an application to vary an order of the Family Division of the Nova Scotia court, subsequently registered in the New Brunswick Court of Queen's Bench. [2] We agree that the order in this case could not be varied by an Ontario court. Section 37 of the Family Law Act, R.S.O. 1990, c.F.3 requires that in order to be eligible to be varied the original order must be made or confirmed under the Act. In this case the original order was neither made nor confirmed under the Act but rather, was made in another jurisdiction. An order made in another jurisdiction can be varied by an Ontario Court under s.7 of the Reciprocal Enforcement of Support Orders Act, R.S.O. 1990, c.R.7 if the original order is registered in Ontario. Section 2(1) of the Act requires that the respondent be in Ontario before an order made in another jurisdiction can be registered here. The order in this case was not registered, nor could it have been. The respondent husband was in Nova Scotia at the time the application was brought. [3] However, the court below did have jurisdiction under s. 33 of the Family Law Act to make the alternative order requested which was a lump sum child support order in the amount of $100,000. The judge who heard the motion for summary judgment on the settlement denied the claim of the appellant mother, and suggested that any further proceedings be brought in Nova Scotia because by that time both parties lived in that province as did the children. However, the motions judge did not consider that he did not have jurisdiction and dealt with the motion on the merits. [4] In fact what occurred was that after the application was served on the respondent in Nova Scotia he retained counsel in Ottawa to represent him on the application. That counsel, upon the respondent's instructions, negotiated a settlement with the appellant whereby he agreed to pay child support in a lump sum in the amount of $65,000 in full settlement of all of his future child support obligations. This was acknowledged by the respondent in his affidavit material filed in the summary judgment motion to enforce the settlement. He, however, took the view that because circumstances changed with one of the children shortly after the agreement, the underlying premise of the agreement was no longer the same and he did not need to abide by it. [5] The motions judge agreed with that analysis, but with respect we do not. A settlement agreed to by the parties is enforceable as a contract and is routinely enforced by our courts. The fact that circumstances may have changed after the agreement would not normally affect the situation. [6] However, in the case of child support, clearly the best interests of the child must always be considered by the court before any lump sum settlement is approved. In this case there is no evidence that the respondent father is financially incapable of supporting either the son, who has moved in with him, or the daughter. After making no payments for years, the respondent became the beneficiary of good fortune when his father won several million dollars in the Lotto 649. [7] The material discloses that the daughter had lived with the father for a period before the lump-sum agreement was made, so that the finding of the motions judge that the underlying premise of the lump-sum agreement was that both children would necessarily remain with the mother is not borne out. Older children can always change their feelings and wishes and had done so in this family. There is no suggestion in the decision of the motions judge that in the particular circumstances of these parties the lump-sum amount was not a reasonable arrangement for the support of the children, and appropriate for these particular parties given the history, nor is there any suggestion that after making that payment to the mother, the father would not be able to support the children if either or both of them came to live with him. [8] In our view the appeal should be allowed and the settlement as agreed by the parties is to be implemented. [9] Costs of the motion and of the appeal to the appellant.