When a court makes an order for child support payment, collecting payments can become more complicated when one party resides in a foreign jurisdiction. Ontario has legislation permitting courts to enforce support obligations where the other party resides in a reciprocating jurisdiction. It allows support recipients to register support orders with a simplified scheme to help ensure parties receive the support they are entitled to. But how do courts deal with issues of jurisdiction, and can Ontario courts make a support order if a foreign court has already dealt with the issue?
The Importance of Reciprocal Recognition of Interjurisdictional Support Orders
Ontario’s Interjurisdictional Support Orders Act (“ISO Act” or “Act”) allows parties to obtain, vary, and enforce support orders where one party lives in the province and the other party lives in a reciprocating jurisdiction. When an order is registered under the Act, the ISO Unit of the Family Responsibility Branch can enforce foreign support orders. Courts have noted that these statutes are enacted due to the historical difficulty that parties encountered in seeking to obtain and enforce support orders when one party does not reside in the jurisdiction where the original order was made. As the Ontario Court of Appeal has explained, “the core scheme of the ISO Act is to establish a fair and workable system for providing support for children and spouses who have a parent or former partner living in a different jurisdiction.”
Within 30 days of receiving notice of the registration of a foreign order, a party can make a motion to set aside the registration. On such a motion, under section 20(4) an Ontario court may:
- confirm the registration; or
- set aside the registration if the Ontario court determines that,
(i) in the proceeding in which the order was made, a party to the order did not have proper notice or a reasonable opportunity to be heard,
(ii) the order is contrary to public policy in Ontario, or
(iii) the court that made the order did not have jurisdiction to make it.
Parties Attempt to Register a Support Order from Finland
Krause v. Baugrine examined whether an Ontario court could make a support order when such an order had already been issued by a foreign court but was unenforceable in Ontario. The appeal involved a non-payor who resided in Ontario, while the support recipient and her two children resided in Finland. In 2010 a court in Finland made a support order requiring the father to pay child support. For a short period, child support was paid to the mother, after which the father ceased to make any further payments.
Importantly, Finland is a reciprocating jurisdiction for the reciprocal enforcement of support orders under Ontario’s ISO Act. In 2014, the ISO Unit received a letter from the Minister of Justice in Finland requesting the registration of the Finnish order and for enforcement of support arrears against the father. Under section 20(2) of the Act, the father brought a motion to set aside the registration for enforcement of the Finnish orders. He argued that he intended to move to Morocco and that he had not received notice of the proceedings that led to the 2010 order in Finland. On that basis, the registration was set aside. However, much of the material in the father’s affidavit was false: he was not temporarily employed in Ontario but continued to reside in the province, and he had participated in the Finnish proceedings but was unsuccessful.
When the ISO Unit learned that the father continued to be employed and live in Ontario, it sought enforcement of the order per section 21 of the Act, which provides that when an order of a reciprocating jurisdiction has been set aside under section 20, the order shall be treated as a support application. The motion judge found that proceedings only lapsed due to the false information provided, indicating the father was leaving Canada. As this was incorrect, the court could now revisit the matter. Moreover, the judge rejected the argument that setting aside the registration in Ontario invalidated the Finnish order. Instead, the judge found that it was a mechanism for avoiding the need to commence a new child support application. Consequently, the court ordered child support payment, with the Family Responsibility Office assisting with enforcement.
Ontario Courts Can Enforce Foreign Support Orders
The father appealed the motion judge’s decision to the Superior Court of Justice. The court determined there was a dilemma as the effect of the motion judge’s decision meant that there were two child support orders in existence – one in Finland and one in Canada, as section 21 of the ISO Act did not invalidate the Finnish order. Instead, looking at Cheng v. Liu, the judge accepted that the courts in Finland had exclusive jurisdiction over child support. The case advanced to the Ontario Court of Appeal to decide the singular issue: whether the Ontario courts had jurisdiction to make a support order even in the face of the valid Finnish order.
The Court of Appeal first explained that the purpose of the ISO Act is to facilitate the enforcement of support obligations when parties reside in different jurisdictions against a backdrop of historical difficulties that parties have had in obtaining support. Here, section 21 was triggered by the father’s conduct in having the registration of the Finnish order set aside. The ISO Unit then invoked section 21, which empowered an Ontario court to hear a new support application.
The court agreed that the initial decision requiring child support payment was correct. The decision in Cheng dealt with whether an Ontario court had jurisdiction under provincial legislation to provide support if a foreign divorce was silent on the matter. The case decided that there was no prohibition against courts making an order in those circumstances. It did not support the decision by the Superior Court of Justice. Here, the Act specifically provided for that exact remedy.
Statute Simplifies Collection Where Parties Reside in Foreign Jurisdictions
This case reiterates the significance of the ISO Act to Ontario’s support scheme and the need to ensure that families that rely on child support have access to a fair system that enables recipients to actually collect support payments. Consequently, the case helps clarify the jurisdiction of Ontario courts. As the Court of Appeal put it, the problem in too many cases is the lack of recovery by support recipients, and the Act is an important means to ameliorate that problem.
Contact Windsor Family Lawyers for assistance with Interjurisdicational Support Orders
The family lawyers at Howie Johnson Barristers & Solicitors in Windsor focus exclusively on family law matters for clients in Ontario and bring a strategic approach to navigating family issues. The firm can assist with a wide variety of family law matters, including child support and decision-making responsibility. international child abductions, multi-jurisdictional families, and jurisdiction selection. If you have concerns, our lawyers can help you with solutions tailored to your circumstances. To arrange a consultation, please contact the firm at 519-973-1500 or through our online contact form.