When parents divorce or separate, one of them might find themselves in a position where they have to pay spousal support or child support to the other parent. Unfortunately, not every parent is willing to pay child support, and some might go to extreme measures to avoid paying it at all. In these situations, there are measures that can be taken, such as the garnishment of the payor’s wages. Pursuing payment from a parent who does not want to pay spousal support can be a frustrating and costly endeavour at the best of times. The situation becomes even more challenging when the parties reside on different continents. This was the case in a recent decision issued by the Court of Appeal for Ontario, in which the court had to determine whether it has the jurisdiction to make a support order when one already exists in another country, with a further complication being that the support order had been previously set aside by an Ontario court.
Parents are married and divorced in Finland, father then moves to Canada
The parties were married in Finland in 2003 and were divorced just one year later. They had two children while they were together. The father moved to Ontario in 2007, while the mother and children remained in Finland (although the court did say the father abducted the children to Morocco for 14 months in 2012-2014).
A Finnish court awarded the mother custody of the children in 2010 and further ordered the husband to pay child support equal to € 350 per month. The father appealed this order in 2011 but was unsuccessful in doing so. The court said the father paid child support for a brief period in 2009 and 2010 but went close to a decade before making any additional payments.
Both Finland and Canada are parties to international legislation, enacted in Ontario as the Interjurisdictional Support Orders Act (the “ISO Act”), which allows the ISO Unit of the Family Responsibility Office (the “FRO”) to enforce support orders from foreign jurisdictions. This allowed the mother to pursue an action in Finland which led to the FRO sending orders to the Ontario Courts to enforce the husband’s child support obligations. They were registered in December 2014 and served on the father.
The father then brought a motion under the ISO Act to have the order set aside, stating that he had not received notice of the Finnish proceedings and stating that he planned to move to Morocco soon. The motion judge took the father’s word for it and set aside the registration of the Finnish order.
It turns out the father was not honest with the motion judge and that six years later, he was still in Canada. It was also uncovered that the father was personally served with the application. The court was also unaware at the time of the father’s abduction of the children. When the FRO tried to re-enforce the order, the trial judge found that even though the father had misled the court earlier, the registration of the Finnish support order had been set aside by a court in Ontario.
Nevertheless, the motion was not brought before an appeal court, so the motion judge could not re-register the order. As a result, the decision of the Ontario Court had to stand. The motion judge ordered temporary support in the amount of $2,463 per month based on the father’s income of $181,558. The court also ordered the husband to pay $300 per month towards his child support arrears.
Husband appeals order for child support
The husband appealed, and the judge who heard the appeal quashed the motion judge’s decision for what it described as “want of jurisdiction.” The judge on appeal wrote that there are now essentially two child support orders in place – a temporary one in Canada and one in Finland. The court found this problematic, adding that the ISO Act does not allow for the Finnish order to be invalidated.
The mother appealed that ruling, which led to the case at hand. The issue on appeal was whether an Ontario court has the jurisdiction under the ISO Act to order child support in the face of a valid (but unenforceable) order from a foreign jurisdiction.
Interjurisdictional Support Orders Act allows for the enforcement of orders in reciprocating jurisdictions
The court looked at the ISO Act and found that it does allow enforcement of orders when one party lives in Ontario and another in a reciprocating jurisdiction. The purpose of the ISO Act is to facilitate the enforcement of support obligations when the party to whom support is owed cannot collect. The court stated that while the ISO Act might not specifically allow for a new order to be created, the language of the ISO Act must be interpreted in light of its purpose. The court concluded the father had taken steps to set aside the enforcement of the Finnish order, leaving the mother virtually unable to collect any support. The court said there is little chance that double recovery (under the orders in Finland and Ontario) would be a risk because the ISO Act requires cooperation between governments, and these details would surface if the mother ever tried to collect on the Finnish order. As a result, the court allowed the appeal.
Contact Howie Johnson Barristers & Solicitors for matters related to child support