Father sets aside Ontario registration of support order granted by court in reciprocal jurisdiction
An Ontario court has jurisdiction under the Interjurisdictional Support Orders Act to order child support in the face of a foreign child support order that is valid but unenforceable in the province, a recent decision has said.
In Krause v. Bougrine, 2022 ONCA 161, a couple – who married in Finland in 2003 and had two children – divorced in 2004. The father has resided in Ontario since 2007, while the mother is raising the two children in Finland.
In 2010, the District Court of Varsinais-Suomi in Finland awarded custody of the children to the mother and imposed a child support order on the father. In 2011, the Finland Turku Court of Appeal issued an order dismissing the father’s appeal.
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In 2014, the Interjurisdictional Support Orders Unit of the Family Responsibility Office successfully asked the Ontario Court of Justice to register the 2010 and 2011 Finnish orders for enforcement in Ontario under s. 18 of the ISO Act. The father, who has paid no child support since 2010, moved to set aside the registration under s. 20(2) of the statute.
A motion judge of the Ontario Court of Justice made a temporary support order in June 2019, at which point the father started paying child support. The motion judge issued a final order to pay child support and child support arrears in October 2019. In 2021, an appeal judge of the Superior Court of Justice allowed the appeal and quashed the motion judge’s decision for want of jurisdiction.
The ISO unit director filed an appeal for the mother’s benefit. The Court of Appeal for Ontario allowed the appeal, set aside the Superior Court’s order and restored the Ontario Court of Justice’s order.
Cheng v. Liu, 2017 ONCA 104 did not support the father’s position or the analysis of the Superior Court’s appeal judge, the appellate court said. In that case, the issue was whether an Ontario court had jurisdiction under provincial law – the Family Law Act – to determine child support after a foreign court issued a divorce decree without addressing child support. In this case, however, another provincial law – the ISO Act – fit this matter’s intent and purpose and expressly set out the exact remedy sought.
According to the appellate court, the father’s conduct triggered the specific language of s. 21 of the ISO Act when, under s. 20, he successfully set aside the Ontario registration of the child support order granted by a Finnish court. Finland was a reciprocal jurisdiction and removed his enforceable obligation in Ontario.
After it became aware of the situation, the appellant appropriately invoked s. 21, which empowered an Ontario court to hear a new support application considering the unenforceable foreign order and other information necessary for making a new support order, the appellate court said.
The Ontario Court of Justice correctly issued an order granting the appellant’s sought relief, the appellate court concluded. Thus, the Superior Court should not have quashed that order for want of jurisdiction, absent a finding that the invoked provisions were unconstitutional, which would require notice to the attorney general.