• by Christina Hinds
Originally published in the OFLM 2024-08 edition
Overview
Part III of the Interjurisdictional Support Orders Act (“ISOA”) allows for the registration and enforcement of support orders made outside of Ontario in reciprocating jurisdictions. Registered orders can be confirmed or set aside under subsection 20(4)(b) of the ISOA.
In Blackiston v. Newman (2024 ONCJ 349), Justice Sherr confirmed a child support order made in California and registered in Ontario.
Facts
In November 2023, the mother registered an April 2001 California child support order in the Ontario Court of Justice. The mother sought arrears from the date of the order until 2005 (when the children were adopted by the mother’s husband). At the time of the hearing in Ontario, the children were 31, 33, and 34 years old. The father had no relationship with the children and had not seen the children since 2000.
The father’s pay was garnished in Texas for approximately 2 months in 2001 before he moved to Canada. The Director of the Family Responsibility Office, Interjurisdictional Support Orders Unit (“ISO Unit”) participated in the proceeding and filed a statement of arrears accrued pursuant to the California child support order.
The father brought a motion seeking to set aside the California child support order on the basis that he did not receive proper notice of the proceeding in California and did not have a reasonable opportunity to be heard in the California proceeding.
The father also argued that the order was contrary to public policy because: (a) his income was much lower than the income attributed to him for support purposes; (b) he disputes the paternity of one of the three children; and (c) the order was not enforced for the 22 years, and it was unfair to enforce the order now.
The mother argued that the father had notice of the proceeding, took no steps to set aside or change the California order, did not previously challenge the paternity of the child, and that she had spent the last several years trying to locate him while he avoided his child support obligations.
Setting aside registered support orders
A support order that is registered under the ISOA can be set aside under subsection 20(4)(b) of the ISOA which sets out that:
On a motion under subsection (2), the Ontario court may,
. . .
(b) 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.
Proper notice/reasonable opportunity to be heard
The decision to set aside an order is a decision of judicial discretion and the onus is on the party seeking to set aside the order (at para. 35). Justice Sherr determined that on a balance of probabilities, the father received notice of the California proceeding and that he had a reasonable opportunity to be heard (at para. 34).
Evidence of Proper Notice
The mother submitted evidence to support that the father received notice of the California proceeding, including that the California court was satisfied that the father received notice and documents from the California court file confirming that the father was served by mail (at para. 37).
Justice Sherr found the mother to be a credible witness while noting “significant concerns with the reliability and credibility” of the father’s evidence (at para. 39). His Honour found that that the mother’s evidence supported her position that the father avoided his child support obligations, including (at para. 42):
He moved from California to Texas shortly after the California child support order and did not tell the mother.
After his income was garnished in Texas, he quit his job and moved to Canada and did not tell the mother.
The mother described her extensive efforts to locate the father.
The father did not voluntarily pay any child support for the children since moving to Canada in 2001.
The father did not previously question the paternity of the children.
The father provided no evidence of his financial circumstances at the time of the California child support order.
Public Policy
The father argued that the California child support order was against public policy because he was only earning $1,500 USD per month and the order set his income at $2,850 USD per month. He further argued that did not have the opportunity to challenge the paternity of one of the children.
Justic Sherr disagreed that the order was against public policy. His Honour stated at paragraph 48 that there is narrow application to setting aside a foreign order on the grounds of public policy:
The court should give careful consideration before deciding that something is contrary to public policy, particularly in the area of conflict of laws […] Setting aside a foreign order on a public policy basis should be given a narrow application. This defence is not meant to bar enforcement of a judgment rendered by a foreign court with a real and substantial connection to the cause of action for the sole reason that the foreign jurisdiction would not yield the same result as in Canada.
In Beals v. Saldanha (2003 SCC 72), the Supreme Court of Canada stated at paragraph 75 that the defence of policy is not a remedy to be used lightly:
The use of the defence of public policy to challenge the enforcement of a foreign judgment involves impeachment of that judgment by condemning the foreign law on which the judgment is based. It is not a remedy to be used lightly. The expansion of this defence to include perceived injustices that do not offend our sense of morality is unwarranted. The defence of public policy should continue to have a narrow application.
At paragraph 49, Justice Sherr referred to cases that the court has found foreign support orders contrary to Ontario public policy “because the foreign jurisdiction’s methodology for calculating child support results in much higher support orders than would be ordered in Ontario.”
In Hastings v. Deacon (2014 ONCJ 618), the Florida Child Support Guidelines resulted in a substantially higher amount of monthly child support than what would have been ordered pursuant to the Ontario Child Support Guidelines. Justice O’Connell held that “the objectives of fairness, efficiency and consistent treatment required by the Guidelines” were not met by the Florida child support order or the objectives of the ISOA (at para. 53). Justice O’Connell set aside the order after finding it contrary to public policy as the support amount was “excessively higher” than what would have been ordered in Ontario. While the order was set aside, Justice O’Connell stated that the public policy defence is not meant to interfere with the findings of fact of a foreign jurisdiction.
In Blackiston v. Newman, the father did not argue that the methodology for calculating child support in California was contrary to Ontario public policy. Rather, he argued that his income was improperly assessed and that he did not have a chance to challenge paternity. At paragraph 52, Justice Sherr stated that, “the public policy defence is not meant to interfere with findings of fact by foreign jurisdictions when proper process has been followed. To find otherwise would undermine the integrity of the interjurisdictional scheme.”
Justice Sherr determined that proper process was followed in California and that the determination of the father’s income in California was a finding of fact.
Conclusion
Child support orders from reciprocating jurisdictions can be registered in Ontario under the ISOA. A registered support order can be set aside by the Ontario court if it is found that a party did not receive proper notice of the foreign proceeding or have an opportunity to be heard. A registered support order can also be set aside if it is found to be contrary to public policy in Ontario.
However, there is narrow application to setting aside a foreign order on the grounds of public policy and the defence is not meant to interfere with findings of facts by foreign jurisdictions.