Friday, November 23, 2007

Enforcement of Foreign Support Order under Interjurisdictional Support Orders Act 2002: Registration of Foreign Support Order set aside

In a decision released on November 6th 2007, Mr. Justice Stanley B. Sherr of the Ontario Superior Court of Justice set aside the registration of a child support order made by the District Court of the Republic of Poland. This order provided that the respondent father pay child support to the applicant in the sum of $222 per month, plus $2,300 for retroactive child support. This order was registered in Ontario Superior Court of Justice pursuant to the provisions of Interjurisdictional Support Orders Act, 2002 (ISO Act).

The parties met in Poland in June 2002 and entered into an arranged civil marriage one week after meeting. The respondent husband returned to Canada two days after the wedding and planned to sponsor the wife and the child of the wife from an earlier relationship to come to Canada. The husband returned to Poland for 10 days in October of 2002 and had a church wedding with the applicant wife. He returned to Canada without the applicant and the child and the parties did not see each other since then.

The support order was in respect of the wife’s child from an earlier relationship and the husband never stood in the place of a parent to the child. Although the husband had notice of the proceeding in Poland, he could not afford to go there, and the lawyer he had contacted in Poland to deal with the matter did not attend court.

The court observed that it is unrealistic to expect that persons of modest means, such as the respondent in this case, have the financial resources to litigate child support cases in jurisdictions as far away as Poland. Because of the distance and cost involved, the respondent was unable to appear in court to ensure that counsel properly communicated his position. The court further observed that the comprehensive procedure to make support claims against payors residing in foreign jurisdictions, set out in the ISO Act was created to address these issues and to establish a fair process for support payors.

In the court’s view, because Poland is a reciprocating jurisdiction under the ISO Act, the wife should have used the procedures in the legislation. According to the proper procedure the application for support should have been sent by the designated authority in Poland to the designated authority in Ontario and served on the respondent. The respondent would then have had the opportunity of responding to the application in the Ontario court. By not following the proper procedure, the wife risked the possibility that her order would not be enforceable, which was the case here.

On the husband’s successful motion to expunge registration of the Order, the court ruled that the Applicant wife pursued her support claim outside ambit of ISO Act and the order that she obtained could not be enforced in Ontario because the husband did not have reasonable opportunity to be heard.

The court also set aside the registration of the order on the ground of being against public policy in Ontario because there was evidence that it was obtained through misrepresentation. The applicant wife had used an amended birth certificate, for a purpose not agreed to by the respondent husband, to misrepresent to the Polish court that the husband was the child’s parent.

The court however clarified that a foreign court order that imposes a child support obligation on a resident of Ontario that is not sanctioned by the law of this province is not necessarily against public policy.

For full text see: Waszczyn v. Waszczyn

- Shashi K. Raina, Toronto

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