Written on behalf of Shariff & Associates

When parties have obtained a foreign divorce and the issue of child support is dealt with under the foreign judgement, is there jurisdiction for Ontario courts to later make an order dealing with the same issue? These requests are carefully considered by courts as they can amount to efforts to vary the terms of unfavorable judgements, and judges are reluctant to leave several valid support orders outstanding by different courts.

Interjurisdictional Support Orders Act Sets Process For the Variation of an Order

The circumstances in which an Ontario court can hear a support application when there is a valid foreign order dealing with the issue was considered in Leavens v. Fry. The parties entered into a comprehensive separation agreement that dealt with child support and provided that the agreement would be construed under Connecticut law, where the parties were then residing. Thereafter, the applicant relocated to Ontario with the children and commenced an application seeking, among other issues, child support payable by the respondent in accordance with the Child Support Guidelines. The respondent argued that Ontario lacked jurisdiction over the proceeding.

The respondent cited Sun v. Guilfoile in support of her position. In that case, the parties obtained a court order in Japan that dealt with issues including child support. When one of the parties later sought child support in Ontario, the judge refused to hear the application because there was already a valid foreign order dealing with the issue, noting that “such an application is nothing more than a disguised variation application”. Additionally, the respondent argued that under the Divorce Act or the Family Law Act (also referred to as the “FLA”) the court could not vary a support order related to a foreign divorce. In those circumstances, it was suggested that an applicant would need to proceed under the Interjurisdictional Support Orders Act (also referred to as the “ISOA”), which facilitates the enforcement and varying of support orders between parties who reside in different jurisdictions.

The applicant’s position was that the court had jurisdiction to hear the application for child support, and that proceeding under the Family Law Act was preferable “to avoid a multiplicity of proceedings”. In Jasen v. Karassik, the Ontario Court of Appeal found that the “ISOA does not constitute a complete code” for interjurisdictional support. Instead, the court held that a resident of Ontario could bring “an application for support or variation of a support agreement under either the FLA or the ISOA”. But, if an applicant wanted to proceed under the Family Law Act against a non-resident, they had to show that Ontario had “a real and substantial connection to the subject matter of the application”. Consequently, the finding in Jansen was that the Interjurisdictional Support Orders Act does not prevent a parent from pursuing a support remedy against a party in another jurisdiction.

Ontario Courts May Consider Child Support Anew

Kaur v. Guraya was another case that considered the court’s jurisdiction in the face of a foreign divorce. Here, the parties obtained a final order dealing with parenting and child support from the Superior Court of Washington, after which the mother relocated to Ontario and initiated a new application dealing with the same issues. Justice Gordon accepted that generally courts should “not entertain a support application in Ontario when there is already an order in a foreign jurisdiction which deals with the issue”. This was out of concern that a party who disliked the result in one jurisdiction could move to another jurisdiction and re-litigate the matter. However, where an applicant brings an application for decision-making responsibility and the children are habitually resident in the province, if the party satisfies the court that a foreign order that deals with parenting should be superseded, then “the issue of support for those children arises anew”.

Section 42 of the Children’s Law Reform Act permits a court to supersede an extra-provincial order dealing with the children where there is a material change in circumstances that is likely to affect the best interests of the child, and the child is, among others, habitually resident in Ontario or has a real and substantial connection with Ontario. For Justice Diamond in Leavens, the relocation of children will frequently amount to a material change in circumstances, and in those cases, issues of parenting and support should be addressed in the same jurisdiction. In this case, the judge did not agree that the application was a ruse to vary child support. Instead, Ontario was where the children resided, and the respondent’s decision to remain in the United States was contrary to the parties’ earlier intentions and should not prevent the applicant from seeking relief in Ontario. The result was that the court had jurisdiction to hear the child support application.

Courts Concerned With Creating Conflicting Support Orders

The case of Taimish v. Al-Kadhimi looked at the exceptions which permitted Ontario courts to assume jurisdiction in the face of an existing foreign order. In this case, at the time of the parties’ separation they resided in Michigan, but after the separation, the mother moved to Ontario with their child. The mother brought a divorce proceeding in Michigan so that all their family law issues could be resolved in that state. The divorce proceeding judgement resolved all the family law issues, providing for joint decision-making responsibility, a parenting time schedule, and child support. The order also prohibited either party from bringing a retroactive variation in the future. At one point, the mother unilaterally suspended the father’s parenting time and then commenced an application in Ontario dealing with parenting and child support. In response, the father requested an order enforcing parenting time as provided for in the divorce judgement, and objected to changing the joint decision-making, and claimed that child support needed to be addressed through the Michigan courts, or by the Interjurisdictional Support Orders Act. Ultimately, he argued that Ontario courts lacked jurisdiction over the child support claim.

The mother’s argued that child support should be determined in accordance with the Child Support Guidelines, and that Ontario courts could assume jurisdiction since the process provided in the Interjurisdictional Support Orders Act is not the only way of adjusting child support. However, the problem the judge identified was that if the mother’s application was successful it would amount to a variation of the Michigan final order. Ultimately, a foreign support order is binding on the parties and “as a matter of public policy there should not be two outstanding support orders” since an Ontario order would create two competing orders. Justice Himel did acknowledge that there are instances when a court can make an order for child support in accordance with the Family Law Act even when there is a foreign divorce order, such as:

1. The foreign divorce is silent regarding child support,
2. The jurisdiction that issued the foreign divorce and child support provisions is not a reciprocating jurisdiction under the Interjurisdictional Support Orders Act, so that Ontario could make an original order for child support, or
3. There is flagrant non-compliance with the existing order for child support as contained in the foreign divorce.

Was There a Material Change in Circumstances?

A fourth instance may be possible where there had “been a material change in circumstances leading to a legitimate claim for custody and access in Ontario, and where the Court is satisfied that a foreign order for custody and access should be superseded, the issue of child support can arise anew”. This was the finding in Leavens. In this case, there were also parenting claims before the Ontario court, but the judge determined the facts were distinguishable from Leavens.

Since the separation, the mother had always had primary care of the child in Ontario, while the father resided in the United States and was consistently clear he wanted a relationship with the child, and the divorce judgement accounted for these facts. Therefore, none of the exceptions applied, and any variation of child support had to proceed through the Interjurisdictional Support Orders Act, which was the proper avenue for obtaining a new child support order.

Support Variation May Need to Proceed Through the ISOA

Generally, an Ontario court cannot vary a support order that is contained in a foreign divorce. However, there are instances where a court can make an order under the Family Law Act even though the issue has been dealt with under a foreign judgement. If none of the exceptions apply, any variation of support must proceed under the Interjurisdictional Support Orders Act.

Contact the Family Lawyers at Shariff & Associates for Advice on Support Obligations and Imputed Income

The trusted family lawyers at Shariff & Associates regularly advise clients on their rights and help them understand their obligations when it comes to disputes arising from a separation or divorce, including child support obligations. Our family law team helps parents make informed decisions and explore various alternative dispute resolution methods in order to resolve outstanding issues. From our office in Stouffville, our firm represents clients throughout Markham and the Greater Toronto Area with various family law needs. Contact us at 905-591-4545 or complete our onlineform to schedule an initial consultation with one of our lawyers.