Court File and Parties
Ontario Court of Justice
Date: 2015-07-22
Court File No.: Toronto DFO-11-10043-A1
Between:
Shika Mittoo Applicant
— And —
Akash Nanda Respondent
Before: Justice Marion L. Cohen
Reasons for Ruling released on July 22, 2015.
Counsel:
- Jeff Rechtshaffen / Adrienne Lee, for the Applicant
- Kristen L. Woods, for the Respondent
COHEN, M. L., J.:
[1] Jurisdiction Motion
[1] This is a ruling on a motion by the respondent regarding jurisdiction. The motion is made within a proceeding originally commenced as a Motion to Change, and then recommenced as an Application for child support in the same proceeding. Broadly speaking, the jurisdictional issue is whether the applicant is required to proceed under the Interjurisdictional Support Orders Act ("ISOA") to assert a claim to vary a foreign child support order. The applicant argues that she can proceed by Application under the Family Law Act in the face of the Order. The respondent argues she must proceed through the ISOA.
Background
[2] The applicant mother and the respondent father are the parents of Ishan Nanda, born March 21, 2000. The parties were married in Maryland, at the end of 2000, and separated in 2004. Both parties are doctors. In 2006, they obtained a consent divorce judgment in Maryland. The judgment contained corollary relief provisions: The parties were to share joint custody, the applicant was to have physical custody of the child, and the respondent was to have defined access. The respondent was to pay child support.
[3] In 2007, both parties were leaving the jurisdiction and they applied to vary the corollary relief provisions in the divorce judgment. The support and custody orders were varied in a new order, styled a Consent Custody and Support Order (the "Maryland Order"). The order permitted the applicant to move with the child, and varied the access provisions to conform with the new reality. The respondent was required to pay US$724 per month to the applicant as child support, plus his pro rata share of extraordinary medical expenses.
[4] Following the issuing of the Maryland Order, the respondent moved to Missouri, and the applicant and child moved to Manitoba. In 2010, the respondent relocated to Florida, and the applicant and child to Ontario.
[5] Since 2010, the applicant has resided in Toronto with the child. The respondent has resided in Orlando, Florida. The 2007 Maryland support order has remained in effect and there are no arrears. Both parties have remarried and the respondent has a second child. The incomes of both parties have increased substantially. The applicant currently earns CAD$297,816 annually, and the respondent earns USD$464,852.
[6] The applicant wishes her child support application to be determined under the Family Law Act. On June 2, 2014, she commenced a Motion to Change in this court to vary the existing custody and child support orders. The respondent was served in Florida. He has defended the motion to vary the custody and access arrangements, but argues that the court has no jurisdiction under the Family Law Act to vary the support provisions of the Maryland Order. Although the respondent has participated in several motions and case conferences regarding the custody/access issues, he denies attorning to the jurisdiction on the support issue. In light of my conclusion in this matter, the question of attornment need not be decided.
[7] On April 13, 2015, during the currency of this motion, the applicant commenced an Application for child support under the Family Law Act. The Motion to Change has not been withdrawn.
[8] The respondent submits that the applicant must bring her child support claim under the Interjurisdictional Support Orders Act. He has refused to increase his child support payments until this court renders a decision on this issue, claiming, somewhat disingenuously, that until he knows which jurisdiction is determining support, he cannot properly negotiate a possible settlement.
[9] Because this case is about procedure, I begin with a brief but more detailed account of the history of the child support proceedings.
Proceedings in Maryland
[10] The 2006 Divorce Judgment in Maryland proceeded on consent. Pursuant to the Judgment of Absolute Divorce, the respondent was ordered to pay the applicant $846 per month pursuant to the Maryland Child Support Guidelines. The judgment provided that "All of the provisions of this Judgment relative to custody, visitation and child support are subject to further Order of the Court."
[11] In 2007, the order was varied to permit the applicant to relocate to Canada with the child. The child support order was reduced to $724 per month plus contribution to medical expenses. The new Order (the "Maryland Order") is a variation of the corollary relief provisions in the Judgment of Absolute Divorce, as contemplated in that judgment.
[12] The support provisions of the Maryland Order have not been varied or terminated, and remain in effect.
Proceedings in Manitoba
[13] In 2007, the applicant and child relocated to Manitoba. The applicant commenced an action under Manitoba's Family Maintenance Act and Child Custody Enforcement Act. On March 26, 2008, the Court of Queen's Bench (Family Division) in Winnipeg made an interim order on consent of the parties (the "Manitoba Order"). The Court recognized the Maryland Judgment of Absolute Divorce, and the subsequent Consent Custody, Access and Support Order (the Maryland Order), and varied the access provisions of the Order. The Manitoba Court did not vary the existing support order nor did it make a fresh support order.
[14] There were no further proceedings in the Manitoba Court.
Proceedings in Ontario
[15] In 2010, the Applicant and child relocated to Ontario. The applicant commenced, and then discontinued, two Applications for child support in this court under the Family Law Act. The applicant then attempted to register the Maryland Order but was prevented from doing so by the court office, possibly as a result of a clerk's mistaken understanding of the status of her Family Law Act Application.
[16] On June 2, 2014, the applicant commenced the Motion to Change which is now before the court. Although the Motion to Change included a claim to vary child support, it is styled as a motion to change the Manitoba Order, an Order which did not include a child support provision.
[17] On January 15, 2015, the applicant amended her Motion to Change, so that it was styled as a Motion to Change not only the Manitoba Order, but also the 2007 Maryland Order. Shortly thereafter the applicant filed a Notice of Withdrawal, withdrawing the amendments which adverted to the Maryland Order.
[18] Finally, on April 13, 2015, the applicant issued a fresh Application for, inter alia, on-going and retroactive child support.
[19] As I have indicated, the Respondent has participated in the custody and access proceedings, but objects to the court assuming jurisdiction over the child support claims.
Analysis
[20] Given the foregoing circumstances, the legal question is this: Can the applicant choose to prosecute her claim for increased support by way of a Motion to Change, or by way of an Application under the Family Law Act, or is she required to bring her child support application under the ISOA?
[21] The relevant facts are these: The applicant and child are ordinarily resident in Ontario. The respondent is ordinarily resident in Florida. The 2007 Maryland Custody and Support Order is a valid and subsisting foreign support order. This Order is a variation of an order for corollary relief in a foreign divorce proceeding. The Court in Maryland presently has jurisdiction over its Order. Maryland and Florida are reciprocating jurisdictions under the ISOA.
[22] The Interjurisdictional Support Orders Act is designed to facilitate the enforcement of the support obligations of persons resident in one jurisdiction, whose dependents are resident in a different jurisdiction. Enforcing a support application involves not only enforcing existing orders, but also making or varying support orders. The ISOA was preceded in Ontario by the Reciprocal Enforcement of Support Orders Act. In the United States, the analogous legislation is the Uniform Interstate Family Support Act (UIFSA). The UIFSA is part of the law of Maryland and Florida. These reciprocal support enforcement statutes have been enacted because of the historical difficulties encountered by a party who sought to obtain, vary, or enforce a family support order when at least one of the parties to the action was no longer resident in the jurisdiction where the original order was made or to be made.
[23] In the circumstances of the case before me, I find it useful to examine the legal context which gave rise to reciprocal enforcement legislation. I rely for this analysis on Castel and Walker, Canadian Conflict of Laws (sixth Edition), at 14.5:
Historically a foreign judgment in personam of a court of competent jurisdiction was enforceable only if it was final and conclusive and for a definite sum of money. These requirements enabled the enforcing court to give effect to the foreign order without any need to enter into a consideration of the underlying dispute…
A judgment is regarded by Canadian courts as final and conclusive if it determines the rights and liabilities of the parties to it so as to be res judicata in the place where it was pronounced. A judgment is not final and conclusive if the court that pronounced it can rescind or vary it…
The two requirements – that the foreign judgment is final and conclusive, and that it orders the payment of a sum of money- have impeded the enforcement of judgments for periodic payments for support or other similar claims…
The challenges this presented for arrangements for the reciprocal enforcement of support orders has been addressed in legislative regimes specifically tailored to the needs of the law in that area.
[24] Thus it is as a result of the historic unwillingness of courts to enforce support orders from foreign jurisdictions that legislative regimes for interjurisdictional support orders exist in many countries in the world. However, does the fact that the ISOA is available to facilitate the enforcement of support obligations, entail that its process is mandatory, as is argued by the respondent in this case? Section 51 of the ISOA would suggest otherwise:
This Act does not impair any other remedy available to a person, the Province of Ontario, a province or territory of Canada, a jurisdiction outside Canada or a political subdivision or official agency of the Province of Ontario, of a province or territory of Canada or of a jurisdiction outside Canada.
[25] Furthermore, in Ontario, the case of Jasen v. Karassik, 2009 ONCA 245, 95 O.R. (3d) 430 is authority for the proposition that the ISOA process is not the exclusive procedure for every support claim where a respondent resides in another jurisdiction. In Jasen v. Karrassick, O'Connor J. states that:
In the case of interjurisdictional support proceedings, the ISOA does not displace jurisdiction under the FLA; rather, it provides an alternative process.
[26] Can we therefore infer that the applicant in this case has her choice of remedies, notwithstanding that the history of private international law suggests that one remedy may result in an Order which is more difficult to enforce than another? The jurisprudence affecting this case would suggest otherwise.
[27] To begin, we must note that unlike the case at bar, Jasen v Karassik is a case involving a support agreement. In Jasen, the Court of Appeal held that:
…A resident of Ontario may bring an application for support or variation of a support agreement under either the FLA or the ISOA. Applicants who choose to bring a support proceeding under the FLA against a non-resident father are required to effect service ex juris and to show that Ontario has a real and substantial connection to the subject matter of the application. If the applicant is successful, the regime provided in the ISOA may be available to the applicant to enforce the resulting order in a reciprocating jurisdiction. (Par. 56)
[28] At least at the outset this case did not involve an Application for support, nor does it involve a variation of a support agreement. Jasen is distinguishable. What it does involve is an intended variation of a support order made by a foreign court as a corollary to a foreign divorce. On the question of the court's power in these circumstances, Jasen affirms that Rothgiesser v. Rothgiesser, 46 O.R. (3d) 577 sets out the governing legal principles.
[29] Because in addition to being the leading case, Rothgiesser illustrates the perils involved in deciding multi-jurisdictional support cases, I will refer to it in some detail. In Rothgiesser, the parties were married, separated and divorced in South Africa. As part of the divorce judgment, they executed a consent which provided inter alia for child and spousal support (the "South African Order"). An attempt was made to vary the support order in California, but the California court held the support order was "non modifiable." Subsequently, the husband settled in Ontario, and orders were made in Ontario varying the support order. The first of these orders (the "Lang Order") varied custody and child support. The Lang Order was made in the Superior Court, on consent of the parties, in a proceeding commenced under the Children's Law Reform Act.
[30] Several years later the husband successfully applied under the Divorce Act to vary the Lang Order and terminate his obligation to pay spousal support. Child support was no longer before the court. The wife appealed the Order of termination (the "Swinton Order") on the basis that the court lacked the jurisdiction to make the Order.
[31] The Ontario Court of Appeal held that the Lang Order was made without jurisdiction and was a nullity. The consent of the parties could not cloak the court with jurisdiction. With regard to the Swinton Order, the Court held that the Superior Court judge lacked the jurisdiction to vary both the Lang Order and the South African Order. There was no "potential base for jurisdiction" in the Lang Order (a nullity), and no base for jurisdiction in the Swinton Order because:
Under the Act, a Canadian court can only vary a spousal support order made pursuant to a Canadian divorce: there is no jurisdiction in a Canadian court to vary a foreign support order. Jurisdiction to vary a foreign spousal support order may only be derived from provincial legislation respecting enforcement of support orders (in Ontario this is the Reciprocal Enforcement of Support Orders Act, R.S.O. 1990, c. R.7 ("the RESOA"), and any order which purports to do so will be a nullity.
[32] There can be no meaningful distinction between child support orders and spousal support orders under the reasoning in Rothgiesser. Foreign support orders made corollary to foreign divorces cannot be varied under the Canadian Divorce Act.
[33] Is there a "potential base for jurisdiction" in this Court that would permit me to vary the Maryland Order? The only potential base must lie with the Family Law Act or the ISOA. Yet the ISOA has not been invoked, and on a Motion to Change, the Family Law Act does not provide the necessary authority. Section 37 of the Family Law Act, the variation section, is restricted to applications for variation of orders "made or confirmed" under the Family Law Act. The Order here was neither made nor confirmed under the Family Law Act. Section 37 may be contrasted with section 35(2) of the Act, which provides that domestic contracts can be filed and varied under the Act.
[34] Recognizing this difficulty, and reluctant to proceed through the ISOA, the applicant has brought a child support claim in an originating Application under the Family Law Act. As stated in Jasen, the Interjurisdictional Support Orders Act does not bar an applicant from seeking support from an out-of-province respondent under the Family Law Act provided that the court has jurisdiction to hear the claim. See also: Navarro v. Parrish, 2014 ONCA 856, 2014 O.J. No. 5733.
[35] Unfortunately for the applicant, this jurisprudence does not resolve the jurisdictional issue in the case at bar.
[36] Firstly, the applicant's Application is, in essence, a motion to vary the foreign corollary relief order under the guise of a fresh application for support. The underlying legal and factual situation remains the same as in the Motion to Change. Indeed, the Application is explicit on this point: in her Application the applicant seeks a retroactive order. A retroactive order is a variation. On this basis alone, the Court has no jurisdiction to hear the claim.
[37] Secondly, permitting the Application to proceed raises the specter that two support orders might exist, both requiring payment by the respondent. In addition to the rank unfairness to the payor, such an outcome would be contrary to public policy and judicial comity (Sun v. Guilfoile, 2011 ONSC 1685).
[38] I acknowledge there is Ontario jurisprudence holding that an Ontario Court can make an order on an Application notwithstanding the existence of a foreign support order. Kaur v. Guraya, [2011] O.J. No. 2133 (Ont. S.C.J.) is such case. In Kaur v Guraya the parties had divorced in Louisiana and a child support order was subsequently made in Washington. The Washington Order was not made corollary to the foreign divorce which had been adjudicated in Louisiana. The mother subsequently moved to Ontario and applied in the Ontario Superior Court for a custody and support order. The Court held that the fact the court was making a superceding order regarding custody and access enabled it to assume jurisdiction over child support.
[39] Kaur v Guraya is a trial court decision from a court of concurrent jurisdiction, and is not binding on this court. While the reasoning is attractive, it is not persuasive considering the historic difficulties which led to the international acceptance of reciprocal support legislation. Were I to find jurisdiction on the authority of Kaur v. Guraya, a case which, in any event, did not involve a corollary relief support order, I would simply risk the likely outcome that the order from this court would be a nullity, or would be otherwise unenforceable in the foreign jurisdiction.
[40] In the result, I conclude that this court does not have the jurisdiction to either vary or supercede the Maryland order, nor to make a fresh order in the face of the Maryland Order. As the Court states in Rothgiesser, jurisdiction to vary a foreign support order may only be derived from provincial legislation respecting enforcement of support orders. That legislation is the ISOA. The applicant must proceed with her claim through the ISOA.
[41] Prior to releasing this judgment, I asked the parties to address me on the question of "continuing exclusive jurisdiction". Continuing exclusive jurisdiction, as set out in the UIFSA, provides that when a particular court has acquired jurisdiction to determine child support and custody, it retains authority to amend and modify its orders. This doctrine ensures that only one state will have the jurisdiction to vary an order at any time. Although the Maryland Court has continuing exclusive jurisdiction over the Orders in this case, the parties are agreed that by virtue of the fact that neither the parties nor the child are resident in Maryland, the Maryland Court will not exercise this jurisdiction. It is expected that the Florida Court will assume jurisdiction under the reciprocal enforcement legislation.
Orders
[42] In the result, I am making the following orders:
The Motion to Change insofar as it relates to support, and the Application, insofar as it relates to support, are stayed, and the applicant must pursue her claim under the ISOA;
Both parties will co-operate in an expeditious fashion with the ISOA process, and neither party will delay or frustrate the ISOA process, either by acts of omission or commission.
It is agreed and acknowledged by the parties, and found as a fact by this court, that neither the parties nor the child are ordinarily resident in Maryland, that the applicant mother and the child are ordinarily resident in Ontario, and that the respondent father is ordinarily resident in Florida. The parties will execute any documents required by the Maryland Court to evidence their residence as set out herein, and their agreement that the Florida Court exercise jurisdiction under the applicable reciprocal enforcement legislation to modify the existing child support order.
It is expected that the applicant's support variation application commenced in Ontario will proceed under the applicable reciprocal enforcement legislation in Florida, given that the respondent ordinarily resides in Florida. The parties will provide consents/agreements to transfer the file to Florida as may be necessary in the event an issue arises as to the continuing exclusive jurisdiction of the Maryland Court.
If either party is seeking costs of these motions, or for any appearance on which costs were reserved but not adjudicated, may I please receive all written submissions in one document within 30 days.
Released: June 22, 2015
Justice M. L. Cohen
[1] A judgment otherwise final is not the less so because it may be the subject of an appeal…