COURT OF APPEAL FOR ONTARIO DATE: 20220224 DOCKET: C69816

MacPherson, van Rensburg and Roberts JJ.A.

BETWEEN

Interjurisdictional Support Orders Unit Director, Family Responsibility Office for the benefit of Catarina Elisabet Krause Applicant/Respondent (Appellant)

and

Hassan Bougrine Respondent/Appellant (Respondent)

and

Catarina Elisabet Krause Respondent/Respondent (Respondent)

Counsel: Heather Puchala and Michelle Douglas-Cummings, for the appellant Dhiren R. Chohan and Matthieu M. Butler, for the respondent Catarina Krause, acting in person

Heard: January 27, 2022 by video conference

On appeal from the judgment of Justice R. Dan Cornell of the Superior Court of Justice, dated August 10, 2021 and reported at 2021 ONSC 5269, allowing the appeal from the judgment of Justice Andre L. Guay of the Ontario Court of Justice dated May 29, 2019 and the final order dated October 19, 2020.

MacPherson J.A.:

A. Introduction

[1] This appeal involves a payor (or, more accurately, a non-payor) who resides in Ontario, a recipient of child support for her two children who resides in Finland, and the Interjurisdictional Support Orders Unit (“the ISO Unit”) which is pursuing the appeal for the benefit of the support recipients.

[2] The ISO Unit of the Family Responsibility Office administers Ontario’s Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13 (“ISO Act”), which streamlines the process for obtaining, varying and enforcing support orders involving one party who lives in Ontario and one party in a reciprocating jurisdiction. Once an order has been registered, established, or varied using the ISO Act, it can be filed with the Family Responsibility Office (“FRO”) for enforcement. The FRO will then enforce such an order the same way it would enforce an Ontario order.

[3] The central issue on the appeal is whether an Ontario court can make a support order when one already exists in Finland. More specifically, the appeal concerns the jurisdiction of the Ontario Court of Justice to hear a support application and make a support order pursuant to the ISO Act in circumstances where the registration for enforcement of a foreign support order from a reciprocating jurisdiction (Finland) has been set aside by an Ontario court.

B. Facts

(1) The parties and events

[4] Hassan Bougrine and Catarina Krause were married in Finland in 2003. They divorced in 2004. There are two children from their relationship, a son and a daughter.

[5] Bougrine has resided in Ontario since 2007. He has been a professor at Laurentian University and was Chair of the Commerce Department.

[6] Krause has resided in Finland and raised the two children there except for a 14-month period in 2012-2014 when Bougrine abducted the children to Morocco.

[7] In 2010, the District Court of Varsinais-Suomi in Finland awarded custody of the two children to Krause and made a support order requiring Bougrine to pay child support of 350 Euros per month per child (the “Finnish Order”). In 2011, the Finland Turku Court of Appeal dismissed Bougrine’s appeal from this decision.

[8] For a brief period in 2009 and 2010, Bougrine paid child support of 260 Euros per month per child. From 2010 until a temporary support order was made in Ontario in June 2019, he paid no child support.

[9] Finland is a reciprocating jurisdiction for the reciprocal enforcement of support orders with Ontario, pursuant to the ISO Act and Ont. Reg. 53/03 – Reciprocating Jurisdictions. Consequently, Finnish support orders can be registered for enforcement in Ontario pursuant to Part III of the ISO Act.

[10] In 2014, the ISO Unit received a letter from the Minister of Justice in Finland requesting the registration of the Finnish Order and the 2011 appeal Order in Ontario for enforcement against Bougrine and claiming support arrears of 32,929.32 Euros as of September 17, 2014.

[11] The ISO Unit sent the orders to the Ontario Court of Justice for registration for enforcement in Ontario under s. 18 of the ISO Act. The orders were registered on December 24, 2014 and a Notice of Registration of Order was served on Bougrine.

[12] Pursuant to s. 20(2) of the ISO Act, Bougrine brought a motion in the Ontario Court of Justice to set aside the registration for enforcement in Ontario of the 2010 and 2011 Finnish Orders.

[13] In support of his motion, Bougrine deposed in his affidavit that he intended to move to Morocco soon and that he had not received notice of the Finnish proceedings that led to the 2010 Finnish Order. On March 9, 2015, the motion judge set aside the registration of the Finnish Order on the basis that Bougrine did not have proper notice or a reasonable opportunity to be heard in relation to the foreign proceedings that led to the Finnish Order.

[14] As it turns out, much of the material in the Bougrine affidavit submitted on the motion was false. As explained by Cornell J. six years later in his decision in these proceedings:

Mr. Bougrine was personally served with the originating Finnish application, was present during those proceedings and had the benefit of legal counsel. Unhappy with the result of those proceedings, Mr. Bougrine appealed. His appeal was unsuccessful. How could it possibly lie in the mouth of Mr. Bougrine to allege that he had no notice of those proceedings when he filed an appeal?

It is also clear that Mr. Bougrine misled the court by suggesting that he obtained custody of the children on February 10, 2009, from a court in Morocco. The record before me discloses that no such order was ever made. Mr. Bougrine further misled the court by suggesting that he was “temporarily in Sudbury for employment and that his permanent residence was in Morocco”. This is patently false. Mr. Bougrine had worked at Laurentian University as a full-time professor since 2007. He was the Chair of the University’s Commerce Department. The record before me indicates that Mr. Bougrine has had a driver’s licence in Canada since 2007 and that he owns real property in Canada.

Given this background, it is clear that the order made by Lische J. to set aside the registration was based upon an incomplete record and the misleading information that was provided by Mr. Bougrine. Had the correct information been before the court, it is clear that Mr. Bougrine’s efforts to set aside the registration would have failed.

[15] In 2018, the ISO Unit learned that Bougrine in fact continued to live and work in Ontario. The ISO Unit commenced proceedings in the Ontario Court of Justice seeking support for the children in accordance with s. 21 of the ISO Act.

(2) The court proceedings and judicial decisions

(a) Ontario Court of Justice

[16] The ISO Unit’s motion for child support for Krause came before Guay J. in 2019. Because the registration of the Finnish Order had been set aside, the motion was brought under s. 21 of the ISO Act, which provides:

21(1) If the registration of an order made in a reciprocating jurisdiction outside Canada is set aside under section 20, the order shall be dealt with under this Act as if it were a document corresponding to a support application received under paragraph 2 of section 9 or a support variation application received under paragraph 2 of section 32.

[17] The motion judge addressed the circumstances that led to the registration of the Finnish Order being set aside on a motion brought by Bougrine in 2015:

As it turned out, the information given to the court by the respondents was misleading. There was nothing transitory about his employment at Laurentian University. The respondent had actually worked there as a full-time professor since 2007. The evidence indicated that not only was the respondent a full-time professor at Laurentian University, but further that he was actually the Chair of the University’s Commerce Department.

It is reasonable to infer from what the respondent told the court on the motion to set aside registration that his arguments were designed to mislead the court and to defeat the applicant's claim to enforcement of her child support order years after that order had been made.

[18] The motion judge then moved on to explain how s. 21 would operate, after the Ontario registration of the Finnish Order was set aside. He stated:

Notwithstanding these facts and what can be reasonably deduced from them, it is clear that the registration of the June 8, 2010 Finnish order was set aside by the Ontario Court in Sudbury on March 9, 2015. This court is not an appeal court. The order setting aside registration was not appealed by the Director of Family Responsibility. As a result, the decision of the Ontario Court must stand. By virtue of section 21(1) of the ISO Act, 2002, S.O. 2002, c.13, when an order of a reciprocating jurisdiction has been set aside under section 20 of the Act, the order shall be treated as a support application under section 9 of the Act. This is what triggered the Director's motion for enforcement to be returned to this court. The enforcement procedures brought on behalf of the applicant by the Director of Family Responsibility/lSOA Unit had only been allowed to lapse because of the false information provided to this court respecting his permanent departure from Canada. This court was entitled to revisit the matter anew upon being requested by the Director to do so on information the Director had received presumably from the Finnish authorities. [Emphasis in original.]

[19] The motion judge continued, specifically rejecting the argument that the setting aside of the registration in Ontario invalidated the Finnish Order:

I do not read section 21 of the ISOA as invalidating the order whose registration has been set aside. Rather, I interpret this section of the Act as creating a mechanism for avoiding the need to commence a new child support application. Setting aside registration of a foreign child support order for reasons of alleged improper service on a party or because a party alleges that he has not been given a reasonable opportunity to respond to the application giving rise to the order should not mean that the order is thereby rendered invalid, particularly when there is no reliable proof that such allegations are true and where, as in this case, that order has been upheld by an appeal court in the jurisdiction where it was made. It seems all too easy for a person opposed to registration of a foreign child support order to throw up meritless obstacles to its enforcement as seems to have happened in the present case. The ability to set aside [registration of] a presumptively valid foreign support order (ISOA operates on this basis) on the uncorroborated evidence of a person whose financial interests are likely adversely affected by that order is, I believe, a weakness in the enforcement procedure established by ISOA. [Emphasis added.]

[20] Finally, with respect to Bougrine’s argument that, in the absence of an existing Ontario court order, the matter should be returned to the Finnish courts where the original 2010 support order was made and is still operative, the motion judge said:

It is illogical to argue that the applicant should be made to bring enforcement proceedings in Finland where the order was first issued and subsequently never complied with. If the respondent finds the present matter before this court, it is because he has worked in Ontario for many years and is still working here. Proceedings related to the enforcement of a valid support order ought logically to take place where the income of a payor can be attached and not in a jurisdiction where his income and assets cannot be attached.

[21] Following the hearing, the motion judge made a temporary support order in June 2019. Then in October 2019, he made a final order with two components: (1) payment of child support of $2,463 per month for the two children commencing in June 2019, based on Bougrine’s Child Support Guideline income of $181,558; and (2) payment of child support arrears fixed at $179,667.20 as of May 1, 2019, payable at $300 per month.

[22] Pursuant to this Order, the FRO assisted with enforcement through a support deduction notice to Laurentian University, Bougrine’s employer, and collected support payments that were then sent to Finland.

(b) Superior Court of Justice

[23] Bougrine appealed the motion judge’s decision to the Superior Court of Justice. Relying heavily on a decision of this court, Cheng v. Liu, 2017 ONCA 104, the appeal judge allowed the appeal and quashed the motion judge’s decision for “want of jurisdiction”.

[24] The core of the appeal judge’s reasoning is:

Section 21 of the ISO Act is, in my opinion, a curious provision in that the court “must treat the foreign order as if it were an application for support”. The learned judge did what the section mandates and proceeded to assess Mr. Bougrine’s total outstanding child support arrears as of May 1, 2019, to be $179,667.20. This was to be repaid at the rate of $300 per month. Based upon an imputed 2019 gross annual income of $181,558, Mr. Bougrine was ordered to pay the sum of $2,463 Canadian for the support of the two children, such payments to commence on June 1, 2019.

In doing so, the court avoids addressing the issue that the result is that there are now two child support orders in existence, one in Finland and one in Canada. The court acknowledges that s. 21 of the ISO Act does not invalidate the Finnish order and proceeds with the application saying in para. 24 “because section 21 of the ISO has the effect of converting the original foreign order of 2010 into an application going forward”. The Ontario proceedings, as the court correctly pointed out, have no bearing whatsoever on the existence and validity of the Finnish court order for child support. In my opinion, the existence of two valid court orders for support is quite problematic.

[25] Following a reference to Cheng v. Liu, a case involving the relationship between the federal Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) and the Ontario Family Law Act, R.S.O. 1990, c. F.3, the appeal judge continued:

In this case, both children were born in Finland and, with the exception of the period of time that they were abducted and taken to Morocco, have always lived in Finland with their mother. The parties were divorced by a Finnish court order. The Finnish court also made an order granting Ms. Krause custody of the children and awarding her child support. As previously set out, Mr. Bougrine’s appeal from this order was dismissed. According to Cheng, this means that the Finnish court has exclusive jurisdiction over child support because such court granted the divorce and issued an order for child support. According to Pageau [Pageau v. Szabo, [1986] O.J. No. 1675], a court acting under a provincial statute would be barred from dealing with the issue of child support in these circumstances.

On the facts of this case, Cheng would also preclude the situation that we have here, namely the existence of two valid child support orders. The ISO Act was created to establish a uniform method and system for the parties seeking to obtain, to challenge or to vary child support orders issued where the parties reside in different jurisdictions. The chaos created by competing child support orders is surely inconsistent with these objectives and can hardly be said to be part of a “uniform system”.

C. Issue

[26] There is a single issue on the appeal: does an Ontario court have jurisdiction under s. 21 of the ISO Act to order child support in the face of a valid but unenforceable (in Ontario) foreign child support order?

D. Analysis

[27] The ISO Act allows for the establishment, variation and enforcement of support orders where one party resides in Ontario and the other party resides in a reciprocating jurisdiction. [1] Support recipients can register domestic or foreign support orders in order to enforce them against residents of Ontario or those who have income or assets in the province. Support recipients can also apply to obtain or vary support orders in Ontario that can then be enforced against the resident of Ontario.

[28] A principal purpose of the ISO Act is to facilitate the enforcement of the support obligations of persons resident in one jurisdiction whose dependants (spousal or child) are resident in another jurisdiction. Reciprocal support enforcement statutes are enacted because of historical difficulties encountered by parties seeking to obtain, vary or enforce a family support order when one party is no longer residing in the jurisdiction where the original order was made. The core scheme of the ISO Act is to establish a fair and workable system for providing support for children and spouses who have a parent or former partner living in a different jurisdiction.

[29] As explained by Attorney General David Young when he introduced the proposed ISO Act in the Ontario Legislature in 2002:

The proposed bill is further proof that we are committed to ensuring that children and families who rely on support payments receive every cent of the amount they are entitled to. Failure to pay child support and spousal support is a social problem; there should be no doubt about that. It is a problem that should and does concern us all. Thousands of families rely on support payments to buy food and other basic necessities, including rent. Without those payments, some families may be forced to live in poverty. They may be forced to turn to food banks and, in some cases, social assistance. This simply shouldn’t be happening. It is simply unacceptable. When children and families do not receive money, or do not receive money in a timely fashion, we all suffer.

Ontario Legislative Assembly, Official Report of Debates (Hansard), 37th Parl., 3rd Sess, No. 30 (23 September 2002), at p. 1497.

[30] Against this backdrop, I turn to consider s. 21 of the ISO Act.

[31] In statutory interpretation, the language of a statutory provision must be interpreted in light of the purpose of the provision and the entire relevant context: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 118.

[32] In my view, the precise language of s. 21 of the ISO Act was triggered by Bougrine’s conduct in this case. He took steps to set aside the Ontario registration of the Finnish support order for his children. He did this under s. 20 of the ISO Act and he was successful; the Ontario registration was set aside, thus removing his obligation, enforceable in Ontario, to provide support to his children.

[33] This result elicited a response from the appellant Interjurisdictional Support Orders Unit. When it became aware that the registration of a valid court support order of a reciprocal jurisdiction (Finland) had been set aside and that the non-paying father still lived and worked in Ontario, contrary to his submission to the Ontario court, it invoked s. 21 of the ISO Act in an attempt to remedy an egregious situation – dishonest obtaining of an Ontario court order and concomitant non-compliance with a valid Finnish court order.

[34] In my view, the steps taken by the Unit were appropriate and the initial decision by Justice Guay granting the relief sought by the Unit was correct. Section 21 of the ISO Act specifically empowers an Ontario court to hear a new support application that takes into account the unenforceable foreign order as well as other information the court considers necessary and to make a new support order.

[35] On appeal, the appeal judge disagreed with Justice Guay’s analysis and conclusion. Central to his reasoning was his view that the decision of this court in Cheng v. Liu, compelled a different answer. I have set out the key passages of the appeal judge’s discussion of Cheng v. Liu in the Facts portion of this judgment.

[36] In my view, Cheng v. Liu does not support the respondent’s position or the appeal judge’s analysis. The issue in Cheng v. Liu was whether an Ontario court had jurisdiction to adjudicate a claim for corollary relief under the federal Divorce Act despite the fact that the parties’ divorce had been validly granted by a foreign court, without providing for corollary relief. The division of powers between the federal and provincial governments was at issue in that case. That is, while the federal government has jurisdiction over marriage and divorce, the province governs matters of property. In this way, the power to award support under the federal Divorce Act is limited to cases where the support is a corollary to the divorce. This court concluded that since the foreign divorce was silent on support, support could be awarded under the Ontario Family Law Act.

[37] Cheng v. Liu recognizes the jurisdiction of the province to legislate in matters of property. After considering, and rejecting, the jurisdiction of Ontario courts to grant corollary relief under the federal Divorce Act after a foreign court has validly issued a divorce decree, the court went on to consider whether an Ontario court had jurisdiction under a provincial law, the Family Law Act, to determine the issue of child support after a foreign court has issued a divorce decree without providing for child support. The court answered this question in the affirmative and said, at paras. 45 and 52:

There is also no statutory prohibition against utilizing the FLA in such circumstances. Indeed, the use of the FLA to provide a remedy is entirely consistent with the statutory objective of ensuring that parents provide support for their dependent children.

Ontario courts have authority to award child support under s. 33 of the FLA. There is nothing in the legislation that restricts that authority in situations where a divorce order has been granted outside of Canada. The use of the FLA in circumstances where relief under the Divorce Act is unavailable does not engage the paramountcy doctrine, as there is no operational incompatibility between the federal and provincial statutes. To the contrary, the two statutes are operating harmoniously to ensure that a remedy for child support is available.

[38] In this case, a different provincial statute, the ISO Act, that is coincident in intent and purpose, explicitly provides for the exact remedy sought. Absent a finding that the specific provisions relied on were unconstitutional, which would have required notice to the Attorney General, it simply was not open to the appeal judge to quash the Order of the Ontario Court of Justice for want of jurisdiction.

[39] I make a final observation. The appeal judge mentioned “the potential for double recovery” as a danger that might arise if the Ontario court had jurisdiction to make a support order in the face of an existing Finnish support order.

[40] For two reasons, with respect, I do not think this is a compelling point.

[41] First, the international support order regime is grounded in cooperation between knowledgeable governments and their agencies that administer the governing laws, treaties and intergovernmental agreements. Under the umbrella of international agreements between cooperating governments, there are government support systems and personnel dedicated to, and experienced in, providing high quality assistance to the enforcement of valid foreign orders, sharing information and avoiding duplication. In short, the potential for double recovery is a red herring.

[42] Second, this case and the vast majority of similar cases point to the real problem. It is not potential double recovery; it is no recovery. The ISO Act, and the people who administer it, are an important provincial, national and international vehicle in the attempt to ameliorate this real problem.

E. Disposition

[43] I would allow the appeal, set aside the Order of the Superior Court of Justice dated August 10, 2021, and restore the Order of the Ontario Court of Justice dated October 19, 2020.

[44] I would award the appellant costs of the appeal fixed at $25,000, inclusive of disbursements and HST.

Released: February 24, 2022 “J.C.M.” “J.C. MacPherson J.A.” “I agree. K. van Rensburg J.A.” “I agree. L.B. Roberts J.A.”

[1] There are substantially similar statutes across Canadian provinces and territories that include a provision the same or similar to s. 21 of the ISO Act.