Court File and Parties

Court File No.: DR-51904-10 Date: 2012-04-30

Ontario Court of Justice

Toronto North Family Court

Between:

Sylwia Karina Morawska Szostek No one appearing, for the Applicant

Applicant

- and -

Dominik Stefan Szostek Jacek Mikolajko, for the Respondent

Respondent

Heard: April 25, 2011

Justice: S.B. Sherr

Reasons for Decision

Part One - Introduction

[1] This case deals with the applicant's claim for child support against the respondent for her child, Katarzyna (the child), born on […], 1995.

[2] The case before me began by the respondent moving to set aside the registration of two child support orders, the first dated May 26, 1998, that was made by the District Court, Family and Juvenile Division of the Republic of Poland, and the second, a Divorce Judgment dated November 26, 2001, made by the Regional Court Civil Division Branch in Rybnik, in the Republic of Poland. Both of these orders provided that the respondent pay child support to the applicant for the child in the sum of $168.88 per month (Canadian dollars), starting from March 1, 1997. The second order essentially confirmed the first support order. These orders were both registered in this court on August 26, 2010 pursuant to the Interjurisdictional Support Orders Act, 2002 (the Act).

[3] On June 16, 2011, I set aside the registration of these orders because the respondent did not have a reasonable opportunity to be heard in either case in Poland [1] (See: Szostek v. Szostek, 2011 ONCJ 663).

[4] Pursuant to subsection 21 (1) of the Act, the next step was for this court to treat the matter as if it was an original support application pursuant to paragraph 2 of section 9 of the Act.

[5] The respondent asks that no order of support be made against him. He denies that he is the child's biological father and is not obligated to support the child. In the alternative, he claims that his income is below the level required for any support to be paid pursuant to the Ontario Child Support Guidelines (the guidelines).

[6] The issues for this court to decide are:

a) Entitlement to child support.

b) If entitlement to child support is established, should retroactive support be ordered?

c) If entitlement to child support is established, what amount of support should be ordered (and should income be imputed to the respondent for the purpose of calculating his support obligation)?

[7] The respondent requested and was granted an oral hearing of this application pursuant to sub-rule 37 (9) of the Ontario Family Law Rules. The court read three affidavits served and filed by the respondent and documentation received from the President of the Regional Court in Gliwice, Poland (the Regional Court) and heard oral evidence from the respondent.

Part Two - Background

[8] The respondent is 38 years old. He was born in Poland. He has a grade 12 education. He moved to Canada in 1994 and is a landed immigrant.

[9] The respondent deposed that he dated the applicant in Poland for many years "on and off" in the early 1990's. He claims that they did not cohabit. He deposed that they were apart in 1994 during the time that the child could have been conceived. He claims that they dated again briefly, from the middle of July of 1994 until August 22, 1994, at which time he moved to Canada.

[10] The respondent deposed that he travelled to Poland in April of 1995 (after the child was born) and married the respondent on September 30, 1995. He said that the parties separated within a month and he returned to Canada. He stated that he has lived in Canada since that time and has never reconciled with the applicant.

[11] The respondent deposed in his first affidavit, sworn on October 6, 2010, that he was not seeing the applicant during the time that the child would have been conceived. He stated that the applicant was dating Piotr Morawski (her current husband) during that time.

[12] The parties were divorced by the Polish court on November 26, 2001.

[13] The respondent has not had a relationship with the child since he returned to Canada in October of 1995. He deposed that he wasn't asked to pay child support until he received the Notice of Registration of the Polish orders on September 15, 2010.

[14] The respondent remarried on April 26, 2005. He lives in Toronto with his wife and their two children who are 4 and 14 years old.

[15] The respondent is self-employed in construction. He deposed that he earned slightly under $5,000 in 2011. His wife is a superintendant at their apartment building. The respondent testified that she earns about $11,000 per annum.

[16] The court has no information about the applicant's or the child's circumstances despite requests made for information to the applicant and the designated authority in Poland.

Part Three – Procedural History

[17] Based on the respondent's evidence that he did not have a sexual relationship with the applicant at the time the child was presumably conceived, that he operated under the belief that he wasn't the child's father, that he was never asked for child support and had no knowledge of any request for support until September 15, 2010, I found on June 16, 2011 that the issue of parentage had not been dealt with by a court of competent jurisdiction. [2] I made a detailed order for DNA testing. I also asked the designated authority in Ontario [3] to seek the following information from the applicant or the designated authority in Poland:

a) Information concerning the law of Poland with respect to the child's entitlement to support, which this court is directed to first apply under paragraph 1 of section 13 of the Act.

b) Any response by the applicant to the respondent's affidavit.

c) Evidence that supports the respondent's being the child's biological father.

d) Evidence that the applicant relies upon to establish that the child is entitled to support from the respondent, whether under Polish or Ontario law.

e) Evidence as to when support was first requested from the respondent and subsequent efforts by the applicant to obtain support from him.

f) Evidence of the applicant's financial circumstances since 1997.

g) Evidence about the circumstances of the child since 1997, including details of any prejudice that the child may have suffered due to not receiving any support from the respondent.

[18] This court subsequently received material from the President of the Regional Court. [4] The President of the Regional Court stated that the respondent signed a declaration on May 16, 1995 that he was the child's biological father pursuant to Article 79 of the Polish Family and Guardianship Code (the Code). This acknowledgement was made in front of the Head of the Registry Office. A full copy of the birth certificate confirming this was attached to the President's letter. [5]

[19] The President of the Regional Court wrote that this acknowledgment means that the respondent is deemed to be the biological father of the child under Polish law.

[20] The President of the Regional Court went on to explain that in accordance with Article 80 paragraph 1, of the Code:

A man who acknowledged a child is entitled, within one year since his acknowledgement, to file for invalidity of his declaration.

[21] The President of the Regional Court wrote that this many years after the acknowledgement, there is no legal possibility under Polish law, for the respondent to avoid his responsibility – this right is reserved for the child. He also stated that Polish law does not allow the performance of DNA testing, except when following the procedure to invalidate the acknowledgement.

[22] The President of the Regional Court cited a case from the Supreme Court in Poland, dated February 14, 1969 (ref. symbol of files I Cr. 570/69-OSNCP 1969, item 186), in which the court states:

The circumstances that, a man who acknowledged a child, is not its biological father, does not invalidate the acknowledgement, but only may be a ground for invalidation by the entitled person, indicated in articles 81 and 86 of the Family and Guardianship Code….

[23] The matter returned before me on December 22, 2011. The respondent filed evidence disputing that the Polish law was as stated by the President of the Regional Court. I adjourned the case with the following directions:

a) The designated authority in Ontario was asked to contact the designated authority in Poland and obtain the following information:

1. A certified translation of the applicable law in Poland.

2. A certified translation of a Supreme Court Case ruling made on February 14, 1969, referred to in the most recent material from the Regional Court.

3. Any other evidence establishing the case law in Poland.

4. Any response by the applicant to the respondent's evidence.

5. Evidence as to when support was first requested from the respondent and subsequent efforts by the applicant to obtain support from him.

6. Evidence of the applicant's financial circumstances since 1997.

7. Evidence about the circumstances of the child since 1997, including details of any prejudice that the child may have suffered due to not receiving any support from the respondent.

b) That the respondent serve and file the following information:

1. Certified translations of the Polish statutory and case law with respect to entitlement to support relied upon – not just excerpts from articles or cases.

2. A sworn financial statement.

3. Copies of his 2010, 2009 and 2008 Notices of Assessment.

4. His last T4 statement from 2011.

[24] This court did not receive any further information from Poland. The respondent prepared and filed with this court his last three income tax returns. He has not yet received his Notices of Assessment from Revenue Canada. [6] He is self-employed and does not receive T4 slips. He filed certified translations of portions of the Code and a case from Poland that he relied upon with respect to the child support entitlement issue.

Part Four – The Respondent's Response to Information from the Regional Court

[25] The respondent served and filed two additional affidavits and gave oral evidence addressing the information received from the Regional Court.

[26] The respondent admitted that he had signed the acknowledgement of parentage in Poland when the child was born. He had neglected to advise the court about this important fact when he filed his original affidavit.

[27] The respondent deposed that he had believed that he was the child's father and that is why he had signed the acknowledgement of parentage. He claimed that he only questioned parentage when his sister brought the timing of the child's conception to his attention two years later. He agreed that he had taken no steps to set aside the acknowledgement of parentage, even after he suspected that he was not the child's biological father.

Part Five – Entitlement to Child Support

5.1 Applicable Law

[28] The respondent submits that the child is not entitled to support because he is not the child's biological father. In the alternative, he argues that the law of Poland is against public policy in Ontario and should not be applied by this court.

[29] In determining entitlement to support, this court must first look to the law of Poland. Paragraph one of section 13 of the Act reads as follows:

13. Choice of law rules. — The following rules apply with respect to determining entitlement to support and the amount of support:

1. In determining a child's entitlement to support, the Ontario court shall first apply the law of the jurisdiction in which the child ordinarily resides, but if the child is not entitled to support under that law, the Ontario court shall apply Ontario law.

[30] While I would have preferred to have certified translations of the legislation and case law referred to by the Regional Court, I find that it still was the best evidence before me about the law of child support entitlement in Poland.

[31] The respondent attached certified translations of various Articles of the Code, but did not include the Articles referred to by the Regional Court (Articles: 79, 80, 81 and 86). The respondent, despite having the opportunity, did not dispute the Regional Court's explanation about the legislative provisions in Poland.

[32] The respondent did cite one case from the Superior Court in Poland, Miecczyslaw S. v. Anna S. and Przemyslaw S., I CR/204/81 (Supreme Court of Poland), that differed from the case presented by the Regional Court in Paragraph 22 above. This was an appeal of a lower court decision where the child had applied for child support. The appellant applied for invalidation of his declaration of paternity on the basis that he mistakenly thought that he was the only person having sexual relations with the mother when the child was conceived. The lower court dismissed the appellant's application stating that this was not a basis for disputing paternity. The appeal court disagreed and found:

If a person erroneously believes that he is the child's father, in particular based on the conviction that only he had sexual relations with the mother during the conception period, this amounts to an error and constitutes a basis for the invalidation of the recognition of fatherhood.

[33] The appeal was dismissed on the basis that the appellant couldn't prove that he had a mistaken belief that only he had sexual relations with the mother.

[34] Even if I were to accept that the case presented by the respondent potentially provides him with a pathway to invalidate his acknowledgement of parentage under Polish law, I find that it is not appropriate to do so in this case.

[35] I did not find the respondent's evidence to be credible. He neglected to advise the court that he had signed the acknowledgement of paternity in Poland – a significant omission. I do not accept the respondent's evidence that he did not have sexual relations with the applicant during the time the child was conceived, or that this possibility did not occur to him until two years after the child was born. I find it unlikely that he would have executed the acknowledgement of paternity if he had not been having sexual relations with the applicant during the time that the child was conceived.

[36] The respondent's credibility was further undermined by his statement in his first affidavit that he had no knowledge that the applicant was seeking child support until he was served with the Notice of Registration of the court orders from Poland in September of 2010. [7] This statement was proven to be untrue when the respondent acknowledged that his sister had sent him a copy of the Divorce Judgment from Poland in 2005 in order that he could obtain a marriage license in Canada. The Divorce Judgment (a copy was filed with the court) clearly set out the respondent's child support obligation. The respondent knew or ought to have known about the existence of his child support obligation. The respondent could not adequately explain this apparent contradiction in his evidence.

[37] I find that the child is entitled to support pursuant to the law of Poland.

5.2 Public Policy

[38] I turn next to the respondent's argument that this court should find that the law of Poland is contrary to public policy in Ontario, as any law that precludes him from arguing that he is not the child's biological parent (and not responsible for paying child support) is not just and should not be applied by Canadian courts. I am not prepared to make this finding.

[39] The Interjurisdictional Support Orders Act came into force in 2002. It was the product of an effort to establish a uniform method and system for parties seeking to obtain, to challenge or to vary child or spousal support orders issued where the parties resided in different jurisdictions. The key to workable reciprocity is having jurisdictions with substantially similar laws about support that agree to recognize and honour the support orders made by each other.

[40] The court should give careful consideration before deciding that something is contrary to public policy, particularly in the area of conflict of laws. See Block Bros. Realty Ltd. v. Mollard; Samis (Guardian of) v. Samis, 2010 ONCJ 500.

[41] The order for DNA testing that I made on June 16, 2010 was based on the preliminary evidence of the respondent which has turned out to be inaccurate and incomplete. I would not have exercised my discretion to make that order based on the evidentiary record before me today.

[42] The Regional Court set out that the child support orders made in Poland were premised on the respondent's acknowledgement of paternity. There was no further need for this court to determine paternity pursuant to section 12 of the Act. The respondent acknowledged he was the child's father, claims to have suspected there was a paternity issue by 1997, never moved to invalidate this acknowledgement, did not advise this court about this important fact, knew about his support obligation in 2005 and took no steps to dispute paternity at that time. He put his head in the sand hoping that the applicant wouldn't catch up with him. The respondent's appropriate remedy was to bring an application in Poland to set aside his acknowledgement of paternity, first when he claims that he suspected that he wasn't the child's father (in 1997) and at the very latest, when he learned about the Polish child support order in 2005. It is too late now to revisit this issue.

[43] Further, the Polish law is not dissimilar to section 8 of the Children's Law Reform Act (Ontario), where there is a presumption that a male person is a parent of a child where he certifies the child's birth, as the father, pursuant to the Vital Statistics Act (Ontario). If such a person subsequently disputes paternity, the court has discretion over whether to order DNA testing under section 10 of the Children's Law Reform Act. The respondent does not have an automatic right to obtain such testing. It is not against public policy in Ontario for the Polish court to rely upon the respondent's acknowledgement of parentage and to take the position that it is now far too late to ask for DNA testing.

Part Six – Retroactive Child Support

[44] Paragraph 3 of section 13 of the Act provides that Ontario law is to be applied when assessing the amount of support. This paragraph reads:

Section 13:

3. In determining the amount of support for a child or for the claimant, the Ontario court shall apply Ontario law.

[45] The Supreme Court of Canada in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, outlined the factors that a court should take into account in determining retroactive support applications. Briefly, there are four points that the court raised:

1. Reasonable excuse for why support not considered earlier.

2. Conduct of the payor parent.

3. Circumstances of the child.

4. Hardship occasioned by the retroactive order.

[46] Where ordered, an award should generally be retroactive to the date when the recipient gave the payor effective notice of his or her intention to seek support payments; this date represents a fair balance between certainty and flexibility (D.B.S. par. 5).

[47] Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done the payor can no longer assume that the status quo is fair (D.B.S. par. 121).

[48] Once the issue is raised, the recipient must still be responsible in moving the discussion forward. If he or she does not, legal action should be contemplated. A prolonged period of inactivity after effective notice may indicate that the payor's reasonable interest in certainty has returned. Thus, even if effective notice has already been given, it will usually be inappropriate to delve too far into the past. (D.B.S. par. 123).

[49] This court finds that the respondent had effective notice of the applicant's claim for support by (at the very least) early in 2005 - this is when he would have received the Divorce Judgment from Poland.

[50] I have sympathy for the applicant in her attempts to pursue her support claim. She applied to court in Poland in 1998 for child support, followed their court process and obtained support orders. The applicant was at the mercy of the inter-jurisdictional process, which, as this case has demonstrated, can be slow and cumbersome. However, despite requests to the applicant and the designated authority in Poland, this court wasn't provided with satisfactory information about why it took so long for the applicant to seek enforcement of the Polish support orders in Canada. The parties corresponded with one another after the respondent came to Canada. The respondent has lived in Toronto since 1997 and could have been located with reasonable effort.

[51] The respondent has engaged in blameworthy conduct. I find that he was aware of his child support obligation, as set out in the Poland Divorce Judgment, as early as 2005. He never paid child support and took no steps to address the Poland order. Rather, it is apparent that he hoped that the authorities would never catch up to him. He preferred his own interests to those of the child.

[52] The court received no information about the circumstances of the child despite requests to the applicant and to the designated authority in Poland.

[53] As will be set out in more detail below, the respondent is of modest means. He has two other children to support. A substantial retroactive award will cause him hardship.

[54] Balancing all of these factors, this court finds it appropriate to make a retroactive order beginning as of October 1, 2007. [8] An affordable monthly repayment plan will be ordered for the respondent. Once the child is no longer entitled to child support, the arrears payment will be increased.

Part Seven – The Respondent's Income

[55] The respondent testified that he has worked in construction and home renovations since he came to Canada. He said that he has experience in demolition work, painting, drywalling, and tile installation. He testified that he worked as a sub-contractor for Walters Renovation for 12 years, but this arrangement ended at the end of 2011.

[56] The respondent testified that he is now working for himself, doing the same type of home renovation work that he had performed before. He says that he has worked in 2012, but when asked, could not provide the court with any specifics of work he has done or income he has earned this year. [9]

[57] The respondent admitted that he has not made any job applications in 2012.

[58] The respondent filed income tax returns for 2009-2011, claiming gross and net income as follows:

Year	Gross Income	Net Income
2009	$26,335	$4,879
2010	$29,352	$10,804
2011	$27,132	$11,495

[59] Section 19 of the Guidelines reads as follows:

19. Imputing income. — (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;

(b) the parent or spouse is exempt from paying federal or provincial income tax;

(c) the parent or spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

(d) it appears that income has been diverted which would affect the level of child support to be determined under these guidelines;

(e) the parent's or spouse's property is not reasonably utilized to generate income;

(f) the parent or spouse has failed to provide income information when under a legal obligation to do so;

(g) the parent or spouse unreasonably deducts expenses from income;

(h) the parent or spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and

(i) the parent or spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

(2) Reasonableness of expenses. — For the purpose of clause (1)(g), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act (Canada).

[60] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. See: Drygala v. Pauli.

[61] A self-employed person has the onus of clearly demonstrating the basis of his or her net income. This includes demonstrating that the deductions from gross income should be taken into account in the calculation of income for support purposes. See Whelan v. O'Connor.

[62] The respondent had difficulty explaining many of the expense items claimed in his statement of business activities attached to his 2011 income tax return. It quickly became apparent to the court that he was mixing personal and business expenses, such as phone and vehicle expenses, in his statement of business activities.

[63] The respondent's stated income made little sense. There is no way that a family of four could survive on his stated income and his wife's annual income of $11,000. The respondent's budget, set out in his financial statement, significantly exceeded the reported income of the family. [10] It also makes no sense that someone with the respondent's skill set would continue to work at such minimal remuneration. When assessing his credibility, I considered that the respondent denied knowledge of the Poland support order when he was or should have been aware of it in 2005 and his failure to advise the court about signing an acknowledgement of paternity in his original material. I find that there is little, if any, reliability in the financial information provided by the respondent. While I accept that the respondent is of modest means, it is also apparent that he has been earning sufficient income to support his family since 2005.

[64] This leaves the court with determining what income to impute to the respondent. The respondent provided no reason (such as a medical reason) as to why he couldn't work on a full-time basis. When determining what income to impute to a payor, the court must have regard to the payor's capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living earned during the parties' relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson.

[65] The respondent has a number of skills. He has experience in a number of the construction trades. He is healthy. His age is not an impediment to working in this field. He has always supported his current family. I find that he is earning or is capable of earning $28,000 per annum. This is approximately the average amount that he claims that he has grossed in the past three years. This income will be imputed to him for support purposes from the start date (October 1, 2007) of his support obligation.

[66] The table amount of child support under the guidelines based on annual income of $28,000 prior to 2012 was $246 per month. The table amount starting January 1, 2012 is $228 per month.

[67] This order will automatically create substantial support arrears for the respondent, calculated as follows:

Period	Calculation	Amount
October 1, 2007 - December 31, 2011	51 months at $248 per month	$12,648
2012	4 months at $228 per month	$912
Total Arrears		$13,560

[68] The respondent will be permitted to repay the arrears at the rate of $50 per month on the first day of each and every month, starting on June 1, 2012. However, if he is more than 30 days late on any ongoing support payment, or arrears payment, the entire amount of arrears shall immediately become due and payable.

[69] The applicant is to immediately notify the respondent and the Family Responsibility Office in Ontario when the child is no longer entitled to support. At that point, the arrears payments shall increase to $250 per month, on the first day of each and every month, until they are repaid.

Part Eight – Termination of Support

[70] The court does not usually affix termination dates to child support orders (although they are sometimes included in consent orders) and generally places the onus on payors to come back to court if the recipient will not agree that child support should be terminated. Entitlement to child support for adult children is complicated and a variety of factors can impact on how to deal with these cases. However, the circumstances of this case have convinced me that it is appropriate to make an exception to this approach.

[71] Despite being given many opportunities, the applicant never responded to requests for information made by this court. The court only received the one response from the Regional Court despite making several requests for information to the designated authority in Poland. The child will be turning 18 in 2013. [11] This court has little confidence that the respondent will be advised about when the child is no longer entitled to support unless some positive obligations to provide this information are made by this court. This could result in an unjustified overpayment of support. This said, I recognize that there are communication difficulties between the two jurisdictions and I don't want to create obstacles to the applicant's collection of child support, particularly when it has taken her so long to finally catch up to the respondent. This order will create simple obligations for the applicant to fulfill.

[72] Starting in 2013, and each year after that, the applicant, or the designated authority in Poland, will be required to deliver a letter to the designated authority in Ontario, after September 1st and no later than December 31st, confirming that:

a) The child is regularly attending school and

b) The child is still being supported by the applicant.

[73] If the designated authority in Ontario does not receive this letter by December 31st in any year, support shall terminate.

[74] In any event, child support shall terminate when the child reaches 24 years of age, unless the applicant obtains an order extending this time limit.

[75] The respondent is not precluded from using the variation procedures in the Act if he feels that, notwithstanding any letter received from the applicant or the designated authority in Poland, the child is no longer entitled to support under Polish law.

Part Nine – The Order

[76] A final order shall go on the following terms:

a) There is a finding that the respondent owes the applicant child support arrears in the sum of $13,560, as calculated in paragraph 67 of these reasons for decision.

b) The respondent shall pay the applicant child support in the sum of $228 per month on the first day of each and every month starting on May 1, 2012. This is based on an income imputed to him of $28,000 per annum.

c) The respondent will be permitted to repay the arrears at the rate of $50 per month on the first day of each and every month, starting on June 1, 2012. Once the child is no longer entitled to support, the arrears payments shall be increased to $250 per month. If the respondent is more than 30 days late on any ongoing support payment, or arrears payment, the entire amount of arrears shall immediately become due and payable.

d) The applicant shall immediately notify the respondent and the Family Responsibility Office in Ontario when the child is no longer entitled to child support.

e) Starting in 2013, the applicant, or the designated authority in Poland will be required to deliver a letter to the designated authority in Ontario - the Interjurisdictional Support Orders Unit of the Family Responsibility Office, after September 1st and no later than December 31st, confirming that:

i) The child is regularly attending school and

ii) The child is still being supported by the applicant.

f) If the designated authority in Ontario does not receive the letter referred to in subparagraph (e) by December 31st in any year, support shall terminate as of that date.

g) Child support shall terminate when the child reaches 24 years of age, unless it is terminated earlier under clause (f) above or unless the applicant obtains an order extending this time limit.

h) The respondent is not precluded from using the variation procedures in the Act if he believes that, notwithstanding any letter received from the applicant or the designated authority in Poland, the child is no longer entitled to support under Polish law.

i) Nothing in this order precludes the Family Responsibility Office in Ontario from collecting support arrears from any government source (such as income tax or sales tax refunds) or any lottery or prize winnings.

j) A support deduction order shall issue.

[77] Lastly, I thank counsel for the respondent for his professional presentation of this case.

Justice S.B. Sherr

Released: April 30, 2012

Footnotes

[1] This court has made requests that the designated authority in Poland provide evidence that the respondent was served with notice of either of the two cases in Poland. No evidence of service has ever been provided.

[2] I also considered that neither the applicant nor the designated authority in Poland responded to this court's request for information and did not contradict the respondent's evidence.

[3] The designated authority in Ontario is the Interjurisdictional Support Orders Unit of the Family Responsibility Office.

[4] This material was in the form of a letter addressed to me from the President of the Regional Court, with attachments. The letter and the attachments were translated from Polish to English. The information was not in the form of sworn evidence and I have taken that into consideration in making this decision. The letter also contained argument and statements about the respondent's character by the President. I gave no weight to these statements.

[5] The respondent had only attached an abridged form of the child's birth certificate in his original material presented to this court. This form did not include the respondent's acknowledgement of paternity.

[6] The respondent stated that he had not prepared or filed any income tax returns prior to this court's direction to file copies of them. He has only recently filed them with Revenue Canada.

[7] He maintained this position up until the oral hearing.

[8] This constitutes three years of retroactive support as the respondent was served with the Notice of Registration of the Polish orders on September 15, 2010.

[9] He claimed in his financial statement that he is presently earning $3,678 per annum.

[10] It was interesting to see that the respondent claims that he has alcohol/tobacco expenses of $1,800 per annum. This is about 50% of his current stated annual income.

[11] This court received no information about when entitlement to support for a child in Poland might end.