Court File and Parties

Ontario Court of Justice

Date: 2014-11-20

Court File No.: Halton Region 471/05

Between:

Jennifer Hastings Applicant

— And —

William Bradley Deakin Respondent

Before: Justice Sheilagh O'Connell

Reasons for Decision on Ruling released on November 20, 2014

Counsel:

• Stephen J. McDonald, counsel for the applicant
• Michael Stangarone and Ryan Kniznik, counsel for the respondent
• Michelle Douglas-Cummings, counsel for the Ontario Interjurisdictional Support Orders Unit (ISO Unit)

O'CONNELL J.:

Introduction

[1] The Respondent, William Bradley Deakin ("Dr. Deakin") seeks an order setting aside the registration of the order dated August 22, 2012 of Justice Arthur M. Birken of the Circuit Court of the 17th Judicial Circuit for Broward County, Florida ("the Florida Order").

[2] The issue before the Court is whether the registration of the child support order from the Florida Court should be set aside or confirmed pursuant to s. 20(4)(b) of the Interjurisdictional Support Orders Act, 2002 (the "ISOA").

[3] Dr. Deakin's position is that the registration of the Florida Order should be set aside for a number of reasons, most importantly:

(a) The order is contrary to public policy in Ontario;

(b) Only the Ontario Court has jurisdiction over this matter;

(c) Dr. Deakin was not given proper notice of the Florida proceedings; and

(d) Dr. Deakin's financial circumstances resulted in him not having a reasonable opportunity to be heard in the Florida Court proceedings.

[4] It is not disputed that Dr. Deakin's motion to set aside the registration of the Florida Order was properly brought within the requisite 30 day deadline pursuant to s. 20(2) of the ISOA.

Background

[5] The Applicant, Dr. Jennifer Hastings ("Dr. Hastings"), is a chiropractor, operating her business, the 'Café of Life, Chiropractor and Wellness Centre', in Cooper City, Florida. The Respondent, Dr. William Deakin ("Dr. Deakin"), is also a chiropractor, operating his business, the 'Life Lounge Chiropractic' in Burlington, Ontario. Dr. Hastings is an American citizen and Dr. Deakin is a Canadian citizen.

[6] Dr. Hastings and Dr. Deakin met as students in or around 1998 while they were attending Life University in Marietta, Georgia, United States. They were both studying to gain entry into the chiropractic program at that university. The parties never lived together, however were involved in an intimate relationship. The parties have one daughter, namely Isabelle Angelie Hastings, born October 5, 2001 ("Isabelle"). Isabelle was born in Georgia. She is now 13 years old. Dr. Hastings and Isabelle reside in Florida.

[7] After completing his studies in the United States and becoming a licensed chiropractor, Dr. Deakin moved back to Burlington, Ontario to find employment. He could not work in Canada until November of 2004 after he completed his National Board examinations. He has been working as a chiropractor in Canada since February of 2005 when he started his own chiropractic practice.

[8] Dr. Deakin lives in Burlington, Ontario and is married to Michelle Deakin. They have one child, Connor Deakin, who is three years old. In May of 2013, Dr. Deakin and his wife suffered the loss of their infant child who was stillborn. Dr. Deakin's wife has been on disability leave up until January 2014 of this year as a result. Dr. Hastings has also re-partnered and has no other children. She and Isabelle live in Cooper City, Florida.

[9] Initially, Dr. Hastings brought an application in the California court as Dr. Deakin had moved to California to complete his studies. In that proceeding, Dr. Deakin was identified as the father of Isabelle, however, child support was not ordered as Dr. Deakin was a student at the time and not earning income. The Court in California reserved on the quantum and on the issue of jurisdiction to modify the child support retroactively.

[10] In 2005, Dr. Hastings commenced a court application for child support against Dr. Deakin under the ISOA at the Ontario Court of Justice in Halton Region, where Burlington is located and where Dr. Deakin was residing. Dr. Hastings sought custody, access and child support for Isabelle. The Family Support Registry in Atlanta, Georgia submitted the child support application to the I.S.O. Unit in Ontario for a determination.

[11] On July 28, 2006, the Honourable Mr. Justice Theo Wolder ordered on a final basis that Dr. Deakin pay monthly child support to Dr. Hastings for Isabelle in the amount of $266.00 per month on February 1, March 1 and April 1, 2006, to be increased to $270 per month, commencing May 1, 2006, based on an imputed income to Dr. Deakin of $30,000 per annum in accordance with the Ontario Child Support Guidelines. Justice Wolder also ordered Dr. Deakin to produce his income information by June 1st of each year, commencing June 1, 2007.

[12] It is not disputed that Dr. Deakin has fully met his support obligations under Justice Wolder's order, although Dr. Hastings has stated that Dr. Deakin was repeatedly late in paying the child support pursuant to Justice Wolder's order.

[13] Justice Wolder received evidence and heard submissions on behalf of both Dr. Hastings and Dr. Deakin at the hearing before him on July 28, 2006. It is not disputed that during that hearing, Justice Wolder made it quite clear that Dr. Deakin's child support obligations would be based on the Ontario Child Support Guidelines and not on Florida State laws, where Dr. Hastings was residing with Isabelle.

[14] In 2010, Dr. Hastings started a fresh and separate court action or petition in the State of Florida for increased child support. Dr. Hastings brought a new application for child support in Florida rather than bringing a variation application under the I.S.O. Act, to vary or modify the support order of Justice Wolder in Ontario.

[15] Dr. Hastings' application in the Florida court was entitled "The Petition for Modification of Child Support and Motion for Contempt." Dr. Deakin was personally served with the petition for child support and contempt on August 30th, 2010 by a professional process server. Dr. Deakin did not file an answer in the Florida Court proceedings, nor did he attend, however he did send a number of letters to the Court's attention in Florida and to the attorney for Dr. Hastings. He took the position that he had fully met his support obligations under Justice Wolder's order, and that he had produced the income information to Dr. Hastings pursuant to Justice Wolder's order. He further took the position that Dr. Hastings failed to follow the ISOA procedures to attempt to vary Justice Wolder's order pursuant to s. 32(2) of the ISOA. Instead, Dr. Hastings commenced an originating application in Florida seeking child support. The Florida Order states that the Court conducted a final hearing on the Applicant's motion to "establish child support" which suggests that Dr. Hastings brought a new application even though her petition refers to a "modification of child support".

[16] The Florida Order dated August 22, 2012 provides that Dr. Deakin must pay child support in the amount of $615.00 per month, based on an imputed income of $44,243.00, pursuant to the Florida Child Support Guidelines. The amount of ongoing child support appears to be based on the net income of both parties and a Child Support Guidelines worksheet. The monthly amount of support ordered is actually $1,025.00, and Dr. Deakin's portion of that is $615.00 per month.

[17] The Florida Child Support Guidelines result in a substantially higher amount of monthly child support than what would have been ordered pursuant to the Ontario Child Support Guidelines. Full monthly child support based on an income of $44,243.00 pursuant to the Ontario Child Support Guidelines is $399.00 per month, or $216.00 less per month than the amount ordered by the Florida Court.

[18] The Florida Court further ordered that Dr. Deakin pay arrears based on the adjusted support amounts in the amount of $8,625.00 at the rate of $100.00 per month, and further that Dr. Deakin pay Dr. Hastings' legal costs of $6,000.00 in the American proceedings.

Dr. Deakin's Position

[19] Broadly speaking, Dr. Deakin submits that the Florida Order should be set on the basis that the Ontario Court had original jurisdiction over this matter and Dr. Hastings should have complied with the procedures for variation set out under the ISOA. Given that Dr. Hastings had already attorned to the Ontario jurisdiction, she should have prepared a support variation application which would be sent to the I.S.O. Unit in Ontario, as she did in 2005, to vary the order of Justice Wolder. The variation application would therefore be determined in accordance with the Ontario Child Support Guidelines, which is what she had agreed to in 2005.

[20] Dr. Deakin submits that there are three solid grounds to set aside the registration of the Florida Order, namely:

(1) Lack of Proper Notice and Reasonable Opportunity to be Heard

Dr. Deakin was not provided with formal notice of the final hearing scheduled on August 15, 2012 and, therefore, the Florida Order was made without proper notice to him. Further, Dr. Deakin was not given a reasonable opportunity to be heard in the Florida Court. He was self-represented and he had no knowledge of the court systems or its procedure. He also did not have the funds to retain counsel in Florida and to attend in court in Florida to defend himself.

(2) Contrary to Public Policy

It would be contrary to public policy in Ontario to confirm the registration of the Florida Order. The Florida Order obliges the Respondent to pay $615.00 per month in child support. Comparatively, if the Ontario Child Support Guidelines were applied, the table amount of child support Dr. Deakin would be ordered to pay is $399.00 per month. Further, Justice Birken did not take into consideration that the child support in Ontario may be reduced as a result of the increased access costs to Dr. Deakin, given that the only way he can exercise access to Isabelle is to travel to Florida, as Dr. Hastings refuses to allow any access to occur in Ontario. The order for child support would be therefore significantly lower than $399.00. Dr. Deakin submits that the amount of child support and the significantly high retroactive child support based on the higher quantum, as well as the legal fees, would cause him undue hardship. Given that the child support award in Florida is excessively higher than an award made in Ontario, it would be contrary to public policy to confirm the registration of the Florida Order.

(3) Lack of Jurisdiction

The Florida court did not have jurisdiction to make the child support order. Dr. Deakin argues that at the time the Florida Order was made he did not ordinarily reside in Florida, he was not subject to the jurisdiction of the Florida court, and he made it very clear that he was not attorning to the Florida court's jurisdiction. Dr. Deakin submits that the parties were subject to the jurisdiction of the Ontario Court of Justice in Milton, Ontario where they had both attorned and participated fully in the hearing before Justice Wolder prior to Justice Wolder's final order being made in 2005. Dr. Deakin submits that Dr. Hastings had attorned to the jurisdiction of Ontario with respect to child support as evidenced by the final order of Justice Wolder dated July 28, 2006 in which Dr. Hastings had made an Interjurisdictional Support Orders Act application in Ontario. Pursuant to s. 32 of I.S.O., the proper procedure was for Dr. Hastings to vary Justice Wolder's order in Ontario rather than starting a fresh application in the Florida court.

The Law and Analysis

[21] The Interjurisdictional Support Orders Act, 2002 (ISOA) 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 agreed to recognize and honour the support orders made by each other. See Samis (Guardian of) v. Samis, 2010 ONCJ 500.

[22] Section 20(4)(b) of the ISOA provides that the Ontario Court may set aside the registration of a foreign order if the Ontario Court determines that:

(i) in the proceeding in which the order was made, a party to the order did not have proper notice or a reasonable opportunity to be heard,

(ii) the order is contrary to public policy in Ontario, or

(iii) the court that made the order did not have the jurisdiction to make it.

[23] For the purposes of subclause (4)(b)(iii), sub-section (6) of the ISOA provides that a court has jurisdiction:

(a) if both parties to the order ordinarily reside in the reciprocating jurisdiction outside Canada; or

(b) if a party does not ordinarily reside in the reciprocating jurisdiction outside Canada but is subject to the jurisdiction of the court that made the order.

[24] Pursuant to s. 20(5) of the ISOA if the Ontario court sets aside the registration, it shall give written reasons for its decision and send them to the designated authority, in this case, the I.S.O. Unit in Florida.

Proper Notice or Reasonable Opportunity to be Heard

[25] The case law has established that when notice of the proceeding is deficient or a party does not have a reasonable opportunity to be heard, the registration of a foreign order will be set aside. In Szostek v. Szostek, 2011 CarswellOnt 13770, Justice Stanley B. Sherr set aside the registration of two child support orders made in Poland because the Respondent was not given notice of either of the support applications made in Poland. Further, in Gal v. Lukasiewicz, 2008 CarswellOnt 7999, Justice June Maresca set aside the registration of support orders also made in Poland because there was no evidence that indicated the Respondent had been properly served with notice of the proceedings in Poland.

[26] Moreover, even where courts have found service to be effective, the limited financial means of a party has been found to preclude the reasonable opportunity to be heard in the foreign jurisdiction, resulting in the registration of the foreign order being set aside. See Justice Marion L. Cohen's decision in Ziemianczyk v. Ziemianczyk, 2008 CarswellOnt 2147.

[27] In this case, Dr. Deakin fails to establish that he did not have proper notice or a reasonable opportunity to be heard.

[28] Here it is not disputed that Dr. Deakin was personally served with notice of the proceedings in August of 2010 by a process server in Ontario. Dr. Deakin deposes that although he was personally served, he was out of the country on February 25, 2011 when the Florida court enclosed an order setting a mandatory case management conference to be held before Justice Birken on March 8, 2011. He deposes that he did not return to Canada, having left the country due to an urgent family situation, until Wednesday March 16, 2011 and did not receive his personal mail until the next day. Dr. Deakin deposed that he did not attend the first mandatory case conference, however he did correspond with both Dr. Hastings' counsel and the Florida court with respect to his inability to attend.

[29] In September of 2011 he received a further order from the Florida court setting a case management conference for September 19, 2011. Dr. Deakin deposes that he was self-represented and he could not afford to travel to Florida to attend the case conference. He further deposes that he wrote to Justice Birken advising that he could not attend and that he was a Canadian citizen living in Ontario. In his correspondence to Justice Birken he reiterated that he was bound by Ontario law and the Child Support Guidelines for Ontario and that he had produced income disclosure to the Applicant.

[30] It is acknowledged by Dr. Deakin that he corresponded on numerous occasions with both Dr. Hastings' counsel, Mr. Stephen McDonald of Florida, and the Florida court regarding the Florida proceedings and his decision not to attend. In fact, he corresponded frequently and regularly both with the Florida court and Mr. McDonald in Florida, but appears to have made the decision not to attend so as not to be considered attorning to the Florida jurisdiction.

[31] Dr. Deakin submits that he also did not attend because of his strained financial circumstances. However, he does not dispute that he and his family have travelled to Florida for vacation and to visit Isabelle and he has retained counsel in the Ontario proceedings to set aside the Florida Order.

[32] I am satisfied that Dr. Deakin had proper notice of the Florida proceedings and he had a reasonable opportunity to be heard, however he chose not to participate. Dr. Deakin admits that on June 27, 2012, after corresponding regularly with both the Florida court and Mr. McDonald, he received correspondence from Mr. McDonald dated May 30, 2012 that a final hearing would be taking place on August 15, 2012 and enclosing an order against him made on May 30, 2012 before Justice Birken with respect to his failure to provide financial disclosure. Dr. Deakin's position that because he had not received 'formal' notice of the final August 15, 2012 hearing date is baseless. He had been fully notified of the proceedings and court dates since August of 2010 and he was given a number of opportunities to participate but he chose not to.

[33] I recognize the expense involved in travelling to Florida to participate in the proceedings, however as Mr. McDonald points out, it was open for Dr. Deakin to retain counsel in Florida or Ontario to participate by way of telephone conference, which is what Dr. Hastings has been doing in the motion proceedings before me. I permitted Mr. McDonald to make submissions on Dr. Hastings' behalf by way of telephone conference from his office in Florida. There was nothing stopping Dr. Deakin from doing the same thing in the Florida proceedings. Dr. Deakin is a chiropractor. He has a source of income and he retained private counsel for the Ontario proceedings to set aside the registration of the Florida court order.

[34] It is also worth noting that Dr. Deakin was not noted in default in the Florida court proceedings. It is not disputed that although Dr. Deakin did not file an Answer in the American proceedings, he had sent a number of letters to Justice Birken. Rather than noting him in default, Justice Birken deemed the correspondence serve as his 'Answer' in the proceedings. In his correspondence, Dr. Deakin provided Justice Birken with full information regarding the Ontario proceedings and, indeed, Justice Birken did take judicial notice of the Ontario Court proceedings when making the Florida support order. Finally, Dr. Deakin had an opportunity to appeal the Florida court order and he chose not to do so. I, therefore, dismiss this ground to set aside the registration of the Florida court order.

Whether the Florida Court had Jurisdiction to Make the Child Support Order

[35] Appellate courts across Canada have rendered conflicting decisions on the issue of whether ISOA is a complete code for making interjurisdictional support orders. The leading case in Ontario, which binds me, is the Ontario Court of Appeal's decision in Jasen v. Karassik, 2009 ONCA 245. In this case, the Court of Appeal found that ISOA is not a comprehensive code for support variations.

[36] In making this determination, the court held that the issue of whether a particular statute provides a "complete code" for the resolution of particular claims is ultimately a question of legislative intent: Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, at para. 31. The court concluded that there is nothing in the ISOA to suggest that it was intended to remove the right of applicants to proceed under other legislation. Indeed, the court pointed out that the ISOA expressly preserves the continued availability of remedies under other legislation. The court held, at paragraph 69 of its decision that the broader interjurisdictional support regime does not preclude applicants from seeking remedies in their own domestic courts. Section 51 of the ISOA reads as follows:

"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."

[37] ISO counsel strongly urges me to confirm the registration of the Florida Order following the decision of the Court of Appeal in Jasen v. Karassik, which is binding upon me.

[38] In my view, it is concerning that Dr. Hastings originally brought her application for child support under ISOA here in Halton in 2005, accepted the Ontario court's jurisdiction and agreed that the Ontario Child Support Guidelines applied. It would seem to me that once Dr. Hastings started here and attorned to this jurisdiction, then she should have varied the original support order here as well and brought a support variation application under the ISOA, following the same process that she followed in 2005. If Dr. Hastings had brought a support variation application under ISOA, then section 35 of ISOA makes it clear that in support variation applications, "in determining the amount of support for a child, the Ontario court shall apply the law of the jurisdiction where the person liable to pay child support ordinarily resides, which in this case, is significantly lower than the Florida Child Support Guidelines.

[39] Dr. Hastings' decision to bring a petition for support in Florida in 2010 seeking to 'modify' the child support order made here under ISOA in 2005 could be construed as forum shopping given that the variation that was ordered in Florida is significantly higher than the amount that would have been ordered in Ontario for the same income had she brought her support variation pursuant to the variation provisions of ISOA.

[40] However, after careful consideration, I have concluded that I cannot set aside the order on jurisdictional grounds, nor can it be found that Dr. Hastings attorned to this jurisdiction in 2005. The Ontario Court of Appeal has made it clear in Jasen v. Karassik that just because Dr. Hastings started in Ontario for the original child support order, it does not mean that she has attorned here for variation proceedings. The Florida Order is a valid order from a reciprocating jurisdiction. Florida had jurisdiction to make the order and Dr. Deakin was properly served and he did not appeal the order. In my view, under the ISOA, attornment is a discrete matter that needs to be determined for each proceeding.

[41] Even if ISOA is not a complete code, it was still open to Dr. Deakin to contest the Florida court's jurisdiction on the basis that Ontario was the more appropriate forum, following the doctrine of forum non conveniens. Once jurisdiction is established, if a defendant does not raise further objections, then the litigation proceeds before the court of the forum. The court cannot decline to exercise its jurisdiction unless the defendant invokes forum non conveniens. The decision to raise this doctrine rests with the parties, not with the court seized of the claim. It may have been open to Dr. Deakin to apply for a stay of the Florida court proceedings on the basis of forum non conveniens, however he did not do so, or it is certainly not clear that he did. It is also not clear how an American court would apply this doctrine.

Whether the Florida Order is Contrary to Public Policy

[42] It is well established that the Court should give careful consideration before deciding that something is contrary to public policy, particularly in the area of conflict of laws. In Beals v. Saldanha, 2003 SCC 72, the Supreme Court of Canada held that the defence of public policy is not meant to bar enforcement of a judgment rendered by a foreign court with a real and substantial connection to the claim for the sole reason that the foreign jurisdiction would not yield the same result as in Ontario or Canada. The Court stated the following at paragraph 76 of that decision:

"The use of the defence of public policy to challenge the enforcement of a foreign judgment involves impeachment of that judgment by condemning the foreign law on which the judgment is based. It is not a remedy to be used lightly. The expansion of this defence to include perceived injustices that do not offend our sense of morality is unwarranted. The defence of public policy should continue to have a narrow application."

[43] Ms. Douglas-Cummings argues that the defence of public policy must be used sparingly. She submits that courts have given a limited application to this ground to set aside registered orders under the ISOA. She argues that if Dr. Deakin's argument is accepted by the Court, then any support order that Ontario receives from a foreign jurisdiction for registration would be set aside if it is not in accordance with the Ontario Child Support Guidelines. It is not the intent of the ISOA that all foreign orders which are not in compliance with the Child Support Guidelines should be set aside. This would undermine the integrity and the intent of the legislation.

[44] A number of courts in Ontario have set aside the registration of foreign child support orders on public policy grounds. In Waszczyn v. Waszczyn, 2007 ONCJ 712, Justice Stanley B. Sherr found that a Polish order was against public policy in Ontario as there was compelling evidence to suggest that the Polish order had been obtained through misrepresentation of material facts by the mother.

[45] In Ziemianczyk v. Ziemianczyk, 2008 ONCJ 172, Justice Marion L. Cohen found that a Polish support order was against public policy as it had imposed a significant child support obligation against an Ontario mother who was living below the poverty line and earning less than $7,000.00 each year. In reaching this decision, Justice Cohen held the following at paragraphs 9 to 14 of her decision:

"9 I am also setting aside the registration of the order on the grounds that the order is contrary to public policy in Ontario.

10 Child support orders in Ontario must be made in accordance with the Child Support Guidelines, O. Reg. 391/97, as amended. Section 1 of the guidelines sets out the objectives of the legislation:

Objectives. -- The objectives of the guidelines are:

to establish a fair standard for children that they benefit from the financial means of their parents and, in the case of divorce, from the financial means of both spouses after separation;

to reduce conflict and tension between parents or spouses by making the calculation child support more objective;

to improve the efficiency of the legal process by giving courts, and parents and spouses, guidance setting the levels of child support and encouraging settlement; and

to ensure consistent treatment of parents or spouses and their children who are in similar circumstances.

11 Section 1 of the guidelines may be understood as a "purpose statement". A "purpose statement" is defined in Sullivan and Dreidger on the Construction of Statutes, 4th ed. (Markham, Ont.: Butterworths, 2002), at page 300, as

... a provision set out in the body of legislation that declares the principles or policies the legislation is meant to achieve.

12 It is clear from its explicit terms that section 1 of the guidelines constitutes such a statement. That is, section 1 of the Child Support Guidelines is a statement of the public policy in Ontario with respect to the determination of child support applications. Section 1 is therefore relevant to the determination of an application to set aside the registration of a child support order under subclause 20(4)(b)(ii) of the Interjurisdictional Support Orders Act, 2002.

13 The Child Support Guidelines set out a threshold level of income below which no amount of child support is payable. Also see the notes in Schedule 1 (Child Support Table For Ontario), which are also arguably "purpose statements". The current threshold level for one or two children is $7,000. An order of support based on an annual income below $7,000 would thus amount to an unfair standard of support and would be contrary to the policy enunciated in the Child Support Guidelines. Furthermore, pursuant to section 10 of the guidelines, it is open to the respondent to ask the court to make an order not in accordance with the guidelines for those years in which her earning were above the $7,000 threshold, on the basis that she would otherwise suffer undue hardship. As a matter of policy in Ontario, a "fair standard of support" is one that does not cause undue hardship to the payor.

14 In 2003, the respondent had no income. An order of support made against her based on her income in 2003 (zero) would have been contrary to the Child Support Guidelines and contrary to public policy in Ontario. Accordingly on this second basis as well, I am setting aside the registration of the order of the Polish court."

[46] In Niemira v. Niemira, 2006 ONCJ 411, Justice J.D. Karswick set aside a Polish order that ordered a father to pay child support for an adult child who had completed post-secondary education and was independent. Justice Karswick states the following at paragraphs 14 to 16 of his decision:

"Subsection 31(1) of the Family Law Act, R.S.O. 1990, c. F-3, as amended, provides that a parent has an obligation to provide support for his unmarried child who is a minor or is enrolled in a full time programme of education to the extent that he or she is capable of doing so.

Accordingly, upon the evidence provided by the father, the father would have no legal obligation in Ontario to provide support for his daughter.

It is the view of this court that it would be contrary to public policy to impose an obligation for child support on a resident of Ontario that is not sanctioned by the law of this province."

[47] In M.W.G. v. K.A.A., 2012 NBQB 402, Justice Terrence J. Morrison set aside the registration of a child support order for both retroactive and ongoing support from the State of Maine because, pursuant to the laws of New Brunswick, the child support could have been less than half than that provided for in the Maine order. The Maine order obligated the Respondent to pay $525.00 per month whereas under New Brunswick laws the Respondent would be obligated to pay $327.00 per month. Justice Morrison further noted that the Maine order "made no provision for the access costs incurred by the Respondent payor. Justice Morrison ultimately concluded that the Maine order was excessive and he set aside the registration on the basis that the order was contrary to public policy.

[48] In reaching his decision, Justice Morrison found the following at paragraphs 18 and 19 of his decision:

"Unlike in the Graune case, it is possible to determine whether or not the support ordered in the Maine Order would have yielded comparable results in New Brunswick. The answer to that is clearly no. Had the Maine court applied the laws of the Province of New Brunswick as it is obligated to do under section 12(2) of the Act, the applicant's child support obligation would have been significantly lower. By my estimation, the child support obligation in accordance with New Brunswick law could have been less than half that provided for in the Maine Order. The retroactive award contained in the Maine Order is more than seven times greater than that which would likely have been ordered had New Brunswick law been applied. In my view, the Maine Order provides for child support that is not only excessive, but grossly excessive. In essence, it is a question of degree. The difference between what the applicant is required to pay under the Maine Order and what he would have been required to pay had the laws of New Brunswick been applied is so great that, to use the words of Justice Major in Beals, it offends one's sense of morality.

I set aside the order pursuant to section 19(3)(b)(ii) on the grounds that the Maine Order is contrary to public policy in New Brunswick." [Emphasis added.]

[49] In the case before me, the Florida order compels Dr. Deakin to pay $615.00 per month in child support. Comparatively, if Dr. Hastings had brought a support variation application under the ISOA, then the table amount that Dr. Deakin would have been ordered to pay for the same income would be $399.00 per month, pursuant to the Ontario Guidelines. The ongoing amount ordered by the Florida Court is approximately 54% higher. As well, the retroactive award contained in the Florida Order is $8,625.00, almost three times greater than a retroactive award in Ontario for the same time period and effective start date. I question whether the cost award of $6,000.00 was justified given the understandable confusion with the interjurisdictional process and in my view, the fact that Dr. Hastings should have complied with the procedures under the ISOA as she did in 2005, which would have been significantly less expensive for both parties. The difference in the amounts that Dr. Deakin is required to pay in both jurisdictions is unduly onerous and excessive.

[50] Further, it is well established under the Ontario Guidelines that child support may be reduced under the undue hardship provisions of section 10 of the Guidelines where a "spouse has unusually high expenses in relation to exercising access to a child." Without a reduction to take into consideration Dr. Deakin's access expenses in travelling to Florida, the Florida Order may greatly exceed what Dr. Deakin is legally obligated to pay in Ontario, particularly given Dr. Deakin's income level and the fact that he has two other dependants. Dr. Deakin provided evidence that it usually costs approximately $2,500.00 to $3,000.00, which includes airfare, hotel, car rental, food, and entertainment if he travels alone to Florida to visit Isabelle.

[51] I have also been advised by Ms Douglas-Cummings that once the Florida Order is registered then Dr. Deakin can bring a support variation application under ISOA if he so chooses, to request that the order be varied so that it is in accordance with the Ontario Guidelines. It does not seem to be a very efficient process to register the order, which will only be varied again under the ISOA variation procedure, keeping in mind the objectives of the legislation.

[52] I agree with Justice Cohen in Ziemianczyk that it is clear from its explicit terms that section 1 of the Ontario Child Support Guidelines is a statement of the public policy in Ontario with respect to the determination of child support applications and reads as follows:

(a) to establish a fair standard of support for children that ensures that they benefit from the financial means of their parents and in the case of divorce, from the financial means of both spouses after separation;

(b) to reduce conflict and tension between parents or spouses when making the calculation of child support more objective;

(c) to improve the efficiency of the legal process by giving courts and parents and spouses guidance in setting the levels of child support and encouraging settlement; and

(d) to ensure consistent treatment of parents or spouses and their children who are in similar circumstances.

[53] In my view, the objectives of fairness, efficiency and consistent treatment required by the Guidelines have not been met by the Florida Order, nor have the objectives of ISOA, which was created 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 for the following reasons:

1. The Florida Order is excessively higher than an order that would have been obtained in Ontario, in light of the significantly higher ongoing support, the retroactive award, almost three times higher, and the cost award of $6,000.00, which was not justified. Given Dr. Deakin's moderate income and other dependants, as well as the unusually high access expenses that he incurs, the order will cause hardship.

2. Dr. Hastings chose not to bring a variation application under ISOA, following the procedures set out under the Act, even though she originally brought her application for child support under ISOA here in Halton in 2005, accepted the Ontario court's jurisdiction and agreed that the Ontario Child Support Guidelines applied. Dr. Deakin has paid the child support ordered under Justice Wolder's Order since 2006 in accordance with the Guidelines and has managed his affairs accordingly. If Dr. Hastings had brought a support variation application under ISOA, then the Ontario Guidelines would have continued to apply under section 35 of ISOA, ensuring a consistent, fair and predictable treatment for the parties and the child, and in my view, a fair and efficient process.

[54] The Florida Order is therefore contrary to public policy and will be set aside. Section 21 of ISOA provides that if an order made in a reciprocating jurisdiction outside Canada is set aside under section 20, then the matter shall be treated as a new support or variation application and a decision can be made under the applicable ISOA provisions. I have considered all of the evidence before me in making my decision, including the evidence filed by both parties regarding Dr. Deakin's income and access expenses. I have considered the very high threshold that a payor must meet under the section 10 "undue hardship" provisions of the Guidelines, to reduce child support if a parent has unusually high access expenses in relation to exercising access. I am not satisfied that there is sufficient evidence for that determination, or that the threshold has been met.

[55] Although I have found that the Florida Order is contrary to public policy and should be set aside, I want to be clear that, in my view, the public policy defence is not meant to interfere with findings of fact by foreign jurisdictions when Dr. Deakin was properly notified and given an opportunity to be heard and there was a fair hearing regarding the determination of Dr. Deakin's income for child support purposes, which certainly appeared to be the case here. The findings of fact made by Justice Birken with respect to Dr. Deakin's income were not challenged or appealed by Dr. Deakin. I am not persuaded by this aspect of Dr. Deakin's argument and I will not interfere with the findings of fact regarding Dr. Deakin's income made by the Florida Court, which in my view were reasonable and well considered.

[56] I also find that the commencement date of September 1, 2012 for the variation of child support made by Justice Birken to be a fair and reasonable date, which is the first month after the final hearing in Florida, of which Dr. Deakin was given fair and ample notice, for the reasons stated earlier.

Order

[57] Accordingly, for the above reasons, I make the following order:

1. The registration of the Florida Order is set aside.

2. Commencing September 1, 2012, the Order of Justice Theo Wolder, dated July 28, 2006, is varied so that the respondent father shall pay child support to the applicant mother in the amount of $399.00 per month. This is the table amount for one child based on an annual imputed income of $44,243.00, in accordance with the Ontario Child Support Guidelines.

3. The arrears of support are therefore fixed at $3,483.00, payable at a rate of $100.00 per month, commencing December 1, 2014, until all arrears are paid in full.

4. A Support Deduction Order shall issue and the Family Responsibility Office will adjust its records accordingly.

[58] I am strongly inclined not to make a costs order to either party given the complicated legal, procedural and jurisdictional issues involved in this case. However, if the parties are not able to resolve the issue of costs and wish to make submissions, then either party can serve and file written submissions regarding costs, limited to three pages, with a bill of costs and any offers to settle attached no later than 30 days from the date of this order. Any written response to costs submissions will be served and filed twenty days later.

[59] Finally, I wish to thank all counsel for their very helpful submissions and the case law and materials provided.

Released: November 20, 2014

Signed: Justice Sheilagh O'Connell

Footnotes

[1] See, for example, Harman v. Harmon, 2009 ABCA 410; Virani v. Virani, 2006 BCCA 63; Kapolak v. Udlaoyak (2006) 36 R.F.L. (6th) 388 (N.W.T.S.C.)

[2] This doctrine was recently articulated and new tests established in Canada by the Supreme Court of Canada in Club Resorts v. Van Breda, 2012 SCC 17.

[3] This doctrine of forum non conveniens was recently applied in the Ontario Court of Appeal in De Somer v. Martin, 2012 ONCA 535, a case involving an interjurisdictional child support order application, where neither party was actually resident in Ontario at the time of the hearing. However, the Court of Appeal held that Ontario should exercise jurisdiction over the matter as the parties had originally consented to an Ontario child support order, had agreed to use Canadian law for any future child support proceedings, and the mother intended to return to Canada.

[4] The arrears under an Ontario order would be $3,483.00, calculated as the difference between the original amount of $270.00 and the varied amount of $399, the difference being $129.00, multiplied by 27 months (September 1, 2012 to November 1, 2014), which is the effective start date under the Florida Order in determining arrears.