Ontario Court of Justice
Date: December 31, 2015
Court File No.: Brampton 945-02
Between:
ELZBIETA SZPIRAK
Applicant
— AND —
BOGDAN SZPIRAK
Respondent
Before: Justice P.W. Dunn
Heard: December 15, 2015
Ruling Released: December 31, 2015
Counsel:
- Ms. K. Marciniak — counsel for the respondent
- Ms. H. Puchala — counsel for the Jurisdictional Support Unit
DUNN J.:
[1] Before the court is the Respondent's motion dated 12 November 2015. Mr. Szpirak requested that the registration of two orders issued by the District Court in Rzeszow, Poland, dated 27 November 2012 and 23 July 2013, and registered in this court on 2 October 2015, be set aside. He relied on the authority of subclause 20(4)(b)(i) of the Interjurisdictional Support Orders Act, 2002. It states:
On a motion…the Ontario Court may,
(b) set aside the registration 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.
[2] The Respondent came to Canada from Poland in the 1990's. The parties divorced in Poland in 2000, and there was a first child and spousal support order from a Polish court on 7 November 2000 that required the Respondent to pay 300 Polish Zloty a month. It was registered in an Ontario Court in 2001. The Respondent made payments in accordance with that order for ten years.
[3] In 2011, the Applicant in Poland requested a Polish court to increase the quantum of spousal support from the 2000 order. The Respondent was summoned to the Polish consulate in Toronto on 17 September 2012 when he gave a statement about his income and living circumstances. The Polish court relied on that information for its 27 November 2012 court order that was registered here on 2 October 2015 (herein, the 27 November 2012 order). It required the Respondent to pay 1000 Polish Zloty a month or $314.10 Canadian. The Respondent only learned about this order late in that year. The Respondent contacted a lawyer in Poland.
[4] When the Respondent discovered the 27 November 2012 order, he appealed it in Poland, and on appeal, a Polish court varied the 27 November 2012 order by another order dated 22 July 2013, which was also registered in this court on 2 October 2015, (herein called the 23 July 2013 order.) This order obligated the Respondent to pay 800 Polish Zloty or $258.80 Canadian, which was less than the 27 November 2012 order required.
[5] The Respondent acknowledged that he knew about the appeal proceeding in Poland that lead to the 23 July 2013 order, because he was the Appellant. However, he maintains he was not cognizant of the proceeding that lead to the 27 November 2012 order.
[6] In July 2014, the Respondent appealed the 22 July 2013 order in Poland. That hearing was scheduled to be heard on 17 November 2015, which was what the Respondent indicated in his affidavit sworn 12 November 2015. No further information was provided in this proceeding about the disposition of that appeal.
[7] Ms. Marciniak argued that the registration of the 27 November 2012 order should be set aside because the Respondent did not receive notice of the Applicant's request in Poland to increase spousal support. There was no evidence that the Respondent knew about the Applicant's proceedings begun in 2011, and he therefore did not have a reasonable opportunity to be heard in the Polish court.
[8] However, the Respondent later learned of the case after it commenced, because he gave a statement of his financial circumstances at the Polish consulate in Toronto on 17 September 2012. He claimed he did not understand the significance of the information he was providing (to be reviewed by the Polish court), and he was not assisted by a lawyer in that interview.
[9] The Respondent had no further knowledge about the Polish case until he received the 27 November 2012 judgment. At that point, the Respondent contacted a lawyer in Poland, but there was no information available about what if anything that lawyer did to assist the Respondent. There was no indication in the Respondent's materials about how or on what evidence the 27 November 2012 order was based.
[10] I accept the Respondent's argument that the registration of the 23 July 2013 order should also be set aside because it was based on the 27 November 2012 order, for which the Respondent did not receive notice ab initio.
[11] Ms. Puchala appeared as an agent for the ISO Unit. She requested that the Respondent's motion be dismissed for the following reasons:
By participating in the 17 September 2012 interview that lead to the 27 November 2012 order, the Respondent was given a reasonable opportunity to be heard.
The Respondent was knowledgeable about Polish court proceedings because of the initial Polish order on 7 November 2000, the order on appeal of that order on 6 June 2001 (that was not registered), his eventual knowledge of the 27 November 2012 order, and of the Respondent's appeal that lead to the 23 July 2013 order. Then there was the further appeal (apparently not yet heard) by the Respondent of the 22 July 2013 order.
The Respondent had attorned to the Polish courts' jurisdiction.
The Respondent engaged a Polish lawyer after he learned of the 27 November 2012 judgment.
The Respondent did not like the result in the 27 November 2012 order, and that was his motivation to try to set aside the registration of the orders.
[12] I agree that the Respondent had knowledge of court proceedings in Poland, but that is irrelevant. The fact that he hired a lawyer after the 27 November 2012 order and that he gave a power of attorney in Poland (the information was not clear as to its purpose) is also immaterial. The test is whether the Respondent had notice of the proceedings in Poland that lead to the 27 November 2012 order. I find that he did not.
[13] I also determine that the Respondent was not given a reasonable opportunity to be heard in the case that lead to the 27 November 2012 ruling. Yes, he knew what he said at the Polish consulate in Toronto, but he did not know how that information would be used by the Polish court, and apparently he was not given the chance to appear before it when it considered the information from his 17 September 2012 interview.
[14] The registration of the 23 July 2013 order should also be set aside because it was based on the 27 November 2012 order.
[15] Order that the registration of the two orders issued by the District court in Rzeszow, Poland dated 27 November 2012 and 23 July 2013, that were registered in this court on 2 October 2015, be set aside.
[16] I am grateful to both lawyers for their careful presentations.
Released: December 31, 2015
Justice P.W. Dunn