Court Information

Ontario Court of Justice

Date: 2017-06-15

Court File No.: Brampton 10005/16

Parties

Between:

ELZBIETA NOWACKI c/o I.S.O. Unit of F.R.O. Applicant

— AND —

GRZEGORZ NOWACKI Respondent

Before the Court

Before: Justice Philip J. Clay

Motion Heard on: May 30, 2017

Reasons for Order released on: June 15, 2017

Counsel

Ms. H. Puchala — counsel for ISO Unit of FRO

Mr. J. Bruggeman — counsel for the respondent

MOTION TO SET ASIDE REGISTRATION

PROCEDURAL BACKGROUND

[1] On November 2, 2011 the Applicant mother obtained an order from the District court in Kielce, Poland for the Respondent father to pay support for their child Aleksander Nowacki born September 24, 2010. The Applicant applied to register the order in Ontario pursuant to the Interjurisdictional Support Orders Act. The said order was registered on October 27, 2016.

[2] On January 3, 2017 the Respondent brought a motion to set aside the registration. That motion was adjourned to a hearing date of May 30, 2017. The Respondent also sought other orders which included an order that if the registration was set aside the deemed application for a child support order in Ontario should be dismissed, an order that would prohibit the Applicant from seeking to register subsequent court orders for enforcement and an order for costs.

SERVICE

[3] On February 27, 2017 the Honourable Justice L.S. Parent of this court ordered that the FRO was to effect service of the Respondent's notice of motion documents on the Polish Central Authority who could then serve the Applicant. Ms. Puchala advised that the FRO complied with that order and she filed the affidavit of service proving service upon them on March 15, 2017 of the said documents together with an explanatory letter. She also filed the response of the Ministry of Justice of Poland declining to serve and stating that all documents should have been served pursuant to the Hague Convention process for extra-judicial service.

[4] I note that prior to the February 27 order the Respondent's counsel had served the Applicant at her address in Poland. Ms. Puchala did not seek any further service order at the hearing. I find that all reasonable efforts have been made to provide the Applicant with notice of this motion. While I am aware of the case law with respect to following the Hague rules for extra-judicial service the facts of this matter as set out below are such that I am not prepared to require the Respondent to take any further steps to serve the Applicant. I am satisfied that she did receive the documents and even if she did not that she is well aware that the Respondent would oppose registration in all of the circumstances of this matter.

THE LAW

[5] The relevant law is s. 20 of the Inter-jurisdictional Support Orders Act which reads as follows:

Notice of registration, order made outside Canada

20. (1) After the registration of an order made in a reciprocating jurisdiction outside Canada, the clerk of the Ontario court shall, in accordance with the regulations, give notice of the registration of the order to any party to the order who is believed to ordinarily reside in Ontario. 2002, c. 13, s. 20 (1).

Motion to set registration aside

(2) Within 30 days after receiving notice of the registration of the order, a party to the order may make a motion to the Ontario court to set aside the registration. 2002, c. 13, s. 20 (2).

Notice of motion

(3) A party who makes a motion under subsection (2) shall give notice of it to the designated authority and to the claimant in accordance with the regulations. 2002, c. 13, s. 20 (3).

Power of court

(4) On a motion under subsection (2), the Ontario court may,

(a) confirm the registration; or

(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,

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

or

(iii) the court that made the order did not have jurisdiction to make it. 2002, c. 13, s. 20 (4).

Reasons for setting aside

(5) If the Ontario court sets aside the registration, it shall give written reasons for its decision and send them to the designated authority. 2002, c. 13, s. 20 (5).

Jurisdiction

(6) For the purposes of sub-clause (4) (b) (iii), 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. 2002, c. 13, s. 20 (6).

Notice

(7) The clerk of the Ontario court shall give notice of a decision or order of that court to the parties and the designated authority, in accordance with the regulations. 2002, c. 13, s. 20 (7).

Proof of notice

(8) In a proceeding to enforce a registered order made in a reciprocating jurisdiction outside Canada, it is not necessary to prove that the respondent received notice under subsection (1) or (7). 2002, c. 13, s. 20 (8).

Effect of setting aside

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. 2002, c. 13, s. 21 (1).

Request for information and documents

(2) If the order does not contain the necessary information or documents required for a support application or support variation application, the designated authority shall request them from the claimant or from the appropriate authority of the reciprocating jurisdiction in which the order was made, and no further steps shall be taken in the proceeding until the designated authority has received the required material. 2002, c. 13, s. 21 (2).

THE EVIDENCE

[6] The Respondent filed an affidavit dated January 3, 2017 in support of his motion. He sought to set the order aside based upon all three sub-sections of s. 20 (4) (b). He set out the facts and the legal history of this matter.

[7] The parties were married in 2009 and their son Aleksander was born in Ontario where they resided together on September 23, 2010. He stated that in April 2011 they travelled to Poland for a holiday and to visit the Applicant's relatives. They had round trip airline tickets for this holiday which was taken as the Respondent had taken a 35 week paternity leave to care for his son. The Applicant then refused to return to Ontario and refused to allow the Respondent to return with the child who was a Canadian citizen. Upon his return with the assistance of the Ontario Central Authority the Respondent filed an Application in the Superior Court of Ontario pursuant to the Convention on the Civil Aspects of International Child Abduction ("the Hague Convention"). On October 27, 2011 the Honourable M. Justice Snowie made an order granting him interim interim custody of Aleksander. She declared that Ontario had jurisdiction to deal with matters involving the child and found that the Applicant was wrongfully retaining the child in Poland in breach of his rights of custody. The applicant was ordered to return the child to Canada and police enforcement was also ordered.

[8] On November 2, 2011 the Applicant obtained the said order from the District court in Kielce Poland. The Respondent was not provided with any notice of this proceeding. The order was made in a closed court. The Respondent was not served with a copy of this order until July 8, 2013 when the Applicant attempted to proceed with a divorce in Poland.

[9] In 2012 the Applicant brought a motion in Ontario to set aside the October 27, 2011 order. The Respondent stated that in so doing she clearly attorned to Ontario's jurisdiction. On April 3, 2012 the Honourable Mr. Justice Fragomeni refused to set aside Justice Snowie's order. On June 9, 2012 the Honourable Mr. Justice Bielby ordered the Applicant to provide the child's passport and other documentation. On August 21, 2012 Justice Bielby found the Applicant in contempt of court for the various breaches of the said orders. On September 11, 2012 the Honourable Mr. Justice D. Price granted the Respondent a final custody order and continued all of the temporary orders made. On May 22, 2013 the Honourable Mr. Justice Daley granted a final order of divorce and ordered costs against the Applicant.

[10] The Applicant then sought an order in Ontario to re-open the divorce proceeding though she did not personally return to Ontario. She wanted the divorce to be done in Poland. The Respondent said that she wanted to seek the corollary relief of custody and child support in a Polish court. On April 1, 2014 Justice Price released his reasons declining to set aside the divorce. In his reasons he held that it would not be in Aleksanders' best interests for the court to facilitate the Applicant's continued contempt of its order granting custody of the child to the Respondent.

[11] On February 6, 2015 Justice Price heard a motion to set aside the divorce order of Justice Daley. He refused to do so and he re-iterated that Ontario had jurisdiction and that the Applicant was in contempt of court orders in Ontario. On March 23, 2015 the Honourable Mr. Justice Huscroft of the Ontario Court of Appeal found that the Applicant had not purged her contempt and refused to hear her motion for a stay of the divorce order. He ordered costs against the Applicant.

[12] On December 15, 2015 Justice Price found the Applicant to be in contempt of the October 27, 2011, April 3, 2012 and June 19, 2012 orders. A penalty of $2,000 per month was ordered for the contempt and costs were ordered. On May 10, 2016 Justice Price made a further contempt order against the Respondent and he required her to pay $50,000 to purge her contempt.

[13] As the contempt remains outstanding and the child has not been returned there is a Canada wide warrant and an Interpol arrest warrant out for the Applicant. At the time of this motion the total costs and penalties owed by the Applicant for her failure to comply with the court orders exceeds $131,000.

SUBMISSIONS

[14] Ms. Puchala did not file any affidavit evidence. She did file a factum on behalf of the ISO unit of FRO. In it she provided a very helpful survey of the relevant law. She stated that the ISO unit was not required to attend on motions to set aside but they did so in this matter as a Friend of the court. She did not contest the facts set out in the Respondent's material.

[15] Mr. Bruggeman urged the court to set aside the registration of the order under all three sub-sections of s. 20 (4) (b). He said that if the court did that it should then refuse to make a child support order. He said that the same facts that would make it against public policy to confirm the order were also relevant to the issue of whether to make a child support order in favour of a party who was in contempt of a number of court orders. He said that the application for support that is effectively deemed by s. 21 (1) of the said Act should be dismissed.

[16] Mr. Bruggeman referred to the legal history and stated that it was the Respondent's position that the Applicant sought a registration of this order out of malice and bad faith. He said that she should be prohibited from bringing any further actions in Ontario courts without purging her contempt.

[17] Finally, Mr. Bruggeman sought costs. He filed his costs outline. He stated that the Applicant's bad faith should result in a full indemnity costs order pursuant to Rule 24 (8) of the Family Law Rules.

ANALYSIS

[18] I reviewed the evidence in light of the provisions of s. 20 (4) of the Act. It is clear that a court should set aside registration of the order if only one of the grounds set out in 20 (4) (b) should apply. In this matter I find that all three grounds apply.

Lack of Notice

[19] The Respondent was not provided with any notice of the Applicant's application for a child support order in Poland on November 2, 2011. He was in Ontario at the time having just obtained a custody order on October 27 and an order that Ontario had jurisdiction over the child. He had no opportunity to be heard prior to the registered order being made.

Against Public Policy

[20] The Applicant chose to ignore an order made under the Hague Convention for the return of the child to the father's care. She effectively abducted the child while the family was on holiday in Poland in April 2011 and she has refused to return him to Ontario despite the court orders. The Applicant was clearly aware of the orders as she retained counsel in Ontario on two separate occasions to try to have orders set aside. She was unsuccessful on both occasions. She has done nothing to purge her contempt of the court orders. She simply chose to obtain an order in Poland without notice to the Respondent and she used the ISO process created by the Province of Ontario to have this order registered.

[21] It is settled law in Ontario that child support is the right of a child and cannot be negotiated away by a parent. The issue here thought is whether the contemptuous behaviour of the mother should prevent the child from receiving support from his father. I find that this issue has been addressed in the decision of the majority of the B.C Court of Appeal in Hughes v. Hughes, 2014 BCCA 196. The facts of that case are similar to the facts before this court. The court refused to uphold a child support order on the basis of the mother's conduct in refusing to return a child pursuant to a court order made under the Hague Convention. I note that the Supreme Court of Canada denied leave to appeal.

[22] I find that it would be against public policy for the mother to be able to rely upon the Ontario courts to obtain child support for the very child that she abducted.

Lack of Jurisdiction

[23] The evidence was that the parties were residing in Ontario and the child was born here. They went to Poland for a holiday with round trip air tickets. The Applicant refused to return and did not let the Respondent take the child with him. At the time the mother obtained the November 2, 2011 an order had already been made in Ontario that Ontario was the proper jurisdiction to adjudicate all matters concerning this child. That order has been upheld by the Court of Appeal. The Polish court clearly had no jurisdiction over this child.

COSTS

[24] Mr. Bruggeman sought costs of this motion on a full recovery basis. He relied upon R.24 (8) of the Family Law Rules which reads as follows:

BAD FAITH

(8) If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately. O. Reg. 114/99, r. 24 (8).

[25] I find that the Applicant did act in bad faith in this matter. She was well aware that the Ontario courts had jurisdiction over the child. She knew or should have known that the RCMP and Interpol had warrants for her arrest. She engaged the services of the ISO office of FRO which she knew or should have known could not refuse to register her Polish order. She knew that she could not succeed on the merits as she had abducted the child and the child was residing with the Respondent in Ontario. By using the ISO system she likely did not incur any legal costs. By way of contrast she knew or should have known, if only because of all the costs order already made, that the Respondent would be put to significant legal costs simply to contest the registration of this old Polish order. I find that in all of the circumstances the Applicant acted in bad faith and that full recovery costs must be ordered.

[26] I reviewed Mr. Bruggeman's costs outline. The fees and disbursements set out are reasonable given all the work done and the necessity of the court attendance. I am prepared to order costs in the full amount claimed being $7,139.03 inclusive of H.S.T. and disbursements.

ORDER

(1) The registration in Ontario of the Order for payment of support for dependents made by the District Court of Kielce in Poland on November 2, 2011 is hereby set aside.

(2) The deemed Application for child support created by the provisions of s. 21(1) of the Inter-jurisdictional Support Orders Act is dismissed.

(3) The Applicant is prohibited from commencing any proceedings in any court in Ontario, including such a proceeding commenced through the Inter-jurisdictional Support Orders Act for any relief for custody, access, and support of the child Aleksander Nowacki born September 24, 2010 until she complies with all past orders of Ontario courts or obtains leave from a judge of an Ontario court upon at least 30 days' notice to the Respondent.

(4) The Applicant shall pay to the Respondent his costs of this motion fixed in the amount of $7,139.03 inclusive of H.S.T. and disbursements.

Released: June 15, 2017

Justice Philip J. Clay