Court File and Parties

DATE: July 19, 2024 COURT FILE NO.: DR44599/23 ONTARIO COURT OF JUSTICE

B E T W E E N:

SUNNY JILL BLACKISTON ACTING IN PERSON APPLICANT

- and –

WILLIAM NEWMAN RESPONDENT

THE DIRECTOR OF THE FAMILY RESPONSIBILITY OFFICE, INTERJURISDICTIONAL SUPPORT ORDERS UNIT (ISO UNIT) INTERESTED PARTY

BEFORE: Justice S.B. Sherr

COUNSEL: Sunny Jill Blackiston, Acting in Person Gloria Antwi, for the Respondent Sobika Sadacharam, for the ISO Unit

HEARD: July 17, 2024

Reasons for Decision

Part One – Introduction

[1] The respondent seeks an order setting aside the registration of a child support order dated April 30, 2001, made by the Superior Court of California, County of Yolo (the California proceeding), registered in that court on May 1, 2001 (the California order) and registered in this court on November 27, 2023, pursuant to the Interjurisdictional Support Orders Act, 2002 (the Act).

[2] The California order provides that the respondent pay the applicant child support of $1,244 US dollars each month, for the parties’ three children (the children), starting on April 1, 2001. Those children are now 34, 33 and 31 years old.

[3] The respondent filed two affidavits sworn on June 5, 2024 and July 16, 2024. He argues that the California order should be set aside because: a) He did not receive notice of the California proceeding and did not have a reasonable opportunity to be heard in that proceeding. b) The California order is contrary to public policy in Ontario because: i) He was earning much less than the income attributed to him for support purposes. He submits that if he had received notice of the California proceeding, he could have provided evidence of his actual income and the proper amount of support would have been ordered. ii) He disputes paternity of one of the children (the daughter). He submits that if he had received notice of the California proceeding, he would have raised that issue and have asked for DNA testing at that time. iii) Over 22 years have passed without support enforcement. He submits it is unfair to enforce the order now – particularly since the children were adopted in 2005 by the applicant’s present husband. The respondent also submits he is of modest means and cannot afford to pay the support arrears claimed by the applicant.

[4] The applicant opposed the respondent's motion and asked the court to confirm the registration of the California order. The applicant filed an affidavit sworn on June 28, 2024. She participated in this hearing by videoconference from Pennsylvania. She submits: a) The respondent had notice of the California proceeding. b) The respondent had a reasonable opportunity to be heard in the California proceeding. He took no steps to set aside or change the California order. He took no steps to challenge paternity of the daughter. c) The respondent has deliberately avoided his child support obligations. He hid his whereabouts from her and she has spent the last 22 years trying to locate him. d) It would not be contrary to public policy to enforce the California order. e) She is only seeking support arrears that accrued prior to the children being adopted in March 2005.

[5] The Director of the Family Responsibility Office, Interjurisdictional Support Orders Unit (ISO unit) participated in the motion as an interested party. It filed a statement of arrears that have accrued pursuant to the California order. It submitted that the respondent did not meet the test set out in the Act to set aside the California order.

[6] The applicant and the respondent were affirmed and provided the court with additional oral evidence.

[7] The issue for this court to determine is whether it should confirm or set aside the California order.

Part Two – Background and history of proceedings

[8] The parties were married in Las Vegas, Nevada in January 1989.

[9] The parties and the children moved to Colorado and separated in June 1995.

[10] After their separation, the parties’ two sons lived with the respondent and the daughter and the applicant’s daughter from another relationship lived with the applicant.

[11] The parties were divorced in Colorado in October 1995.

[12] The respondent and the parties’ sons moved to California in 1996. The applicant, the daughter and the applicant’s other daughter moved to Maryland.

[13] In July 2000, the parties’ sons moved to Maryland to live with the applicant. That is the last time the respondent saw the children. He has chosen not to have a relationship with them.

[14] In July 2000, the applicant sought child support in California from the respondent through the Maryland and California Child Support Enforcement Offices.

[15] The applicant brought an application in January 2001, in Maryland, for custody orders. The respondent was served with that application.

[16] On April 30, 2001, the California order was made. It was registered in that court on May 1, 2001.

[17] On July 3, 2001, an order was made in The Circuit Court for Hartford County, Maryland, granting custody of the children to the applicant. The respondent did not participate in that proceeding, although he was duly served.

[18] The respondent moved to Texas sometime between June and September 2001. [1]

[19] The respondent had his pay garnished in Texas for approximately two months in 2001. He acknowledged this was for child support and that he took no steps to obtain a copy of the California order or take any action to set it aside or change it.

[20] The respondent deposed he moved to Canada in the fall of 2001. He has lived in Canada since then.

[21] In March 2005, the parties’ children were adopted by the applicant’s husband. The applicant informed the Maryland child support enforcement authorities she would not seek child support from the respondent accruing after that date.

[22] The applicant and her husband now live in Pennsylvania.

[23] The ISO unit filed a statement of arrears for this hearing. It reflected support arrears from the start date of the California order until the date the children were adopted in March 2005. It did not include interest accrued pursuant to the order. The arrears are $59,712 in US dollars.

Part Three – The legislative basis for setting aside registered orders

[24] Part III of the Act sets out the procedure for the registration and enforcement of support orders made in reciprocating jurisdictions outside of Ontario. [2] The grounds for setting aside a registered court order are set out in clause 20 (4) (b) of the Act, that reads as follows:

(4) Power of court.— On a motion under subsection (2), 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, (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.

Part Four – Did the respondent have proper notice or a reasonable opportunity to be heard in the California proceeding?

4.1 Preliminary statutory interpretation issue

[25] The ISO Unit submitted that even if the respondent did not have proper notice of the California proceeding, he had a reasonable opportunity to be heard in that proceeding because he acknowledged he could have moved to set aside or change the California order shortly after it was made. The ISO Unit submits that the phrase “in the proceeding in which the order was made” includes any motion to set aside or change that order. The respondent disagrees with this interpretation.

[26] It is tempting to agree with the ISO Unit’s submission because of the proximity of when the respondent stated he became aware of the California order to when the order was made. [3] However, what if a payor learns about a support order 3, 5, 10 years, or even longer after the order and then moves to change it or set it aside? How could this motion be considered part of the same proceeding?

[27] The plain words of subclause 20 (4) (b) (i) of the Act are that it applies to the proceeding in which the order is made. It does not refer to a subsequent motion to set aside or change that order.

[28] There are cases where courts have set aside registered orders where a respondent received notice of the proceeding in which the order sought to be registered was made but was unable to participate in that proceeding because of financial circumstances. See: Waszczyn v. Waszczyn, 2007 ONCJ 512; Ziemianczyk v. Ziemianczyk, 2008 ONCJ 172, [2008] O.J. No. 1479 (OCJ).

[29] The court can also envision circumstances where a respondent may not have had a reasonable opportunity to be heard where they received notice of the proceeding but did not receive notice of a trial date within that proceeding.

[30] There may also be circumstances where an Ontario court finds that the process followed by a court in a reciprocating jurisdiction did not allow for reasonable participation by a respondent.

[31] However, these scenarios are limited to the proceeding in which the order sought to be registered is made – not a subsequent proceeding to set aside or change that order.

[32] It is unnecessary to stretch the plain meaning of the words in subclause 20 (4) (b) (i) of the Act to achieve the Act’s objectives and a just result. [4] This is because the preamble in subsection 20 (4) states that the court may set aside the registration of the order. In determining how to exercise its discretion, the court can consider whether a respondent failed to promptly take steps to set aside or change the order where they did not receive proper notice or did not have a reasonable opportunity to participate in the proceeding.

[33] The court finds that the phrase “in the proceeding in which the order was made”, referred to in subclause 20 (4) (b) (i) of the Act does not include a subsequent motion to set aside or change that order.

4.2 Analysis

[34] The evidence informs the court, on a balance of probabilities, that the respondent received notice of the California proceeding and had a reasonable opportunity to be heard in that proceeding.

[35] The onus is on the person seeking to set aside an order. Ultimately, the decision is one of judicial discretion. See: Irons v. Irons, 2020 ONSC 1471.

[36] In assessing the reliability and credibility of the evidence, the court was mindful of the challenges in proving facts that occurred over 22 years ago. Recollections of details fade and it is difficult to obtain corroborating documentation. The court also considered that if the respondent had taken steps to set aside or change the California order when he learned his pay was being garnished, the parties and the court would not be facing these challenges.

[37] The applicant provided some evidence supporting her contention that the respondent received notice of the California proceeding including: a) The California court was satisfied the respondent was served with the application and proceeded to make a final order. b) The applicant filed a summons from the California court where a clerk checked off a box dated February 28, 2001, that the respondent had been served by mail with the application. The summons did not include the respondent’s address. It was not clear from the document when the summons was mailed to the respondent. c) The applicant filed an affidavit of service from the Maryland custody case setting out the application was served on the respondent in California on January 17, 2001. This was shortly before the summons from the California court was sent to him. d) The applicant attested that she provided the child support enforcement authorities with the same address for the respondent as the one he was served at in the Maryland custody case. It is highly probable that the California application was mailed to this address. The respondent did not deny he lived at that address at that time – only that he never received it.

[38] The court found the applicant to be a credible witness. She provided considerable detail of events and provided corroborating documentation for many of her claims.

[39] The court had significant concerns with the reliability and credibility of the respondent’s evidence.

[40] The respondent deposed that the parties agreed not to seek support from one another when they each had two children living with them. He said he believed that the applicant would not seek child support from him when the boys went to live with her in July 2000. However, it should have been obvious to the respondent that the applicant was claiming child support once his pay was garnished in 2001.

[41] The respondent stated his belief that the applicant chose not to seek support from him because he did not hear from enforcement authorities once he moved to Canada. There was no reason for him to believe this. His evidence was disingenuous. The respondent did not advise the applicant when he moved to Canada, nor did he provide her with his address. He chose to have no contact with her or the children. She did not know where he was.

[42] The following evidence also supports the applicant’s contention that the respondent has avoided his child support obligations: a) He moved from California to Texas shortly after the California order was made. He did not advise the applicant he had moved. The applicant had to track him down in Texas to enforce the California order. b) Shortly after his income was garnished, he quit that job and moved to Canada. It is highly unlikely this was a coincidence. c) He did not advise the applicant at any time that he had moved to Canada. d) The court accepts the applicant’s evidence that she has spent years trying to track down where he moved to. She described extensive efforts in her affidavit. Her frustration with his avoidance of the California order was palpable in her affidavit and at this hearing. e) He deposed he verbally gave his address in Canada to a person in the Texas child support enforcement office. He provided no corroborating evidence of this. The court does not accept his evidence. f) Even if the court accepted this evidence, he knew he had a child support obligation and took no steps to ensure that the applicant knew where he was so she could receive child support. g) He has acted in bad faith. He did not voluntarily pay any child support prior to moving to Canada. He has paid no child support since he moved to Canada. He preferred his own interests to the interests of the children. h) He now questions the paternity of the daughter. However, the applicant provided proof that the respondent was named as her father on her birth certificate. He has never taken steps to change this. He did not contest paternity during the Colorado divorce proceeding. Nor did he contest paternity during the Maryland custody proceeding. He did not contest paternity when he learned of the California order. This evidence left the court with the distinct impression that he is now raising any issue he can think of to avoid his child support responsibilities. i) He deposed he took no steps to set aside or change the California order because his life was in disarray, he was overwhelmed, and he could not afford a lawyer at that time. However, he had the financial resources to move from California to Texas and then again from Texas to Canada in 2001. He provided no documentary evidence of his financial circumstances from that time. j) If he had been unhappy with the California order, he had plenty of opportunities to change it. Instead, he chose the path of hoping the applicant would be unable to locate him to enforce the order.

[43] The respondent’s conduct adversely affects his credibility.

[44] There were also several inconsistencies in the respondent’s evidence that made it less reliable. For instance: a) He claimed at paragraph 14b of his June 5, 2024 affidavit that his wages were being garnished while he was in Texas from June or July 2001 until September 11, 2001. At paragraph 11a of that affidavit, he deposed he did not move to Texas until after September 11, 2001. b) At paragraph 11d of his June 5, 2001 affidavit, he stated that he and his partner moved to Canada immediately after September 11, 2001. At paragraph 12a of that affidavit he said they moved to Canada in November 2001. c) He claimed in his June 5, 2024 affidavit that he was living common-law with his partner. He also claimed he did not know if his divorce with the applicant had gone through. The applicant produced proof of an October 25, 1995 Divorce Certificate from the District Court of the State of Colorado. She also provided proof that the respondent and his partner were married in Texas on November 10, 2001. d) He would likely have required proof of being divorced from the applicant to obtain his marriage license in Texas. In his reply affidavit, he stated he obtained a pastor on-line and was unaware if the Texas marriage would be recognized in Canada. He said he considers himself to be in a common-law relationship. He did not provide any corroborating documentation (such as income tax returns) to show that he is representing himself to be living in a common-law relationship, as opposed to being married. e) In his June 5, 2001 affidavit, he claimed he was earning roughly $1,500 monthly US dollars when the California order was made. At this hearing, he told the court he was earning less than $2,000 a month at that time. When asked how much less, he said he was earning about $500 each week. This is much more than the $1,500 monthly figure he deposed to in his affidavit. f) He claimed he did not remember being served with the Maryland court application for custody. The applicant provided an affidavit of service. The court finds that he received that application. He either has a poor memory or was not telling the truth.

[45] The court does not accept the respondent’s evidence that he did not receive notice of the California proceeding.

Part Five – Is the California order against public policy?

[46] The respondent submits that the California order is against public policy because he was only earning $1,500 US dollars a month at the time of that order as a woodworker. The California order set his income at $2,850 monthly in US dollars for the purpose of the child support calculation.

[47] The respondent also submits that he did not have the opportunity to challenge the daughter’s paternity in the California proceeding. He claims that an order requiring him to pay support for her is against Ontario public policy. The court rejects this submission for the reasons set out in subparagraph 42 (h) above.

[48] 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, 1981 CarswellBC 41 (B.C.C.A.). Setting aside a foreign order on a public policy basis should be given a narrow application. This defence is not meant to bar enforcement of a judgment rendered by a foreign court with a real and substantial connection to the cause of action for the sole reason that the foreign jurisdiction would not yield the same result as in Canada. See: Beals v. Saldanha, 2003 SCC 72; Graune v. Graune, 2010 NBQB 68, [2010] N.B.J. No. 67 (NBQB); Samis (Guardian of) v. Samis. supra.

[49] There are some cases where courts have found that foreign support orders are contrary to Ontario public policy because the foreign jurisdiction’s methodology for calculating child support results in much higher support orders than would be ordered in Ontario. See: Ziemanczyk, supra; M.W.G. v. K.A.A., [2012] N.B.J. No. 441 (NBQB); Hastings v. Deacon, 2014 ONCJ 618. However, these cases did not interfere with findings of fact from the foreign jurisdiction – such as the assessment of a payor’s income.

[50] Other cases have stated that a registered order should not be set aside on public policy grounds just because the support mechanism used in the foreign jurisdiction might generate a different support result. See: Graune, v. Graune, supra; Rocca v. Rocca, 2014 NBQB 192, where the court cautioned that registered orders should not be set aside lightly and reciprocity needs to be respected.

[51] The respondent did not argue that the methodology for calculating child support in California violated Ontario public policy. He argued that there was an improper assessment of his income, and he did not have the opportunity to challenge paternity for the daughter.

[52] It is this court's view that the public policy defence is not meant to interfere with findings of fact by foreign jurisdictions when proper process has been followed. To find otherwise would undermine the integrity of the interjurisdictional scheme. See: Samis (Guardian of) v. Samis, 2010 ONCJ 500, supra; Hastings v. Deacon, supra, par. 55.

[53] The court finds that proper process was followed in the California proceeding. The assessment of the respondent’s income in the California proceeding was a finding of fact.

[54] The respondent submitted he cannot afford to pay the arrears based on his present means. He also submitted that the adoption of the children should be a factor in determining whether to rescind arrears accumulated prior to the children’s adoption. In Catalano v. Ontario (Family Responsibility Office) [2004 O.J. No. 2355 (Ontario Superior Court of Justice) the court wrote at paragraph 8: ….I regard the law, at present, as being an adoption does not terminate pre-adoption arrears of child support, but that the adoption order is part of the history before the court.

[55] The applicant is not seeking to enforce post-adoption arrears. These submissions by the respondent are better suited to any motion to change support he might bring or any enforcement proceeding that might be brought by the Director of the Family Responsibility Office against him. These submissions do not affect the court’s analysis regarding whether to set aside or confirm the registration of the California order.

[56] The court will not set aside the California order based on public policy grounds.

Part Six – Discretion

[57] If the court had accepted the respondent’s evidence that he did not receive notice of the California proceeding, it still would not have exercised its discretion to set aside the California order.

[58] The respondent failed to take reasonable and timely steps to set aside or change the California order. He knew his wages were being garnished for child support by October 2001 at the latest. This was only 4 to 5 months after the California order was made. The court finds that with modest due diligence the respondent could have had his evidence heard and considered. He could have presented proof of his income. He could have raised the issue of paternity regarding the daughter. Instead, he chose to ignore the order and not pay support.

[59] A major factor in determining whether a default order should be set aside is whether the moving party has moved promptly after learning about the order. See: Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194. The respondent failed to do this and did not provide a satisfactory reason for his failure to do so.

[60] Other important considerations in determining whether to set aside a default order are whether the moving party is acting in good faith and with “clean hands” and whether the interests of justice favour setting aside the order. See: Zia v. Ahmad, 2021 ONCA 495. The respondent’s claim fails on both counts. He has not paid child support and he has gone to great lengths to avoid the enforcement of the California order.

Part Seven – Conclusion

[61] An order will go as follows: a) The respondent’s motion to set aside the registration of the California order is dismissed. b) The registration of the California order is confirmed.

[62] The court commends the applicant for the quality of her written material. The court also thanks counsel for the respondent and the ISO unit for their excellent presentations.

Released: July 19, 2024

Justice Stanley B. Sherr

Footnotes

[1] The respondent provided conflicting evidence that will be set out below.

[2] The United States is a reciprocating jurisdiction under the Act.

[3] The respondent stated he did not know the specifics of the California order. However, he could have obtained them with minimal effort once his pay was being garnished in Texas sometime between June and October 2001.

[4] The 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. See: Samis (Guardian of) v. Samis, 2010 ONCJ 500.