Court File and Parties

COURT FILE NO.: F420/10

DATE: October 18, 2013

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

RE: Michaela Christina Von Pfetten, applicant

AND:

Andreas Heinrich Kocher, respondent

BEFORE: ASTON J.

COUNSEL:
Hamoody Hassan for the applicant

William Clayton for the respondent

HEARD: October 18, 2013

Endorsement

Motion for an order granting leave to appeal paragraphs 1 and 2 of the order of Patterson J. dated July 26, 2013.

[1] The challenge to the order of Patterson J. is a collateral attack on the order of Henderson J., which was not appealed. For this motion I will assume, without necessarily deciding, that a collateral challenge is permissible if the prior order was made without jurisdiction, but not when it is just on the basis of mere legal error. If the order was made without jurisdiction it is void. The threshold question therefore is whether the registration of the German order under the Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13 (ISO) is a jurisdictional prerequisite to an order for the payment of provisional child support, or to an order for security for support which might be ordered in the future.

[2] This case is unusual because the claim for child support under the Family Law Act, R.S.O. 1990, c. F.3 has been struck. The applicant is now only claiming child support under the ISO. Because of s. 4 of that Act, she cannot make a claim for an original support order under Part II, but must make the claim under Part IV, by variation of the extant German order.

[3] There is precedent for the ability to claim an original child support order under the Family Law Act notwithstanding the existence of a foreign order. However, unless or until the order of January 11, 2013 is set aside, and the applicant is given permission to advance a Family Law Act claim, she must comply with the procedural requirements under Part IV of the ISO.

[4] She has not done so. However, there is no reason any procedural irregularities or deficiencies cannot be cured nunc pro tunc. For that reason they are not in the category of jurisdictional prerequisites.

[5] Patterson J. quite properly inquired into the appellant’s failure to challenge the jurisdiction of Henderson J. within the time for appealing that order. When no satisfactory answer was given, Patterson J. assumed the validity of Henderson’s J.’s order. He then exercised his discretion with respect to the request for security.

[6] There is no basis to interfere with the discretion thus exercised.

[7] I do not find reason to doubt the correctness of Patterson J.’s decision. Furthermore, on the unusual facts of this case and its convoluted procedural history, I would not find that the issues transcend the interests of the litigants in any event. The test under r. 62.02(4) has not been met.

[8] The motion for leave to appeal is dismissed.

Motion to stay paragraph 1 of the order of Patterson J. made July 26, 2013.

[9] Though the motion for leave to appeal is dismissed, the applicant ought to be required to register the German order as contemplated by Part III of the Act and take whatever other procedural steps are needed to satisfy the requirements of s. 28 of the ISO. The payment to her is stayed until she does so and until the procedural step in s. 28(2)(b) has occurred.

Costs

[10] The applicant is entitled to costs for all the steps taken from the time of the July 26, 2013 order to date fixed, by agreement of counsel, at $12,500 all inclusive.

“Justice David R. Aston”

Justice David R. Aston

Date: October 18, 2013