Court File and Parties
Court File No.: FC-17-346 Date: 2018/11/23 Superior Court of Justice - Ontario
Re: Stephen Noel Clarke, Applicant -and- Suzanne Maree Clarke, Respondent
Before: Madam Justice D. Summers
Counsel: Andrew Emery, for the Applicant No one appearing for the Respondent Allan T. Hirsch, appearing for the Family Responsibility Office, Interjurisdictional Support Orders Unit
Heard: July 3, 2018
Endorsement
Introduction
[1] This is a motion by the Applicant, Stephen Clarke, under the Interjurisdictional Support Orders Act (ISOA), S.O. 2002, c. 13. He seeks to set aside the Ontario registration of the child support liability assessed against him in Australia. Ms. Clarke has lived in Australia with their son, Jackson Clarke, since 2004.
[2] Mr. Clarke’s child support obligation was established in 2005 under the administrative assessment procedure that is the law in Australia. In 2008, he fell into arrears. It was not until November, 2016 that the outstanding support liability was registered in Ontario with the Interjurisdictional Support Orders Unit of the Family Responsibility Office for enforcement as a court order. As of September, 2016, the arrears owing totalled AUD $32,495.96. The ongoing amount to be enforced, as recalculated over the years after 2005, was AUD $452.50 per month.
[3] Mr. Clarke makes two arguments in support of his claim to have the registration set aside. First, he contends that he was not given proper notice of Ms. Clarke’s support application in 2005. Second, he submits that he did not have a reasonable opportunity to be heard in that proceeding.
[4] Ms. Clarke did not appear on the motion. Counsel for the Interjurisdictional Support Orders Unit (ISO) of the Family Responsibility Office appeared to assist the court. Both arguments advanced by Mr. Clarke were disputed.
Issue #1 – Proper Notice
[5] Mr. Clarke relies on s. 20(4)(b)(i) of the ISOA. Under that provision, the court may either confirm or set aside the registration of a support order made outside of Canada in a reciprocating jurisdiction if a party did not have proper notice of the proceeding or a reasonable opportunity to be heard.
[6] In Australia, child support is established and recalculated periodically under an administrative process where it is available, not a judicial process. The Department of Human Services (DHS) administers the system.
[7] In May, 2005, the DHS sent two letters to Mr. Clarke. The first letter dated May 5, 2005, gave notice that an application to calculate and collect child support had been received from Ms. Clarke. It further advised that support payments would be based on income of AUD $25,599. Mr. Clarke was asked to contact the DHS by phone or in writing if his income was not as stated. An income information form was enclosed. The second letter dated May 31, 2005, gave Mr. Clarke notice of the support amount assessed against him. It stated the date his payment was due, his case number and how to contact the child support agency if he thought the assessment was incorrect.
[8] Mr. Clark denied receiving these letters. He said he was moving around a lot at the time.
[9] The DHS records also indicate two other attempts were made to contact Mr. Clarke in April, 2005, by phone. Messages were left. Mr. Clarke admits to one conversation late in June, 2005 when he called them to determine how to pay the child support invoice he received. According to the information provided by the DHS, during this call they explained to Mr. Clarke how to make payment, how their administrative procedure for determining child support worked, how to provide them with ongoing income information for future recalculations, and the need to keep them advised of address changes. They also said that an information package would be sent out.
[10] From June, 2005 to and including December, 2007, Mr. Clarke paid all monthly child support invoices. The invoice for February, 2008 was returned to Australia. No further payments were received.
[11] I reject Mr. Clarke’s evidence that the notices sent by the DHS in May, 2005 were not received. There is no evidence to indicate that the letters were returned to the sender or that Mr. Clarke in any way questioned why he began receiving child support invoices in June, 2005. I infer that the invoices were not questioned because he was expecting them. However, if I am wrong and the letters were not received by Mr. Clarke, I nevertheless find that he was given proper notice. Under s. 47 of the ISOA, I must take judicial notice of the law of a reciprocating jurisdiction and where required, apply it. In this instance, the pertinent provisions are found in the Child Support (Registration and Collection) Regulations 1988 under the Child Support (Registration and Collection) Act 1988 in Australia. Specifically, regulation 14 (1) (a) states that any notice sent on behalf of the Registrar may be served on a person by mail and unless there is proof to the contrary, service by mail is deemed effective at the time when the notice would have arrived at the address in the ordinary course of the post. Regulation 15 provides that the address for service is the last address given by the person or, if not provided, the last address for service held on file by the Registrar.
[12] Moreover, by the end of June, 2005, Mr. Clark was clearly aware of his child support obligation and how to contact the DHS in Australia. His last payment coincided with a change of address. Mr. Clark knew he had an ongoing obligation yet did not advise of his new address then, or in the 8 years that followed. Regulation 16 of Australian Child Support (Registration and Collection) Regulations 1988 states that a person who fails to advise of an address change cannot rely on that change as a defence.
[13] For these reasons, I find that Mr. Clarke had proper notice of Ms. Clarke’s 2005 child support application in Australia.
Issue #2 – Reasonable Opportunity to Be Heard
[14] Mr. Clarke argues that Ms. Clarke should have used the ISOA process to bring her support application and not the Australian system. Had she done so, he says, the application would have gone to the designated authority for service and he would have been afforded the opportunity to be heard in Ontario. In this regard, Mr. Clarke points to his limited financial resources to deal with support issues in a foreign jurisdiction. His income information indicates minimal income in recent years.
[15] Mr. Clarke’s counsel referred me to two cases. The first is Browning v. Browning, 2008 ONCJ 388 where Justice E. Murray found that 4 weeks was not reasonable notice for a party in Ontario to respond to a proceeding in Germany. There the respondent was of modest means and without the financial resources to hire counsel or travel to Germany to appear on his own behalf. Justice Murray cites the decision in Waszczyn v. Waszczyn, 2007 ONCJ 512 which is the second case I was referred to by Mr. Clarke’s counsel.
In Waszczyn, the issue before Justice S. Sherr was the registration in Ontario of a child support order made in Poland. Sherr J. found that the respondent had been denied a reasonable opportunity to be heard and set aside the registration. He said it was unrealistic to expect that persons of modest means have the financial resources to litigate in jurisdictions as far away as Poland and added that Ms. Waszczyn should have used the procedure set out under Part 2 of the Act to bring her support claim. That would have ensured the respondent a reasonable opportunity to be heard in Ontario. This is the argument advanced by Mr. Clarke. Sherr J. did not, however, say that applicants must bring their applications under the ISOA but warned that those who choose not to use that process run the risk that their foreign support order will not be enforced if it is determined that the respondent did not have a reasonable opportunity to be heard.
[16] In my view, the key distinction between the situation here and the decisions in Browning and Waszczyn is the administrative process in Australia for assessing and establishing child support. It is not a judicial process. Mr. Clarke was not faced with the cost of retaining counsel or the expense of travelling to appear in court. What was required of him in order to be heard was the production of information to the Australian government to confirm his income and his address. He had the ability to provide this basic information but did not.
[17] As Justice Sherr observed in Waszczyn, the ISOA procedure was created to ensure fair process for support payors facing proceedings in foreign jurisdictions. Considering the circumstances of this case, I am of the view that the administrative system in Australia also offers fair process to payors. Accordingly, I find that Mr. Clarke was given a reasonable opportunity to be heard.
Disposition
[18] Mr. Clarke’s motion is dismissed and the registration is confirmed.
[19] If the parties cannot agree on costs, they may file written submissions within 21 days. Submissions shall be no more than 2 pages, double spaced. If no submissions are received during this 21 day period, the parties are deemed to have settled the cost issue as between themselves.