Court File and Parties
COBOURG COURT FILE NO.: FC-12-142-02
DATE: 20210628
SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: Sarah Shipley, Applicant
AND:
Douglas Bingham, Respondent
BEFORE: The Honourable Mr. Justice R.E. Charney
COUNSEL: No one appearing for the Applicant
Holden Agnew-Pople, Counsel for the Respondent
HEARD: June 24, 2021
Endorsement
[1] The respondent, Douglas Bingham, brings this motion for an Order that the registration in Ontario of an Australian child support order registered under the Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13, (ISOA) be set aside.
Facts
[2] The respondent is a Canadian citizen and resident of Ontario. The applicant is an Australian citizen and resident of Australia. They had a relationship in Ontario in 2004 – 2005. The relationship ended in April 2005 when the respondent was convicted of drug-related offences and received a custodial sentence. The applicant was deported from Canada and returned to Australia.
[3] In August 2005 the applicant gave birth to a daughter. The respondent has never met the daughter but recently began some sporadic on-line communications with her.
[4] On March 24, 2021, the applicant was served with a Form 37D: Notice of Registration of Order, dated March 23, 2021 (Form 37D). The purpose of this registration was to enforce a child support order made by the Australian government against the respondent.
[5] The Australian support order does not originate with a court, but with the Australian Government Child Support Agency. This support order was issued by that agency on June 22, 2015. The order sets out the amount owing by the respondent for several years (assessment periods) commencing September 26, 2005 and ending July 31, 2016.
Form 37D
[6] Form 37D is issued under Part III of the ISOA, which establishes a mechanism for the registration and enforcement in Ontario of support orders made outside of Ontario.
[7] The relevant provisions of sections 18 and 19 of the ISOA provides:
Receipt of order in Ontario
18 (1) To enforce an order to which this Part applies, the claimant or the appropriate authority of the reciprocating jurisdiction shall send a certified copy of it to the designated authority, together with information about the location and circumstances of any party who is believed to be habitually resident in Ontario or believed to own assets or have a source of income in Ontario.
Sending to court
(2) On receiving the certified copy, the designated authority shall send it, in accordance with the regulations, to the clerk of the Ontario court sitting nearest the place where the party is believed to reside or believed to own assets or have a source of income.
Registration
19 (1) On receiving the order under subsection 18 (2), the clerk of the Ontario court shall register it as an order of the court.
Effect of registration
(2) From the date of registration, the order has the same effect as a support order made by an Ontario court.
Notice
(3) If the order was made outside Canada, notice of its registration shall be given in accordance with section 20, but there is no requirement to give notice of the registration of an order made in Canada.
Same
(4) The registered order may be enforced or varied under this Act with respect to arrears accrued before registration as well as with respect to obligations accruing after registration.
Copies of registered order
(6) When an order has been registered under subsection (1), the clerk of the Ontario court shall,
(a) file a copy with the Director of the Family Responsibility Office under the Family Responsibility and Support Arrears Enforcement Act, 1996, unless the order is accompanied by a notice signed by the person seeking enforcement stating that he or she does not want the order enforced by the Director; and
(b) send a copy to the designated authority.
30-day delay, order made outside Canada
(7) Despite subsection (6), if the registered order was made outside Canada, copies shall not be filed with the Director of the Family Responsibility Office or sent to the designated authority until,
(a) the 30-day period described in subsection 20 (2) has expired without a motion being made to set aside the registration; or
(b) if such a motion is made during the 30-day period, the motion has been finally disposed of.
[8] Once the foreign support order is registered in Ontario, a party receiving a Form 37D Notice of Registration has 30 days in which to challenge the registration of the order. Section 20 of the ISOA sets out the procedure for challenging the registration of a foreign support order and the Court’s authority to set aside the registration of the order:
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,
(a) any party to the order who is believed to reside in Ontario; and
(b) the party required to pay support under the order if that party lives in another jurisdiction and is believed to own assets or have a source of income in Ontario.
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.
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.
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.
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.
Motion to Set Registration Aside
[9] In the present case, the respondent did not bring his motion to set aside the registration within 30 days, but did bring a motion soon thereafter for an extension of time to bring this motion. On April 28, 2021, the order for an extension of time to bring this motion was granted by McLeod J.
[10] Pursuant to that Order the respondent did bring his motion on May 18, 2021.The respondent argues that he did not have any notice of the proceeding in Australia and that he has not had an opportunity to be heard.
[11] In bringing this motion, however, the respondent did not comply with s. 20(3) of the ISOA, which requires the person who brings a motion to set aside the registration of the support order to “give notice of it to the designated authority and to the claimant in accordance with the regulations” (emphasis added). The requirement to serve the “designated authority” at least 10 days before the motion is heard is also referenced in Rule 37(20)(c) of the Family Law Rules.
[12] In Ontario, the designated authority is the Ontario Interjurisdictional Support Order Unit of the Family Responsibility Office. This is made clear in the Form 37D Notice, which states:
If you have reason to believe that:
(a) You did not have notice or a reasonable opportunity to be heard;
(b) The order/agreement is contrary to public policy in Ontario; or
(c) The court that made the order did not have jurisdiction to make it,
You may make a motion (Forms 14 and 14A) to have the registration set aside, but you must do so within 30 day after receiving this notice. You must mail notice of your own motion to the Ontario Interjurisdictional Support Orders Unit at:
Family Responsibility Office
Interjurisdictional Support Orders Unit
PO Box 600 Steeles West Post Office
Toronto ON M3J 0K8
[Emphasis added]
[13] The Affidavit of Service filed with the Notice of Motion indicates that the Notice of Motion was served on the claimant, Sarah Shipley, by email. The Notice of Motion was not served on the Ontario Interjurisdictional Support Orders Unit as required by s. 20(3) of the ISOA, Rule 37(20)(c) of the Family Law Rules, and the Form 37D Notice.
[14] Accordingly, the motion cannot proceed at this time, and is dismissed without prejudice to the respondent recommencing the motion within 20 days of the release of this Endorsement and properly serving the Ontario Interjurisdictional Support Orders Unit.
[15] The extension of time to serve and file the motion granted by McLeod J. on April 28, 2021 is extended for a further 20 days from the release of this Endorsement.
[16] The temporary stay of the enforcement of the Order that I granted on June 24, 2021 continues until that 20 day period has expired without a motion being made to set aside the registration, or, if such motion is made within this 20 day period, the motion has been finally disposed of.
[17] While the respondent does not refer to the history of these proceedings in his affidavit material on this motion, my review of the court file indicates that there is a lengthy history to this proceeding, including a previous Form 37D Notice and corresponding Ontario court order. I am of the view that this history is very relevant to any future consideration of this motion, and so I will detail some of it here so that the parties to the motion may address its relevance to these proceedings when this motion is heard.
[18] As indicated, this is the second time that the respondent has been served with a Form 37D Notice in relation to Ms. Shipley.
[19] The first Form 37D Notice was registered on April 30, 2012, and also dealt with support orders from the Australian Government Child Support Agency. These support orders were issued on October 10, 2011 and covered the following assessment periods: September 26, 2005 to October 31, 2012.
[20] These assessment periods - 2005 to 2012 – cover many of the same years as the March 23, 2021 Form 37D Notice (2005 to 2016).
[21] In response to the first Form 37D Notice, the respondent did file a motion to set aside the April 30, 2012 registration. The motion was served on Robert Snell, counsel for the Ontario Family Responsibility Office, who appeared at the hearing of the motion.
[22] On August 29, 2012, Gunsolus J. issued an Endorsement setting aside the registration of the Australian support order, stating:
Registration of this order is set aside as the order goes beyond the number of years of retroactive child support that a court of Ontario would consider and Mr Bingham was not given any notice of the Australian proceeding at all. He was never given a chance to serve and file materials or set out his financial circumstances. The Australian process should be served upon him should another attempt to pursue this matter be made.
[23] The Court Order as issued and entered stated:
The Registration of the Australian Orders issued October 10, 2011 are set aside.
The Australian process shall be served upon Douglas Bingham should another attempt to pursue this matter be made.
[24] Upon reviewing the Court file, I was surprised that this earlier Endorsement and Order were not made part of the respondent’s affidavit material in support of his motion. I leave it to the Court that hears Mr. Bingham’s motion to assess the effect of this earlier order on the most recent registration of the Australian support order.
Conclusion
[25] This Court Orders:
(a) The respondent’s motion to set aside the March 23, 2021 registration of the Australian support orders is dismissed without prejudice to the respondent recommencing the motion within 20 days of the release of this Endorsement and properly serving the Ontario Interjurisdictional Support Orders Unit (the designated authority).
(b) A copy of this Endorsement shall be served with the Notice of Motion and affidavit filed in support of the motion.
(c) The extension of time to serve and file the motion granted by McLeod J. on April 28, 2021 is extended for a further 20 days from the release of this Endorsement.
(d) The temporary stay of the enforcement of the Order that I granted on June 24, 2021 continues until that 20 day period has expired without a motion being made to set aside the registration, or, if such motion is made within this 20 day period, the motion has been finally disposed of.
(e) I am not seized.
Justice R.E. Charney
Date: June 28, 2021