COURT FILE NO.: FC-17-2107
DATE: 20210706
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DANA KHOURY
Moving Party
– and –
HICHAM MONIR KHOURY
Responding Party
Self-represented
Self-represented
Also present was Mr. Allan Hirsh, appearing as amicus curiae for the ISO unit of the Family Responsibility Office, Ms. Douglas-Cummings, on behalf of the ISO Unit of the Family Responsibility Office, and Ms. Hubova, representative from the Reciprocating Authority (Czech Republic)
HEARD: June 29, 2021
REASONS FOR decision
Audet J.
[1] The matter before me is a motion by the support payor, Mr. Khoury, to set aside the Notice of Registration in Ontario of a child support order made by the District Court in Kladno, Czech Republic, on November 21, 2003 (“the Czech Court”).
[2] The various events which delayed the final hearing of this motion by almost three years have been explained in detail in previous endorsements made by this Court. I will not repeat them here.
Background
[3] The parties married on July 10, 1999 and separated in March 2002. They are the biological parents of Anna-Maria Khoury, born on May 28, 2000. During their relationship, the family resided in Ontario and in the United States. The mother, Ms. Khoury, moved back to the Czech Republic with the child shortly after the parties’ separation in March 2002, and they remain there to this day. Anna-Maria is currently 21 years of age.
[4] Although initially Mr. Khoury visited his daughter in the Czech Republic on a few occasions, he did not maintain an ongoing relationship with her, and the evidence demonstrates that he has not seen her in many years. During one of his trips to the Czech Republic, in November 2003, Mr. Khoury was given notice of a court hearing taking place in the context of a legal proceeding initiated by Ms. Khoury in that country to formalize her custodial rights to Anna-Maria, and to obtain child support. On November 21, 2003, while both parties were present before the Czech Court, an order was made (“the 2003 Final Order”) confirming, among other things, the following:
That the mother was granted sole custody of Anna-Maria, on consent of the parties;
That the father was required to pay ongoing child support in the amount of $600 (CAN) per month for the child;
That the father was required to pay child support arrears in the amount of $12,000 (CAN) within three months.
[5] In 2006, Ms. Khoury initiated another legal proceeding before the Czech Court, seeking only a divorce. Mr. Khoury acknowledges receiving the court documents and states that he did not oppose the divorce, something that is disputed by Ms. Khoury. The evidence does not allow me to assess, with any degree of certainty, whether a divorce order eventually issued.
[6] In any event, in 2007 Ms. Khoury initiated variation proceedings before the Czech Court seeking to increase the child support payable by Mr. Khoury pursuant to the 2003 Final Order. It appears that the court documents never came to the attention of Mr. Khoury, as they were served to him by mail at his former address and were returned unclaimed. On December 5, 2007, a variation order was made by the Czech Court in Mr. Khoury’s absence increasing his child support to $1,200 (CAN) per month (“the 2007 Variation Order”).
[7] After the 2003 Final Order was made, Mr. Khoury began paying his monthly child support, sometimes paying much more than the $600 required to be paid. It is not disputed that he met his child support obligations consistently until 2015, at which point he stopped paying any child support at all. At that time, Anna-Maria was only 15 years old and still a dependant child. As a result, Ms. Khoury sought assistance from the Czech Central Authority to enforce both the 2003 Final Order and the 2007 Variation Order in Ontario, where Mr. Khoury continues to reside.
[8] Although initially both of these Orders were registered with the ISO Unit of the Family Responsibility Office in Ontario (“the FRO”) for enforcement, during the hearing before me, the FRO was no longer seeking to enforce the 2007 Variation Order, but only the 2003 Final Order requiring Mr. Khoury to pay child support in the amount of $600 per month. I take it from this stated position that the FRO acknowledges that Mr. Khoury did not receive notice of the 2007 proceedings initiated by Ms. Khoury.
[9] Within 30 days of receiving notice of the registration of these two Orders with the FRO, Mr. Khoury filed his motion to set aside their registration in Ontario. Although Mr. Khoury’s Notice of Motion only sought to set aside the 2007 Variation Order, given the FRO’s stated position that it only sought to enforce the 2003 Final Order, Mr. Khoury was permitted to present evidence and arguments in that respect.
Legal Framework
[10] The court’s power to set aside the registration of a support order made in a reciprocating jurisdiction outside of Canada is found at s. 20(4) of the Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13, which provides:
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.
[11] Therefore, unless the support payor is able to satisfy the court that one of the situations described in subparagraph (4)(b) is present, the court does not have the discretion to set aside the registration of the reciprocating jurisdiction’s Order, even if on the evidence before the court it would be satisfied that the child support Order is incorrect, excessive or based on an incorrect income.
Analysis
[12] It is clear that the Czech Court had the jurisdiction to make a child support order in relation to Anna-Maria. By the time the Order was made, Anna-Maria had been a resident of the Czech Republic for at least one year. At the time the Order was made, the Czech Court was aware of and alive to the fact that there was a threshold jurisdictional issue that needed to be determined. In its decision, the Czech Court spent quite some time explaining the circumstances of the parties and considered whether it had jurisdiction to grant the relief sought by Ms. Khoury. It found that it did, and I have no reason to question its conclusion in that regard.
[13] It is also not disputed that Mr. Khoury had notice of the hearing and that he had a reasonable opportunity to be heard. Indeed, the court clearly stated that “The father agreed that the child should be given into the custody of the mother and he refused to provide any position on the amount of the child support and he also refused to provide any position on his property and income situation.”
[14] Before me, Mr. Khoury states that although he attended the hearing, he does not speak the language and was not represented by counsel. He acknowledges that there was an English translator present, but he says that he does not feel as though things were being adequately translated, pointing out to some pieces of information that did not make their way into the court’s decision. For instance, Mr. Khoury states that Ms. Khoury took Anna-Maria to the Czech Republic without his consent, a fact that he clearly brought to the attention of the Czech Court, but that is not reflected in its decision.
[15] I do not accept Mr. Khoury’s evidence in that regard. Firstly, even if it was true that Ms. Khoury did not seek Mr. Khoury’s consent to relocate to the Czech Republic, Mr. Khoury acknowledges that he did not bring court proceedings seeking her return to Canada (including under the Hague Convention). Further, it is not disputed that, during the hearing before the Czech Court, Mr. Khoury consented to the court making a final order granting Ms. Khoury sole custody of Anna-Maria.
[16] Mr. Khoury also states that while the Czech Court’s decision refers to him “refusing to provide certain information”, he does not recall having refused to answer any question. He states that he did not take the stand and that he was never questioned under oath. He adds that he was asked questions by the judge and that he answered those questions, as translated by the English interpreter, to the best of his ability.
[17] I find, based on the evidence before me, that Mr. Khoury had reasonable notice of the proceedings and hearing before the Czech Court and that he had a reasonable opportunity to be heard. I note that, while Ms. Khoury was asking for a child support order of $1,700 (CAN) per month, she was only granted $600 (CAN) per month. This is clearly indicative of the fact that Mr. Khoury’s evidence and submissions have been heard and considered by the Czech Court.
[18] There is no suggestion being made by Mr. Khoury that the 2003 Final Order is contrary to public policy in Ontario. It is clear that the father had the means to pay the child support ordered by the Czech Court in 2003, since he fulfilled his obligations in that regard until 2015 without fail, often paying well above the $600 ordered.
[19] While I acknowledge that there may have been changes in the father’s or the child’s circumstances which could support a variation of Mr. Khoury’s child support obligations at this time, this is not an issue that is before me in the context of this motion. This must be addressed by way of variation proceedings.
Conclusion
[20] Based on all the above, a final order will issue confirming the registration of the 2003 Final Order in Ontario. The registration of the 2007 Variation Order, however, is hereby set aside.
Madam Justice Julie Audet
Released: July 6, 2021
COURT FILE NO.: FC-17-2107
DATE: 20210706
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DANA KHOURY
Moving Party
– and –
HICHAM MONIR KHOURY
Responding Party
REASONS FOR decision
Audet J.
Released: July 6, 2021