Superior Court of Justice – Ontario

COURT FILE NO.: AP-97-20 DATE: 2021-08-10

BETWEEN:

Interjurisdictional Support Orders Unit Director, Family Responsibility Office for the benefit of Catarina Elisabet Krause Applicant/Respondent on Appeal

– and –

Hassan Bougrine Respondent/Appellant on Appeal

COUNSEL: Heather Puchala and Liisa Parisé, for the Applicant/Respondent on Appeal Dhiren Chohan, for the Respondent/Appellant on Appeal

HEARD: June 22, 2021

DECISION ON APPEAL

CORNELL, J.

Introduction

[1] Children born and raised in Finland. A divorce in Finland in 2004. A custody order in Finland. A child support order in Finland. An order for custody in Morocco. An abduction. An INTERPOL arrest warrant. A conviction for kidnapping. In 2019, confirmation of custody in Finland. And now, an order for ongoing and arrears of child support in an amount of $179,000 from the Ontario Court of Justice.

[2] Against this background, I must consider an appeal from the final order of Guay, J. dated October 19, 2020, whereby he ordered that the appellant pay ongoing child support in an amount of $2,463 per month together with arrears of child support in the amount of $179,667.20 despite the existence of a previous valid child support order made some years ago in Finland.

[3] In accordance with the reasons that follow, the appeal is allowed, and the decision is quashed.

Background

[4] The order that is under appeal provides for the payment of child support for Karim Krause, born December 23, 2002, and Salma Krause, born September 7, 2004. The appellant, Hassan Bougrine, married Catarina Krause on January 7, 2003, in Turku, Finland. The marriage was of short duration. On February 18, 2003, Ms. Krause filed for divorce in Finland. Mr. Bougrine was personally served with the divorce application. The divorce became final on March 3, 2004. Ms. Krause was present when Mr. Bougrine received this documentation.

[5] The divorce confirmed that Ms. Krause had sole custody of Karim. At the time of the divorce, Salma was not yet born.

[6] In November of 2008, Mr. Bougrine initiated court proceedings in Finland seeking custody of the children. Ms. Krause responded by requesting an order for child support. Mr. Bougrine was present at the hearing and represented by a lawyer in all stages of the case. On June 8, 2010, the court decided:

1. Ms. Krause maintained sole custody of the children;
2. Access was granted to Mr. Bougrine with the express prohibition that he not remove the children from Finland; and
3. Mr. Bougrine was to pay 350 Euros per child per month in child support.

[7] Mr. Bougrine appealed. His appeal was dismissed by the Turku Court of Appeal on July 5, 2011. Mr. Bougrine was also present and represented by a lawyer during the appeal proceedings.

[8] Mr. Bougrine’s access to the children was modified by the Finnish District Court on June 10, 2015. That order allowed only supervised contact between Mr. Bougrine and the children via telephone or Skype once a month for 30 minutes in a place assigned for supervised contact between parents and children. Finnish social authorities terminated the supervised contact on the grounds that Mr. Bougrine repeatedly breached the rules for the supervised contact between him and the children.

[9] The District Court of Varsinais-Suomi (No. R14/4490) imposed a restraining order on Mr. Bougrine as he was considered a threat to the children. This restraining order was renewed on May 11, 2018.

[10] On December 24, 2014, the Finnish order for child support was registered in Ontario pursuant to the provisions of the Interjurisdictional Support Orders Act. Notice of the registration was provided to Mr. Bougrine who brought a motion to set aside the registration.

[11] On February 9, 2015, Mr. Bougrine obtained a Kingdom of Morocco judgment that, among other things, provided that he did not have to pay child support as the children are illegally in the custody of their mother. In coming to this conclusion, the Court of Appeal in Rabat stated:

… the appellant (Ms. Krause) is Christian unlike the children subject of the custody who are Muslims, and the fact that they live with her far away from the supervision of their father may obliterate their Moroccan and Muslim identity, and even the conventions and treaties which were used above as an argumentation confirm the necessity of protecting the child physically, mentally and also at the level of identity and religion, which makes all the causes of appeal unfounded and baseless; the appealed judgment is therefore founded and should be approved in its part cancelling the custody of the appellant (Ms. Krause).

[12] On March 9, 2015, registration of the Finnish order in Ontario was set aside following a motion brought by Mr. Bougrine.

[13] On September 30, 2019, the Finnish court confirmed that the children are to remain in the custody of Ms. Krause and that the child support order is to continue. Mr. Bougrine participated in these proceedings.

[14] On October 19, 2020, the order that is the subject matter of this appeal was made in the Ontario Court of Justice.

[15] In October of 2012, the children were abducted by Mr. Bougrine and taken to Morocco. When Ms. Krause learned that the children had been abducted and were in Morocco, she immediately initiated proceedings under the Hague Convention. An international warrant for the arrest of Mr. Bougrine was issued by INTERPOL. During the ensuing investigation, it came to light that Mr. Bougrine had obtained Moroccan passports for the children issued in false names.

[16] On December 7, 2012, the First Instance Court of Khemisset in Morocco ordered that the children were to be immediately returned to Ms. Krause in Finland. When the order came to Mr. Bougrine’s attention, he fled with the children and remained in hiding. Mr. Bougrine’s appeal of the Moroccan court order that required the children to be returned to Finland was dismissed on March 18, 2013. In October of 2013, the Moroccan police were able to locate Mr. Bougrine and the children. They returned to Finland on October 26, 2013.

[17] Mr. Bougrine was arrested and was convicted of child abduction by a Moroccan court. The conviction was upheld on appeal.

[18] For a brief period of time in 2009 and 2010, Mr. Bougrine paid child support in an amount of 260 Euros per month per child. Since June of 2010, the record indicates that Mr. Bougrine has not paid any child support whatsoever.

The Issues

[19] The issues put forward by counsel include:

1. Did the Ontario Court of Justice have jurisdiction to make the child support order?
2. Did the court commit an error of law by failing to recognize the Moroccan court order of February 9, 2015?
3. Did the court commit an error of law by failing to stay the proceedings in Canada while legal proceedings were under way in Morocco and Finland?
4. Did the court commit an error of law by ordering retroactive child support back to the date of the 2010 Finnish order?
5. Did the court commit an error of law by failing to terminate support for Karim?
6. Should Catarina Krause be a party to the appeal as she is the child support recipient?

Analysis

Setting Aside of Registration

[20] On June 8, 2010, the Finnish court awarded custody to Ms. Krause and ordered Mr. Bougrine to pay child support in an amount of 350 Euros per month per child. Mr. Bougrine appealed that order. His appeal was dismissed on July 5, 2011.

[21] For reasons that are not clear, the Finnish court order for child support was not registered in Canada until December 24, 2014. On March 9, 2015, Lische J. granted Mr. Bougrine’s application and set aside the registration of the Finnish child support order. Justice Lische’s endorsement explains that the registration was set aside because Mr. Bougrine:

“did not have proper notice or a reasonable opportunity to be heard. The respondent, Hassan Bougrine, obtained custody of the children on February 10, 2009 by a court in Morocco. Apparently, some time after that, in 2009, Catarina Elisabet Krause obtained an order for custody of the children in Finland… there is no evidence that the respondent, Hassan Bougrine, was made aware of the child support proceeding as he likely would have appealed it through the Hague Convention as well at the time he appealed the custody order. The respondent argues that he did not have proper notice or a reasonable opportunity to be heard on the issue of the child support order made in Finland. There is no evidence to the contrary. The issue of enforcement should be dealt with in Morocco, along with the other issues, which are awaiting a date to be heard in Morocco. Both parties have legal representation there. Furthermore, I note that the respondent, Hassan Bougrine, who was temporarily in Sudbury, Ontario, Canada, for employment is done his employment in April 2015. The respondent, Hassan Bougrine, resides in Morocco primarily and will be leaving Canada to return to Morocco in April 2015 (a few weeks from now).

[22] In the preamble to her decision, Justice Lische indicates that she had reviewed the notice of motion of the respondent as well as two affidavits filed by him. Although the preamble goes on to indicate that the court heard submissions on behalf of the applicant and the respondent, there is nothing to suggest that any responding material had been filed. The apparent absence of any responding material is particularly problematic as it is very clear that the material that was filed by Mr. Bougrine misled the court.

[23] Mr. Bougrine was personally served with the originating Finnish application, was present during those proceedings and had the benefit of legal counsel. Unhappy with the result of those proceedings, Mr. Bougrine appealed. His appeal was unsuccessful. How could it possibly lie in the mouth of Mr. Bougrine to allege that he had no notice of those proceedings when he filed an appeal?

[24] It is also clear that Mr. Bougrine misled the court by suggesting that he obtained custody of the children on February 10, 2009, from a court in Morocco. The record before me discloses that no such order was ever made. Mr. Bougrine further misled the court by suggesting that he was “temporarily in Sudbury for employment and that his permanent residence was in Morocco”. This is patently false. Mr. Bougrine had worked at Laurentian University as a full-time professor since 2007. He was the Chair of the University’s Commerce Department. The record before me indicates that Mr. Bougrine has had a driver’s licence in Canada since 2007 and that he owns real property in Canada.

[25] Given this background, it is clear that the order made by Lische J. to set aside the registration was based upon an incomplete record and the misleading information that was provided by Mr. Bougrine. Had the correct information been before the court, it is clear that Mr. Bougrine’s efforts to set aside the registration would have failed.

[26] In these circumstances, the proper course of action would have been to appeal Lische J.’s order. Unfortunately, and for reasons not clear to me, that did not occur. Nothing occurred until December 21, 2018, when the ISO Unit brought a motion for an application for support pursuant to ss. 20 and 21 of the ISO Act. Although s. 21 of the ISO Act requires that an Ontario court that sets aside registration of a foreign order for enforcement in Ontario must treat the foreign order as if it were an application for support, that step was not taken in a timely fashion.

Jurisdiction

[27] Section 21 of the ISO Act is, in my opinion, a curious provision in that the court “must treat the foreign order as if it were an application for support”. The learned judge did what the section mandates and proceeded to assess Mr. Bougrine’s total outstanding child support arrears as of May 1, 2019, to be $179,667.20. This was to be repaid at the rate of $300 per month. Based upon an imputed 2019 gross annual income of $181,558, Mr. Bougrine was ordered to pay the sum of $2,463 Canadian for the support of the two children, such payments to commence on June 1, 2019.

[28] In doing so, the court avoids addressing the issue that the result is that there are now two child support orders in existence, one in Finland and one in Canada. The court acknowledges that s. 21 of the ISO Act does not invalidate the Finnish order and proceeds with the application saying in para. 24 “because section 21 of the ISO has the effect of converting the original foreign order of 2010 into an application going forward”. The Ontario proceedings, as the court correctly pointed out, have no bearing whatsoever on the existence and validity of the Finnish court order for child support. In my opinion, the existence of two valid court orders for support is quite problematic. I will address some of the problems that exist later in my decision.

[29] Counsel for Mr. Bougrine cited the following passage from Cheng v. Liu, 2017 ONCA 104 as follows:

[40] In Pageau, James J. conducted a lengthy review of the jurisprudence on this question. He held, at para. 9, that following a divorce, the court that granted the divorce would have exclusive jurisdiction over child support in the following situations:

(a) whenever the divorce court has granted child support, no matter how nominal or how limited in time;

(b) whenever the divorce court, after considering the question of support, has refused to grant it or rejected the prayer to grant it; or

(c) whenever the divorce court has reserved its right to make subsequent pronouncements on support.

[41] According to James J., in any such situation, a court acting under the provincial statute would be barred from dealing with the issue of child support. Where, however, the divorce court has not dealt with child support in one of these three ways, then there is scope for the operation of provincial law, even if the divorce court has exercised its jurisdiction in making a custody order.

[42] Similarly, in French v. Mackenzie, 2003 CanLII 2023 (ON SC), [2003] O.J. No. 1786, 38 R.F.L. (5th) 81 (S.C.J.), at para. 8, Kennedy J. explained that “[i]f there has been a divorce but no child support order was made under the Divorce Act, the option exists to bring child support proceedings under either federal or provincial legislation”. In that case, there had been a divorce granted, but no adjudication on child support, as there had been an informal agreement between the parents. Kennedy J. held that the mother had the option of bringing her child support application under the FLA, or as a corollary relief proceeding under the Divorce Act. This case was cited most recently in Durso v. Mascherin, [2013] O.J. No. 4803, 2013 ONSC 6522 (S.C.J.). Chappel J. noted, at para. 14: see para. 50:

[T]he parties were divorced on May 18 2001, in the context of a Divorce Application that did not include any child support claims. The court dealing with the divorce did not in any way adjudicate on the matter of child support. In such circumstances, either party had the right at a later time to commence a new proceeding to advance child support claims under either the Divorce Act as a separate corollary relief proceeding, or pursuant to the Family Law Act.

[43] This line of jurisprudence is helpful in the analysis of the issue in the present case. It stands for the proposition that where a court issuing a divorce has not adjudicated the issue of child support, provincial legislation is a valid means of seeking a child support remedy.

[30] The decision in Cheng has been heavily cited since its release in 2017 and has had mostly positive treatment. It has been cited in Halsbury’s Laws of Canada, Family Text and the Halsbury’s Laws of Canada - Conflict of Laws text. Moreover, the decision of Pageau has received strong positive treatment since its release in 1986.

[31] In this case, both children were born in Finland and, with the exception of the period of time that they were abducted and taken to Morocco, have always lived in Finland with their mother. The parties were divorced by a Finnish court order. The Finnish court also made an order granting Ms. Krause custody of the children and awarding her child support. As previously set out, Mr. Bougrine’s appeal from this order was dismissed. According to Cheng, this means that the Finnish court has exclusive jurisdiction over child support because such court granted the divorce and issued an order for child support. According to Pageau, a court acting under a provincial statute would be barred from dealing with the issue of child support in these circumstances.

[32] On the facts of this case, Cheng would also preclude the situation that we have here, namely the existence of two valid child support orders. The ISO Act was created to establish a uniform method and system for the parties seeking to obtain, to challenge or to vary child support orders issued where the parties reside in different jurisdiction. The chaos created by competing child support orders is surely inconsistent with these objectives and can hardly be said to be part of a “uniform system”.

[33] I will now address some of the problems that I mentioned earlier. These problems were not identified or addressed in the decision that is being appealed.

[34] The material before me indicates that Finland has a system whereby if the payor does not make the payments, such payments are made by the Social Insurance Institution of Finland (the “Institution”). The right to receive the child support payments is then transferred to the Social Insurance Institution of Finland. Accordingly, the material before me indicates that the Institution has the right to collect maintenance commencing January 2014 and monthly thereafter.

[35] Some other Finnish policies are noteworthy. The child support is indexed with the result that as of 2019 the child support payments are 398.13 Euros. Penalty interest is charged on overdue amounts. According to Finnish law, arrears of support are extinguished after five years.

[36] The main problems are obvious. Ms. Krause having received support payments from the Institution, the existence of the Ontario order results in the potential for double recovery. Beyond that, the existence of the Ontario child support order does nothing to address or extinguish the right of the Institution to proceed with its subrogated rights to recover from Mr. Bougrine the amounts that are properly owing under the Finnish child support order.

[37] Cheng should provide a complete answer on the issue of jurisdiction, but recently, it has been called into question in Leavens v. Fry, 2020 ONSC 5077. Leavens involved two parties who met in Toronto and married in Australia. Two children were born while they lived in Australia. They moved to Connecticut until they separated in 2018. A Connecticut court granted a divorce in September 2018. The divorce judgment incorporated certain terms contained in a separation agreement. In 2019, the Connecticut Superior Court granted a motion by the applicant father to relocate with the children to Toronto. The respondent mother continued to reside in Connecticut.

[38] After moving to Ontario, the father brought an application to the Ontario Superior Court seeking, among other things, child support. The court determined that it had jurisdiction to hear the application despite the fact that the separation agreement that had been incorporated in the divorce judgment addressed the issue of child support. The parties had previously agreed to deviate from the child support guidelines in Connecticut and agreed that no child support would be paid, but that there would be an equal sharing of extra expense. The respondent mother argued that the applicant ought to have proceeded under the ISO Act to vary the child support terms, but the applicant argued that proceeding under the Family Law Act was preferable so as to avoid a multiplicity of proceedings. The court agreed. In doing so, the court said:

[47] Despite the respondent’s able submissions, I do not read Cheng as standing for the general proposition that Ontario will only have jurisdiction to make an order for child support under the FLA following a valid foreign divorce when the divorce order is silent about child support and/or the foreign court has not adjudicated the issue of child support. In my view, the Court of Appeal for Ontario determined that Ontario courts have authority to award child support under the FLA and there is nothing in the legislation that restricts that authority in situations where a divorce order has been issued outside of Canada.

[48] My reading of Cheng finds support in the decision of Rubio v Joslin, 2018 ONCJ 167 when Justice O’Connell stated as follows:

“Can the Court of Appeal's ruling in Cheng v. Liu be extended to permit an applicant to claim child support under the Family Law Act if the foreign divorce contains a support order?

The Court of Appeal in Cheng v. Liu did not answer this question. Prior to the release of Cheng v. Liu, there appears to be a number of conflicting lower court decisions regarding this issue.”

[49] There does not appear to be any appellate authority squarely on point with the facts of this application. However, a review of further relevant jurisprudence discloses that while the Court should typically refrain from exercising jurisdiction under the FLA over issues of child support where there is a valid and subsisting foreign order (ie. the “disguised variation” concern in Sun), when child support claims are brought together with custody claims, the Court does maintain a discretion to take jurisdiction over both issues and hear them together. [Emphasis added.]

[39] The preceding paragraph acknowledges that the court should typically refrain from exercising jurisdiction under the FLA over issues of child support where there is a valid and subsisting foreign order. In addition, Leavens can be distinguished on the basis that the application made in that case was under the Family Law Act which was appropriate given the fact that custody claims were advanced, and the children were resident in Ontario thereby bringing into consideration s. 22(1)(a) of the Children’s Law Reform Act. These considerations do not apply in this case as no claim for custody is involved and the statute in question is the ISO Act.

Conclusion

[40] As I have previously set out, Mr. Bougrine has gone to considerable lengths to provide misleading and false information to the various courts that have dealt with this matter. In their judgment dated September 30, 2019, the District Court of Southwest Finland speaks to the appellant’s conduct over the history of the legal matters in this case. The court concludes “It transpires from the decision of a Moroccan Court of Appeal in 2015, letters of the Finnish Ministry of Justice in 2017, the reasons in May 2019 and order of an Ontario Court on June 21, 2019, the statement by Bougrine’s Canadian attorney at law in 2019 and the statement by A.A.L. Firlema Kivikoski in 2019 that Bougrine has continued to submit false information to the authorities in matters concerning the children’s residence, right of access and maintenance”. The Finnish court continues, stating it concurs with the assessment presented in previous decisions, “that Bougrine cannot differentiate the child’s best interest from his own objectives, which may be contrary to said best interests”. Despite the existence of a current Finnish restraining order that provides that Mr. Bougrine is not to meet or have contact with the children, the evidence indicates that Karim “has been subject to continuous heavy influence from his father”. Given this record, I can do nothing but criticize and condemn the actions of Mr. Bougrine who, for many years, has managed to avoid his child support obligations despite earning a substantial income in Canada during that time.

[41] That being said, it is my opinion that Cheng provides the answer that the appellant seeks. At the risk of repetition, the fact of the matter is that both children were born in Finland. They have spent their entire lives in Finland except for the time when they were abducted by Mr. Bougrine. A Finnish court granted the divorce. A Finnish court created a child support order in favour of both children. Mr. Bougrine participated and was represented in those proceedings including the appeal that he brought.

[42] I have detailed the particular problems in this case brought about by the existence of two child support orders namely, the potential for double recovery and the fact that the existence of the Ontario child support order does not extinguish the validity of the Finnish order nor does it affect the rights of subrogation that rest with the Institution.

[43] The decision under appeal is quashed for want of jurisdiction. As a result, I need not address the balance of the issues that were raised during the course of the appeal with one exception.

[44] In view of the fact that Ms. Krause is the child support recipient, it is my view that she is a proper party to these proceedings, particularly in light of the fact that she and she alone can provide the true history of the matter. I leave open the question whether the Institution also has a right to participate in future proceedings in view of its right of subrogation.

[45] Given my finding that Mr. Bougrine provided false information at the time that the registration of the Finnish child support was set aside, it is my opinion that a fresh application to register the order made on June 8, 2010 by the Finnish court should be brought on proper material. This will avoid the problems created by the existence of competing child support orders. This will permit the amount of arrears to be calculated in accordance with that initial court order that was unsuccessfully appealed by Mr. Bougrine. If appropriate, it may also allow the Institution to exercise its right of subrogation.

Costs

[46] Despite the fact that Mr. Bougrine has been successful in the appeal, this is not a case for costs to be awarded to the successful party given Mr. Bougrine’s conduct as detailed and the efforts that he has made to avoid his child support obligations.

The Honourable Mr. Justice R. Dan Cornell

Released: August 10, 2021

COURT FILE NO.: AP-97-20 DATE: 2021-08-10

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Interjurisdictional Support Orders Unit Director, Family Responsibility Office for the benefit of Catarina Elisabet Krause Applicant/Respondent on Appeal

– and –

Hassan Bougrine Respondent/Appellant on Appeal

DECISION ON APPEAL

Cornell, J.

Released: August 10, 2021