NEWMARKET COURT FILE NO.: FC-16-52382-00 DATE: 20230113 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: Rafa Taimish Applicant – AND – Zaid Al-Kadhimi Respondent
Annette Di Nardo, Counsel for the Applicant James D. Singer, Counsel for the Respondent HEARD: January 11, 2023
Ruling on MOTION
A HIMEL J.:
Overview and Background Facts
[1] On December 5, 2016, the Applicant “mother” commenced an Application requesting parenting orders, retroactive and ongoing child support and section 7 expenses and a restraining order pursuant to the Divorce Act, [1] and the Family Law Act. [2]
[2] At various times since the commencement of this matter, the Respondent “father”, who has been represented by five different family law counsel, raised the issue of the Court’s jurisdiction to adjudicate the child support issues. The father has been actively involved in this litigation, including the provision of an Answer (that contains parenting claims), financial disclosure, attendances at conferences and motions, and participation in a Section 30 [3] parenting assessment. In April 2021, the father consented to a without prejudice child support order that requires him to pay the table amount of monthly support and 80% of the child’s section 7 expenses.
[3] The facts, allegations and issues described below are set out in each party’s affidavit as well as the attached Ontario and Michigan pleadings, orders, endorsements, excerpts from the Section 30 assessment and other exhibits.
[4] By way of background, the parties married on July 5, 2003, and separated in November 2009. At that time the family resided in Michigan. Immediately following the separation the mother and the child, Mariam Al-Kadhimi (now age 16) fled to a family member’s home in Ontario. The parties disagree as to whether this was on consent, however, the father never brought an urgent motion for the child’s return to Michigan.
[5] The mother commenced a divorce proceeding in Michigan on April 28, 2010. The final resolution was a Consent Judgment of Divorce in Michigan dated April 26, 2011 (the “Divorce Judgment”), which replaced an interim order dated August 27, 2010. Both parties were represented by counsel.
[6] The mother brought the proceeding in Michigan as the parties were already engaged in negotiations with counsel in that jurisdiction, and all of the family law issues could be resolved in that state. Given that the child was habitually resident in Ontario by April 28, 2010, the mother could have commenced a proceeding here to address the parenting and support issues.
[7] The Divorce Judgment did resolve all family law issues and included terms for joint legal custody, a regular and holiday parenting time schedule for the father, a resolution of the property and spousal support claims, and the following child support terms: that the father shall pay a set amount of $1,700 (U.S.) per month, the termination date shall be no later than age 19.5 years, and that the father shall provide a MET College fund contract (value unknown). The order prohibited either party from bringing any retroactive variation in the future.
[8] In 2013, the father relocated to Georgia and now resides in Nebraska.
[9] From December 2010 to July 2016, the father had parenting time with the child, although there were challenges with same. The parents usually met in London, Ontario or took turns driving the child to Michigan (which is where the father exercised his parenting time).
[10] On August 17, 2016, the father brought a Motion for Modification of Parenting Time in Michigan because of his relocation. He requested a long-distance parenting time schedule. The father alleged that mother was limiting his time on weekends and failed to comply with the Divorce Judgment summer schedule. [4]
[11] At some point in August 2016, the mother unilaterally suspended the father’s parenting time because the child (then age 9) had changes in her behaviour following access visits. The mother alleged that the child experienced trauma during the father’s parenting time and that he provided poor care and used physical discipline. Moreover, the child requested not to visit with the father, and her counsellor and teachers recommended that the visits be suspended. [5]
[12] As stated above, on December 5, 2016, the mother commenced this Application for the following relief: sole custody, supervised access, child support and all section 7 expenses (approximately $32,000 per year) retroactive to December 2010, and a restraining order. The mother alleged a history of family violence and concerns about the father’s parenting. She offered to facilitate supervised access in Ontario, stating that it was in the best interests of the child to maintain a loving relationship with the father.
[13] On November 30, 2016, the mother brought a motion in Michigan to dismiss the father’s claims for lack of jurisdiction. On May 5, 2017, the father’s proceeding was dismissed as neither party resided in Michigan.
[14] The father filed an Answer in this proceeding dated October 13, 2017. He requested a Section 30 parenting assessment and an order enforcing the parenting time provided in the Divorce Judgment or, in the alternative, some other parenting time order. The father had not seen the child since August 2016. [6] He objected to changing the joint major decision-making and took the position that child support must be addressed in the Michigan Court or by way of the Interjurisdictional Support Orders Act, 2002 [7] (“ISOA”).
[15] The father’s Answer responded to (and denied) the mother’s allegations of poor parenting and family violence. He acknowledged meeting with a court-appointed child psychologist for an evaluation of the father and child after the issuance of the Divorce Judgment. The psychologist found no merit in the Applicant’s allegations that the child was scared and traumatized by him. The father also met with child protective services of Michigan in July 2011 following a complaint made by the mother. They concluded that the allegations were baseless. In May 2012, the father was charged with attempted assault, however, that case was dismissed.
[16] Dr. Helen Radovanovic commenced a Section 30 parenting assessment in November 2019, that was completed on February 16, 2021. During the assessment the child refused to attend any virtual meetings with the father, her half-sister or step-mother. The assessor concluded that the child did not provide explicit reasons for her strong opinion that she did not wish to have contact with her family. The assessor recommended a continuation of joint decision-making, and parenting time in accordance with the child’s (then age 15) wishes. She declined to recommend supervised access. Following the delivery of the report the mother agreed to support reunification therapy. I have no evidence as to whether that was initiated or whether the child has had any contact with the father.
[17] The father now brings a motion for summary judgment in respect of all child support claims. He submits that the Court lacks the required jurisdiction as the parties are obliged to address these issues through ISOA.
[18] To support her request that the father’s motion be dismissed, the mother relies on several “bad facts.” The father delayed bringing this motion to the eve of trial. Moreover, on December 17, 2019, the father’s prior counsel advised that he agrees and consents to the Ontario court having jurisdiction over child support since the date of issuance of pleadings, and ongoing. [8] The Divorce Judgment includes a lesser amount of child support, no section 7 expenses, and has an earlier termination date than what would be ordered by an Ontario Court: It is the child’s right to appropriate support. [9] The father attorned to the jurisdiction when he filed an Answer (with his own claims) and other documentation, through the provision of disclosure, given his participation in the litigation, and by consenting to the without prejudice order. [10]
[19] From the father’s perspective the mother has had “bad behaviour” leading to his estrangement from the child, and to this Application for a higher amount of child support than was agreed to in the Divorce Judgment. He alleges after-the-fact forum shopping regarding child support. He also complains about the mother’s attempts to secure a contribution to the child’s private school (and other section 7 expenses) since he was never consulted with nor consented to same (in violation of the joint legal custody order). Added amounts were not agreed to in the Divorce Judgement, and any future claim for a retroactive variation was barred.
[20] The mother concedes that no claims can proceed under the Divorce Act.
[21] For the reasons that follow, I find that the child support provisions contained in the foreign divorce cannot be “varied” or “replaced” with a provincial order for child support in Ontario. The window that permits such an order is small, and the facts of this case do not fall within it. The route to varying the child support is ISOA.
[22] The mother’s claims for retroactive and ongoing child support and section 7 expenses pursuant to sections 31 and 33 of the Family Law Act are dismissed.
Analysis
[23] The mother’s arguments to dismiss the father’s motion focus on: (1) the child’s right to child support and the inability of the parents to bargain away such a right. She argues that child support should be adjusted in accordance with the Child Support Guidelines; [11] (2) the Court’s jurisdiction pursuant to the doctrine of Jurisdiction simpliciter (which includes consideration of the real and substantial connection test); (3) the Court’s jurisdiction when a foreign divorce provides for child support; (4) attornment; and (5) the notion that ISOA is not the exclusive means to adjust child support.
[24] While the Court has empathy with the mother’s position, particularly since she and the child reside in Ontario, and the father now resides in Nebraska, the parties agreed to the terms of the Divorce Judgement. This Application for child support, if successful, will effectively vary the Michigan final consent order.
[25] While the mother raises various issues, the ones that determine this motion relate to the foreign divorce (with child support terms) that was issued by a jurisdiction which is a signatory to ISOA.
[26] Having reviewed the relevant legislation and caselaw I find that the Court lacks the requisite jurisdiction for the following reasons:
a. A foreign support order that is properly made and is in full force and effect is not only relevant but is binding upon the parties. As a matter of public policy there should not be two outstanding support orders. [12] A child support order in Ontario creates two competing orders.
b. It is well established that, generally speaking, a court cannot vary a corollary support order contained in a foreign divorce under the Family Law Act. This is logical for a variety of reasons as set out in the caselaw. The only mechanism to make such a variation is pursuant to the interjurisdictional support statutes. [13] Given that the Court cannot vary a federal child support order by Ontario legislation in accordance with the principles of paramountcy, one ought not be able to vary a child support order contained in a foreign divorce judgment by provincial legislation. The Court should be respectful of orders made by foreign courts (as per the notion of comity).
c. In the leading Ontario Court of Appeal case of Cheng v. Liu, 2017 ONCA 104, [14] the court permitted the adjudication of child support where there was no existing foreign divorce order incorporating provisions for child support. This decision has been considered approximately 27 times since its release in 2017. The cases below provide certain instances/exceptions where the Court may make an order for child support in accordance with the Family Law Act, even though there is a valid foreign divorce order. The first three instances/exceptions clearly do not apply for the following reasons:
i. The foreign divorce is silent as to child support. The Ontario Court has the jurisdiction to make an original order for child support. [15] This approach follows Cheng v. Liu.
ii. The jurisdiction that issued the foreign divorce (with child support provisions) is not a reciprocating jurisdiction under the ISOA. The Ontario Court has the jurisdiction to make an original order for child support. The Unites States is a reciprocating jurisdiction. [16] This exception does not apply.
iii. There is flagrant non-compliance with the existing order for child support as contained in the foreign divorce. [17] Not only has the father fully complied with the Divorce Judgment, he is in compliance with the Bird J. without prejudice order for increased child support and 80% of the child’s section 7 expenses. This exception does not apply.
iv. The fourth instance/exception to the limits imposed in Cheng v. Liu was considered by Diamond J. following a review of various cases (that were decided both before and after the Court of Appeal decision). In summary, where there has been a material change in circumstances leading to a legitimate claim for custody and access in Ontario, and where the Court is satisfied that a foreign order for custody and access should be superseded, the issue of child support can arise anew. However, the parenting time claims cannot be a tactic to establish jurisdiction to claim child support or an attempt to forum-shop as a means to obtain a better order than that contained in the foreign divorce.
v. In Leavens v. Fry, 2020 ONSC 5077, the Court found that the mother’s decision not to relocate to Ontario, in contradiction of the consent terms of the foreign divorce, required new provisions for parenting and child support. The agreement that no child support would be payable by either party was premised on all family members moving from Connecticut to Ontario, and a shared parenting schedule. A material change in circumstances had taken place since the issuance of the foreign divorce order and the subsequent relocation order (that permitted the move in the absence of the mother’s consent). The new circumstances cried out for a variation of the terms contained in the foreign divorce. Diamond J. found that the Ontario Court had the requisite jurisdiction to make an original order for child support. [18] Given the facts of that case the father had a viable claim for child support in the face of a foreign divorce that specifically provided for no support.
It is tempting to find that this exception applies here. There are parenting claims before this Court and such a finding avoids the need to have a second proceeding by ISOA. However, the mother’s claim for supervised access is disingenuous. The child has not attended access (supervised or otherwise) since August 2016 [19]. The father’s primary parenting claim is to enforce the terms of the Divorce Judgment.
The facts of this case are distinguishable from Leavens v. Fry. From the time of separation onwards the mother has always had primary care of the child in Ontario. The Divorce Judgment provisions for child support are premised on same, and the amount payable is approximately $2,282 per month. The father has always resided in the United States and has been consistently clear that he wants a relationship with the child. The Divorce Judgment contemplated regular parenting time.
The absence of a meaningful relationship between father and child likely relates to some combination of the mother’s refusal to make the child available for parenting time, the child’s subsequent refusal to have contact with the father, and historical issues with the father/child relationship. Problems with the father’s ability to exercise parenting time existed in 2011, [20] and continue today.
The Section 30 parenting assessment recommended a continuation of the joint major decision-making, and parenting time in accordance with the child’s wishes. The assessor did not support the mother’s request for supervised access. Dr. Radovanovic expressed hope that the child would be open and receptive to a relationship with her father and family in the future.
Both parties agree that aside from child support (which is a significant issue) there is little, if anything, in dispute. The father’s lack of parenting time (which he neither supports nor desires) does not “cry out” as a reason to permit the mother to seek a change to the child support in the face of a foreign divorce order.
I find that the fourth instance/exception does not apply.
d. Other than as set out above, where child support is included in a foreign divorce order any variation must proceed in accordance with ISOA. While it is true that the ISOA is not obligatory where parties wish to vary terms of a separation agreement, no other option is available in Ontario where there is a foreign divorce incorporating child support terms. [21]
[27] On the facts of this case, ISOA is a complete code for obtaining a new child support order. A court in the United States will decide whether to accept Ontario’s provisional order (or perhaps request more evidence or dismiss the application to vary/provisional order entirely). That Court will also have its choice of law.
[28] As the Court does not have the required authority to adjudicate the child support issues, the father cannot be found to have attorned to the jurisdiction. A mistake in law (such as attornment) can be corrected. Parties cannot confer jurisdiction where there is none.
[29] The father has met the test for summary judgment which is set out in Rules 16(1) and (6), of the Family Law Rules, [22] as amended. A court may dismiss all or part of a claim on the basis that there is no genuine issue requiring a trial:
16(1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.
…
16(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.
[30] As the Court lacks the required jurisdiction there is no genuine child support issue for trial. I recognize that this determination leads to further delay as the mother needs to commence a claim under ISOA. However, it is not just or a productive use of resources to require a trial in respect of retroactive and/or ongoing child support and section 7 expenses given my decision.
[31] My final thoughts are as follows. Notwithstanding this decision on jurisdiction, it is in the child’s best interests that the parties devise an agreement on all child support issues which ensures that she can graduate from her private school. To prevent her from doing so may well cause added stress and trauma. This agreement should also address the child’s financial needs through her first post-secondary degree in Canada. I have no evidence as to the value of the MET College contract that the father is obliged to provide, or whether this is sufficient to cover her expenses while residing with the mother and/or living away from home. Moreover, I note that while the parties agreed to the terms of the Divorce Judgment, the child did not. She is not bound to that order. It would be highly unfortunate if the child feels compelled to bring a claim for child support against the father. The parties are encouraged to engage in mediation.
Order to Go
- The Applicant’s claims for retroactive and ongoing child support and section 7 expenses are hereby dismissed.
- As agreed, costs payable by the Applicant to the Respondent in the amount of $10,000, inclusive, within 30 days.
Justice A. Himel
Date: January 13, 2023
[1] R.S.C. 1985, c. 3 (2nd Supp.). [2] R.S.O 1990, c. F.3. [3] Children’s Law Reform Act, R.S.O. 1990, c.C.12. [4] As per the father’s motion materials, the judgment provides six weeks of parenting time, however, the mother only made the child available for two weeks. [5] As per the mother’s Application, although the S.30 assessment suggests that the counselling may have started after the father’s parenting time was suspended. [6] As of February 16, 2021, there had been no parenting time aside from some sporadic reunification therapy sessions from June 2018 and into 2019. It is unclear if these were joint sessions between the father and child. [7] S.O. 2002, c. 13 [“ISOA”]. [8] I reject the father’s argument that he intended this to mean that the Ontario Court, through ISOA, has jurisdiction. That is not what the letter states. [9] Both parties agreed to these terms. [10] It is tempting to focus on attornment. If this issue was determinative (which it is not), I would reject the father’s argument that the Bird J. consent order cannot be relied upon as evidence of attornment, as it was made on a without prejudice basis. A without prejudice child support order is without prejudice to a party’s right to a different amount and/or a different start date. It is not without prejudice to one’s right to argue that the Court lacks jurisdiction to make such an order. [11] O. Reg. 391/97. [12] Sun v. Guilfoile, 2011 ONSC 1685, 105 O.R. (3d) 439. [13] Rubio v. Joslin, 2018 ONCJ 167, at paras. 43-45, citing Rothgeisser v. Rothgeisser (2000), 46 O.R. (3d) 577 (Ont. C.A.) and Okymansky v. Okymansky, 2007 ONCA 427, 86 O.R. (3d) 587. [14] 2017 ONCA 104. [15] See e.g., Zeineldin v. Elshikh, 2020 ONSC 1160, at para. 15. [16] Rubio, supra. [17] Krause v. Bougrine, 2022 ONCA 161, 468 D.L.R. (4th) 53. [18] Leavens v. Fry, 2020 ONSC 5077. [19] As per the Section 30 assessment, in April 2018 (when the child was age 11), the parties agreed to an order for supervised therapeutic access that delineated increasing and graduated parenting daytime contact on the father’s weekends over several months. However, the terms of the order were not implemented. There were sporadic reunification therapy sessions which took place from June 2018 into 2019, until the therapist withdrew as the counseling was not successful. It is unclear if these were joint sessions between the father and child. [20] The Divorce Judgment includes a provision for counselling to facilitate parenting time even though the child was only four years of age. [21] Virani v. Virani, 2006 BCCA 63, 52 B.C.L.R. (4th) 112, cited and distinguished in Jasen v. Karassik, 2009 ONCA 245, 95 O.R. (3d) 430. [22] O. Reg. 114/99.