COURT FILE NO.: FC-21-86-IS00

DATE: 20231020

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: German Federal State of Bavaria, Applicant

AND:

Domenico Gobeo, Respondent

BEFORE: The Honourable Mr. Justice J.P.L. McDermot

COUNSEL: Heather Pachulu, for the ISO Unit Family Responsibility Office (appearing as amicus curiae and to make submissions concerning registration of the order)

Evgeniy Osipov, for the Respondent

HEARD: October 11, 2023

ruling

[1] Mr. Gobeo is the father of a child who lives in Germany. The child’s name is Robin Renk and he is about to turn 18 years old having been born October 31, 2005.

[2] Mr. Gobeo acknowledges that he is the father of the child. He says that Robin is the product of a brief relationship that he had with the mother, Korina Renk, which ended after two or three years. He says that the last communication that he had with the that family was in 2008.

[3] The mother never sought child support. Her right to child support was assigned to the Applicant State and notice of the assignment (referred to in the Bavarian ruling as a “notification of devolution”) was mailed to the Respondent in Ontario on June 22, 2017. Thereafter, child support proceedings were commenced by the Applicant in Munich. The Applicant sought to serve process on the Respondent by registered mail, but the Respondent failed to pick that mail up and says he was unaware of the proceedings. On June 24, 2019, a child support order was made against the Respondent by Dr. Bornstein of the Munich Local Court. Mr. Gobeo was ordered to pay €273.00 per month from September 1, 2018, €282.00 per month from January 1, 2019 and €272.00 per month from July 1, 2019. He was also ordered to pay arrears of €3,591 from July 1, 2017 to August 30, 2018. Mr. Osipov advises that based upon the filed currency conversion, Mr. Gobeo was effectively ordered to pay ongoing child support of $412 per month in Canadian dollars.

[4] The order was transmitted to Canada for registration under s. 19(1) of the Interjurisdictional Support Orders Act, 2002[^1] (“ISOA”). The order was registered under ISOA on January 28, 2021 and notice of the registration was served on the Applicant on November 23, 2021. The Respondent brought an application to set aside the registration without counsel by way of 14B motion; when that was set aside without prejudice, he served this motion. The Applicant took no issue with compliance with ISOA’s provisions as to the setting aside of the registration of this order.

[5] Mr. Gobeo says that the Notice of Registration was the first time that he heard of the child support proceedings brought against him in Germany. He says that he was never served with process concerning the German child support proceedings and that he never had a chance to attend to defend himself in those proceedings. He also says that the amount of child support that he would have to pay according to his income under the Child Support Guidelines would be about $107 per month; the child support ordered by the German court was nearly four times more. He seeks to set aside the registration of the order under s. 20(4) of the ISOA.

[6] The delays under the ISOA are well known. Dr. Borstein states in his ruling that the child support that he ordered will terminate when the child turns 18. It is troubling that the child support has only now come before this court just prior that 18th birthday.

[7] The statute requires written reasons for any decision setting aside a registration. For the reasons set out below, I have determined that the registration shall be set aside. These are my written reasons.

Analysis

[8] The Respondent seeks to set aside the registration of this order on the grounds set out in s. 20(4)(b) of the ISOA. That section sets out the grounds for setting aside a registration as follows:

(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.

[9] No issue of jurisdiction of the Munich court was raised. Therefore, the major issues as argued are as follows:

a. Did the Respondent have proper notice of the German child support proceedings or a reasonable opportunity to be heard?

b. Is the support order made by the German court contrary to public policy in Ontario?

Notice of Proceedings

[10] The Respondent deposes that he had no notice of the child support proceedings commenced in Munich. He says that he first heard of the child support claim when he received notification of the registration of the Munich order in Ontario which was served on him on November 23, 2021.

[11] The Applicant argues that the Respondent’s position is disingenuous and that he was wilfully blind to the proceedings. The affidavit filed by the representative of the ISO unit in Ontario, Roshni Juttun, points out that the Applicant State attempted to serve process by registered mail and that the mail was not picked up or claimed by the Respondent. The address to which the documents were mailed by the Applicant is the same address that the Respondent has set out as his address for service in this proceeding. The judge who decided the case in Germany notes that other correspondence concerning child support had been previously sent by the German courts to the Respondent as early as June 17, 2017, 18 months before the order was made and he also notes that “service [was] effected after respondent did not pick up registered mail.” Implicit in this statement is that service by registered mail is sufficient under German law.

[12] That affidavit also states that the originating state is in compliance with the Hague Convention on Service Abroad[^2] to which both Germany and Canada are signatories. That convention provides that documents are served extrajudicially between contracting member states through the applicable central authority which may serve as provided for in the state in which service is being effected: see Article 5 of the Convention. Compliance with Article 5 means that service on the Respondent would have been personal rather than by registered mail as the latter is not an approved method of special service under the Family Law Rules.[^3] It also provides a mechanism for translation of the document into the official language of the state in which the documents are served: again see Article 5.

[13] However, the Applicant relies upon Article 10 which states that the Convention does not interfere with “the freedom to send judicial documents, by postal channels, directly to persons abroad.” This bypasses the requirement of service through the central authority and Article 5 noted above. Assuming that service by mail is a method of service which is acceptable under German law (and the Munich judge seems to have determined that to be the case), service of the documents appears to have been in order according to the law of the jurisdiction which made the support award in this case.

[14] However, the issue for s. 20(4)(b)(i) of the ISOA is not necessarily whether service is acceptable under German law. The issue is whether the Respondent received “proper notice” of the proceedings and whether he had a “reasonable opportunity to be heard.” I do not believe that the Respondent had either.

[15] Firstly, “proper notice” is not necessarily the same as legal notice. Implicit in the term is that the method of service of the Munich child support proceedings would reasonably bring them to the attention of the Respondent. In the present case, I do not believe that it did.

[16] Although the Respondent was served according to German law, he did not pick up his registered mail and he may very well not have known what was in the registered mail that was waiting for him at the post office. Dr. Borstein pointed out that there was a “notification of the devolution of the child's maintenance claim dated 22 June 2017, and by further letters, of the granted advance maintenance payments for his child and was told that in order to have the effect of discharging his debt, he had to pay back all maintenance amounts exclusively to the Federal State of Bavaria;”[^4] however, a copy of that notice was not provided in the Applicant’s material and it is unknown whether a translation of the document was provided to the Respondent who is of modest means and who also confirms that he does not understand or speak the German language. He could only have been wilfully blind of the proceedings if he knew what was in the registered mail and if he did not understand the “notification of devolution”, he may very well not know that child support was being claimed by the Applicant. Mr. Gobeo may very well not have understood that proceedings were being commenced or that the registered mail that he did not pick up was notice of commencement of those proceedings.

[17] As well, “proper notice” implies that the mailed notice of the German child support proceedings would have come to the attention of the Respondent Payor and allowed him to respond. In this jurisdiction, service would have had to be through “special service” as defined in r. 6 of the Family Law Rules. Rule 6 is designed to ensure that the responding party has notice of the proceeding and special service is, most often, achieved through personal service on that responding party (although mail service is permitted, there must be a signed acknowledgment that the document was received by the Respondent). Registered mail alone is not seen as good service on a responding party precisely because of what occurred in this case: the Respondent may not pick up the mail and therefore the court may be uncertain as to whether the proceedings have come to his knowledge.

[18] Moreover, I was not provided with the Notice of the Bavarian application for child support intended to be served on the Respondent. I was not advised as to whether there was an English translation of that notification; again the Respondent says that he does not speak or understand German. He was only given 30 days to respond to the German proceedings and there is no evidence as to whether legal services were available to the Respondent in Germany if he had wished to respond or whether a virtual hearing was available to him rather than personal attendance. Exploring those options takes time and this is the reason that the Ontario rules provide that out of country service (other than service in the U.S.) allows a Respondent 60 days to respond to Ontario family law proceedings: see Osborn v. Towaij, [2002] O.J. No. 1789 (S.C.J.) where a 15 day notice was seen as being insufficient considering the 30 day period that the payor would have had to respond in Ontario.

[19] Had Mr. Gobeo picked up his mail or been otherwise personally served, it appears as though he was left with 30 days to translate the document, determine whether there were legal resources available and whether he had to attend in person in Germany and file responding documentation. This would be challenging if not impossible for an individual of modest means such as the Respondent. He was not given a reasonable opportunity to respond or be heard in these proceedings even were he served personally with the application. The Applicant would have been better advised to seek remedies under the ISOA by requesting that the Ontario central authority litigate child support here where the Respondent is of modest means and language abilities and would not reasonably have the ability to respond to the foreign proceedings: see Waszczyn v. Waszczyn, 2007 ONCJ 512 and Ziemianczyk v. Ziemianczyk, 2008 CarswellOnt 2147 (O.C.J.).

[20] I therefore find that the Respondent was given neither proper notice nor a reasonable opportunity to be heard in the Bavarian child support proceedings. On this basis alone, the registration of the order must be set aside.

[21] I am now going to consider the second ground proposed by the Respondent to set aside the registration which is whether the order offends public policy as a result of the non-compliance with the Child Support Guidelines. [^5]

Public Policy Issues

[22] Under s. 20(4)(b)(ii), the registration of an order may be set aside where it is contrary to public policy in Ontario.

[23] The courts have determined on occasion that the child support ordered in the foreign jurisdiction, if seen as excessive in light of the Child Support Guidelines, may offend public policy.

[24] In Ziemianczyk, supra, child support was ordered against an individual whose income was below the threshold in Ontario where child support would be payable under the Child Support Guidelines. The court found the foreign order, which ordered child support against an individual with no income whatsoever, to be offensive to public policy.

[25] In doing so, the court cited and adopted G. (M.W.) v. (A.) K.A., [2012] N.B.J. No. 441, 2012 NBQB 402, 36 R.F.L. (7th) 168 (N.B. Q.B.), where Morrison J. set aside the registration of the foreign order made in Maine on the basis that it was offensive to the court’s sense of morality:

The retroactive award contained in the Maine Order is more than seven times greater than that which would likely have been ordered had New Brunswick law been applied. In my view, the Maine Order provides for child support that is not only excessive, but grossly excessive. In essence, it is a question of degree. The difference between what the applicant is required to pay under the Maine Order and what he would have been required to pay had the laws of New Brunswick been applied is so great that, to use the words of Justice Major in Beals, it offends one's sense of morality. I set aside the order pursuant to section 19(3)(b)(ii) on the grounds that the Maine Order is contrary to public policy in New Brunswick.

[26] The response of the ISO unit in Ontario on behalf of the Applicant is that the Bavarian order was only made at the minimum amount of support because the Respondent did not provide his income information to that court. All that he had to do was to provide his income to the German court and had he done so, the German court would not have imposed the order it did. However, I have already determined that it was unreasonable to expect that a person of the Respondent’s means and ability could adequately respond to the Bavarian child support proceedings. There was therefore no reasonable opportunity for the Applicant to have provided his income information to the German court under the circumstances.

[27] The present support order that the Applicant seeks to enforce is the equivalent of $412 per month retroactive to 2017. The Respondent deposes in his affidavit that he makes $23,400 per year, but his Form 21 filed in his bankruptcy in December 2021 indicates his income to be $16,992 per annum. This is notwithstanding the fact that his 2020 tax return shows him making gross income business income of $23,400 per year but net income of $17,784 per year. Mr. Gobeo’s affidavit and 2020 return provides three different income levels. At the higher amount of income that he deposes that he makes, Mr. Gobeo should be paying child support of $187 per month, making the award just more than double the amount of child support that he should have paid. At the lower income level set out in the bankruptcy, Mr. Gobeo’s support obligation is $117 per month, just over a quarter of what was ordered. He has failed to disclose his income in 2021 or 2022.

[28] The court must be cautious in setting aside an order as offensive to public policy. To make a finding under that subsection, non-compliance with the Child Support Guidelines alone is not sufficient; the amount awarded for child support in the foreign jurisdiction must be offensive to the conscience of the court. Because I am uncertain on the evidence as to the amount of the Respondent’s true income, I hesitate to make a finding that the child support ordered in Germany is offensive to public policy or the Guidelines. Therefore, I decline to make a finding that the Bavarian child support award offends the court’s “sense of morality” or to set the order aside on public policy grounds.

Result

[29] There shall be an order to go setting aside the registration of the order based upon the Applicant’s lack of proper notice of the proceedings and his inability to reasonably respond to the Bavarian proceedings under s. 20(4)(b)(i) of the ISOA.

[30] This proceeding is now a child support proceeding pursuant to s. 21(1) of the ISOA. The next step is a case conference to be set through the office of the Trial Coordinator in Barrie.

McDermot J.

Date: October 20, 2023

[^1]: S.O. 2002, c. 13 [^2]: Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. [^3]: O. Reg. 114/99 [^4]: Reasons of Local Judge Dr. Borstein dated June 24, 2019 [^5]: O. Reg. 391/97