“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: Sun v. Guilfoile, 2011 ONSC 1685, 105 O.R. (3d) 439. 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: Rubio v. Joslin, 2018 ONCJ 167, at paras. 43-45, citing Rothgeisser v. Rothgeisser (2000), 2000 CanLII 1153 (ON CA), 46 O.R. (3d) 577 (Ont. C.A.) and Okymansky v. Okymansky, 2007 ONCA 427, 86 O.R. (3d) 587. 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 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: See e.g., Zeineldin v. Elshikh, 2020 ONSC 1160, at para. 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: Rubio,supra. This exception does not apply.
iii. There is flagrant non-compliance with the existing order for child support as contained in the foreign divorce: Krause v. Bougrine, 2022 ONCA 161, 468 D.L.R. (4th) 53. 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. Liuwas 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, 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: Leavens v. Fry, 2020 ONSC 5077. 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. 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, 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.
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 ISOAis 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.”: 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.