Michael Stangarone and Juanita Valencia | Mar 2022

This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.

In the recent case of Ontario (Family Responsibility Office, Director) v. Bougrine [2022] O.J. No. 939, the Ontario Court of Appeal addressed whether an Ontario court could make a support order when such an order already exists in Finland, but that order is unenforceable in Ontario because it has been set aside by an Ontario court.

The legislation at issue was the Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13 (ISO Act), which allows parties to obtain, vary and enforce support orders involving one party who lives in Ontario and one party in a reciprocating jurisdiction. Once an order has been
registered/established/varied, it can be filed with the Family Responsibility Office (FRO) for enforcement. The FRO will then enforce such an order the same way it would enforce an Ontario order.

The case involved a couple who was married in Finland in 2003, had two children and divorced in 2004. Hassan Bougrine was a resident of Ontario since 2007, where he was employed as a professor at Laurentian University and as chair of the university’s commerce department. Catarina Krause had resided in Finland with the two children since their birth, except for a 14-month period between 2012 and 2014 when Bougrine abducted the children and took them to Morocco. Finland is a reciprocating jurisdiction pursuant to the ISO Act.

In 2010, a court in Finland awarded custody of the two children to Krause and made a support order requiring Bougrine to pay child support (the “Finnish order”). Bougrine appealed this decision to the Finland Turku Court of Appeal, which dismissed his appeal in 2011. Bougrine paid child support for a brief period in 2009 and 2010 but failed to pay any support from 2010 until June 2019.

In 2014 the Interjurisdictional Support Orders Unit (the “ISO Unit”) of the FRO received a letter from
the minister of justice in Finland requesting the registration of the Finnish order and the 2011 appeal order in Ontario for enforcement against Bougrine and claiming support arrears as of Sept. 17, 2014. The orders were sent to the Ontario Court of Justice and were registered in December 2014.

Bougrine brought a motion in the Ontario Court of Justice to set aside the registration. Bougrine
argued that his permanent residence was in Morocco and that he had not received notice of the
Finnish proceedings. In 2015, the motion judge set aside the registration of the Finnish order on the basis that Bougrine did not have proper notice or a reasonable opportunity to be heard. However, much of Bougrine’s evidence was false: he had in fact been personally served with the originating Finnish application, was present during those proceedings and had the benefit of legal counsel. Moreover, it was clear that Bougrine’s permanent residence was in Ontario, where he had been employed full time since 2007 and where he owned real property.

In 2018, the ISO Unit commenced proceedings in the Ontario Court of Justice seeking support for the children in accordance with s. 21 of the ISO Act, which provides:

If the registration of an order made in a reciprocating jurisdiction outside Canada is set aside under section 20, the order shall be dealt with under this Act as if it were a document
corresponding to a support application received under paragraph 2 of section 9 or a support variation application received under paragraph 2 of s. 32.

The motion for child support was heard by Justice Andre Guay in 2019. Justice Guay rejected
Bougrine’s argument that s. 21 invalidated the order whose registration has been set aside as well as his argument that the matter should be returned to the Finnish courts. Justice Guay concluded that the proceeding ought logically to be brought in the jurisdiction where the income of a payor can be attached. Justice Guay ultimately made a final order in October 2019 requiring monthly payment of child support per month for the two children based on Bougrine’s Child Support Guideline income and payment of child support arrears as of May 1, 2019.

Bougrine appealed the decision to the Superior Court of Justice. The appeal judge allowed the appeal and quashed the motion judge’s decision for “want of jurisdiction.” The appeal judge’s reasoning was as follows:

1. The fact that there were now two child support orders in existence, one in Finland and one in Canada, was problematic;
2. Pursuant to Cheng v. Liu 2017 ONCA 104 (Ontario Court of Appeal), the Finnish court has
exclusive jurisdiction over child support because such court granted the divorce and issued an order for child support.

The ISO appealed.

The Court of Appeal’s decision was authored by Justice James MacPherson, who concluded that the initial decision by Justice Guay was correct.

At paragraphs 32 and 33, Justice MacPherson explained that s. 21 was triggered by Bougrine’s
conduct and that the ISO correctly brought a motion under this section “in an attempt to remedy an egregious situation — dishonest obtaining of an Ontario court order and concomitant non-compliance with a valid Finnish court order.” In these circumstances, s. 21 of the ISO Act specifically empowers an Ontario court to hear a new support application.

Justice MacPherson further held that Cheng v. Liu did not support the appeal judge’s analysis, as the issue in that case was the interplay between the federal Divorce Act and the Ontario Family Law Act. In contrast, the ISO Act is coincident in intent and purpose and explicitly provides for the exact remedy sought. Therefore, it was not open to the appeal judge to quash the motion judge’s decision for want of jurisdiction.

Finally, in addressing the appeal judge’s concern about a potential for double recovery, Justice
MacPherson clarified that the international support order regime was one of co-operation and
information sharing between experienced government agencies, who were committed to avoiding
duplication. More importantly, at paragraph 42, Justice MacPherson highlighted the real danger in
these types of situations:

“It is not potential double recovery; it is no recovery. The ISO Act, and the people who
administer it, are an important provincial, national and international vehicle in the attempt to ameliorate this real problem."

The court allowed the appeal and restored the order of Justice Guay.

The Court of Appeal’s decision is a reminder to payors under international support orders that Ontario courts have the jurisdiction to enforce these orders and that their support obligations will not necessarily be terminated if the international order is set aside. Instead, the ISO Act empowers Ontario courts to make orders that further the objectives of the Act, which is to establish a fair and workable system for providing support for dependents who have a parent/spouse living in a different jurisdiction.

Michael Stangarone is a partner with MacDonald & Partners LLP where he practises exclusively in
family law. Juanita Valencia is an associate at MacDonald & Partners LLP. Valencia obtained her law degree from Osgoode Hall Law school, where she completed an intensive program at Parkdale Community Legal Services and where she co-founded a student group for Latin American law students.

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