Attard v. Attard, 2010 ONSC 810,  W.D.F.L. 1700,  W.D.F.L. 1701
The following decision deals with the issues of child support and the enforcement of an extra-provincial order. When the parties separated in 2002 they were residing in Florida with their two children, Justin and Kassandra. That same year the mother obtained orders for custody and support of the children and relocated with them to Ontario. The next year the mother, who was at this point residing in Ontario with the children, brought a motion in a Florida court to increase the child support order which was consented to by the father.
In 2004, the father ceased making support payments which resulted in the mother bringing yet another motion in Florida to deal with the enforcement of said order. At this proceeding the mother agreed to link support and access issues such that if she denied the father of his right to access he could refrain from making payments. The aforementioned occurred and despite her initial consent, the mother brought a final motion in Florida to enforce the support order.
The General Magistrate there recommended that due to her significant history of denying access to the father, child support payments should cease as agreed to. That recommendation was incorporated into a decision and support was effectively terminated.The mother did not attempt to appeal or vary the final decision in Florida, rather she applied to an Ontario court and sought an order for support.
The history of the proceedings is crucial in this case because it is illustrative of the implied acceptance, on the part of the mother, of the jurisdiction of the Florida courts with regards to the support and custody/access issues. It is only when a decision was reached that was unfavorable to her situation that she opposed the jurisdiction of the Florida courts and applied within Ontario. Otherwise known as "jurisdiction shopping" this is generally not tolerated by judges as is evinced by the reasons of Justice Ricchetti in this judgment whereby he recognized and enforced the extra-provincial order.
He identified that there are three provisions of the Children's Law Reform Act which provide the applicable tests, ss. 19, 41(1), and 42(1)-(2). Briefly, s. 19 states that the purposes of the act are to recognize and enforce orders for custody granted by a foreign jurisdiction unless there exist exceptional circumstances which warrant the setting aside of said extra-provincial order. Section 41(1) provides a list of circumstances that if satisfied will result in the setting aside of an extra-provincial order. Lastly, s.42(1) and (2) allow a court to supersede an extra-provincial order if it is satisfied that there has been a material change in circumstances that affects or is likely to affect the child.
Justice Ricchetti briefly explained and applied the facts of the case to each provision. He affirmed that the mother had failed to satisfy each test. He also considered the obligation imposed by s. 31 of the Family Law Act. This section states that every parent has an obligation to financially support his or her unmarried child. Generally this obligation cannot be bargained away by parents nor is it common in Ontario for access and support to be linked. However, there do exist exceptional circumstances which will allow for it, such as:
- where the custodial parent has sufficient assets and income and the children will not be deprived of appropriate support,
- when the children are older, and
- where the parents have consented to conditional support.
Lastly, he emphasized the fact that the order from Florida linking support and access, and to which the mother consented, stipulated that any disputes arising therefrom would be dealt with in a Florida court. This further reinforced his reluctance to interfere and so he refused to exercise his discretion or set aside the extra provincial order. Instead, Justice Ricchetti dismissed the application and did not award any costs.